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Les diagrammas suivants illustrent la mAthode. 1 2 3 4 6 6 U' i".^ijpfpp" • ^ ^^ ' THE RULES OF COURy. ,<<^y .,Jr- ALPHABKTK^ALLY ARRANGED AND COLLATED FROM THEIR COMMENCEMENT TO THE PRESENT TIME. BY JAMES GRAY STEVENS, Esquire, One of the Judges of the County Courts of New Brunswick. SAINT JOHN, N. B. : .1. & A. McMillan, printers and publishers, 78 prince wm. street. 1874. aia la ^■."T"/'T mm MM T< Sir am rea seel in I mmmtiKmmmt To The Honorable JOHN CAMPBELL ALLEN, Sir,— lu dedicating this Wflrk to you, in grateful acknowledgment of your kindness 1 am but returning, in great part, the results of your own labour ' ready co'iyrS: " ''^ '"'""""" "' ^'^ ^"^^^' '^"^^ ^^«" ^"«^^ ^^ ^o- seek your" retrr'' ''"' ''' '"'^' ''"'"^'°" "'"^ ''"^''^^ ''^^ ''^^ «---- ^O" -» in mile'"" "''""' °' *''' ^'"'' ""' '^^ "^^ *" ^'^"^ ^^f--"' ^ ^^all not be wanting JAS. G. STEVENS. <...vi '.—I -.-.p I m wijP.w.^inqipM|piif|in«|^«| I WM I>REF ACE In the following Digest I have endeavored to embody, in a classified form, the various Decisions of the Supreme Court of the Province of New Brunswick, as contained in the Published Reports of Messrs. Berton, Kerr, Ar.i,EN and Hannay, and the Manu- script Reports of the late Chief Justice Cuipman, published in 1849, as edited and prepared by the present Mr. Justice Allen. The Digest also contains the Principal Cases unpublished in any of the above Reports, embracing a period from the year 1825 to Easter Term 1873 (inclusive), these latter numbering upwards of five hundred Notes, containing Decisions on the most im- portant departments of Common Law and Equity, and Equity Practice. I have gratefully to acknowledge my great obligation to Mr. Justice Allen in having, with a most willing liberality, not only placed these latter Notes at my disposal, but also in great part prepared them for publication with the utmost care, and at the expenditure of much labour, and by which the value of the Digest has been materially enhanced. I have likewise further to acknowledge his valued assistance rendered me in epitomizing and condensing in many cases the abstracts of the Judgments contained, in the published Reports. It is to be much regretted that the Cases, of which but a note is given, have not been continuously published in full, and that so many hkitnscs, so to speak, have been permitted in reporting the Decisions of our Court, marked, as all along they have been, by so much legal ability and learning, and justly claimable as common available property • it is so far well that they are now in some manner and extent preserved, — a circumstance mainly attributable to the attention and labour of Mr. Justice Allen. As to the mode in which the Digest is prepared, I am alone responsible. I have endeavored to classify the Cases under appropriate titles most likely to occur to the mind of the professional man, and whilst I have endeavoured to avoid unnecessary repeti- tion, the matter has been frequently referred to under diff'erent heads, facility of reference being kept always in view. Appended to the Digest, are the Rules of Court, alphabetically arranged and collated for ready reference. I have to acknowledge the kind assistance rendered mo by I. Allen Jack, E8C[., in supervising the proof sheets, thus having relieved me from labour, and greatly for- warded the publication of the Work. The typographical execution will, I feel confident, meet with approval, and whilst there will be found some errors in names and in cross references, these are attributable to my own oversight, not to any fault in the printer, and are of an immaterial nature, the errors in the cross references chiefly occuring in the letter A. I have in part noticed them in an Errata, and the professional student will understand and rectify the mistakes. An index of Names of Cases is given separately, distinguishing the published and unpublished Cases. How far t have succeeded in presenting a creditable Digest, 1 leave the Profession to judge, conscious, that notwithstanding its many defects and desirable amendments, now apparent, I have spared neither time nor labour in endeavoring to make it accept- able to them to whoso generous consideration and use it is now submitted. JAS. G, STEVENS. October, 1873. • Geo Joni Johi Wai Sir; Bob Will Jam( loaac Joshi John Edwi War( John Edwt poi to WiUi Ware SirJi Robei Georj Lemu (ap Nbi Nevill (Co ishe was Cot WiUit John I John Charli A. Ha CHIEF JUSTICES AND JUDGES OF THE SUPREME COURT, FROM THE FIRST SITTING OF THE COURT IN 178.") TO THE PRESKNT TIME. CHIEF JUSTICES. Appointed. Nov. 25, 1784 Resignetl. Died. George Duncan Ludlow, Nov. 13, 18()« Jonathan Bliss, June 28, 1809 Oct. 1, 1822 John Saunders, Oct. 19, 1822 May 24, lK:t4 Ward Chipinan, Sept. 29, 1834 Mich. Va. 1860 Nov. 26, 1851 Sir James Carter, Jan. 8, 1851 Sept. 1865 Robert Parker, Sept. 22, 1865 1865 William J. Ritchie, Dec. 6, 1866 JUDGES. James Ptitnam, Nov. 26, 1874 1789 Isaac Allen, Nov. 25, 1784 Oct. 12, 180(i Joshua Upham, Nov. 25, 1784 18<»8 John Saunders, Oct. 20, 1790 May 24, 1834 Chief Justice. Edward Winslow, July 2, 1807 July 1816 Feb. 9, 1824 Ward Chipman, Sen., June 28, 1809 John Murray Eliss, July 9, 1816 Aug. 22, 1834 Edward J. Jarvis, (temporary ap- pointment from October 1822 to April 1823.) William Botsfoi-d, April 2, 1823 December 1845 May 8, 18(H Ward Chipman, March 17, 1825 Mich. Va. 1850 Nov. 26, 1861 Chief Justice. Sir James Carter, July 12, 1834 Trin. Va. 1865 Chief Justice. Robert Parker, Oct. (i, 1834 1866 Chief Justice. George Frederick Street, Dec. 20, 1845 18.V) Lemuel A. Wilmot, Jan. 8, 1851 (appointed Lieut. Governor of New Brunswick, July 1868.) Neville Parker, M. R., 1854 August 1870 (Court of Clmncery was abol- ished, and the Master of Rolls was transferred to Supreme Court by Act 17 Vic. c. 67.) William J. Ritchie, Aug. 17, 1865 Present Chief Justice. John C. Allen, Sept. 22, 1865 ^ Dec. 6, 1866 [ October 1868 May 25, 1870 J John W. Weldon, Cliarles Fisher, Puisne Judges A. Rainsford Wctmore, • mmmm TABLE OF CONTENTS. A. Abaudonment, Abatement, Absconding Debtor, Abuttal, Acceptance, Accommodation TJill, Accomplice, Accord and Satisfaction, Account, Account Stated, Accretion, Ac Etiam, Acknowledgment, . Action at i^aw, 1. Comuioncement of Action, 2. Condition precedent to bring ing Action, 3. Form of Action, 4. Right of Immediate Action, 5. Right to determine Contract, G. Suspension of Action, 7. Before li^xpiratiou of Credit, 8. Former Recovery, 9 By and against whom Main tainable, 10. For what Maintainable, 1 1 . Notice of Action — Parties entitled to, 12. Joinder of Actions, Action on the Case, 1. By and against whom Slain tainable, 2. Negligence, 3. Nuisance, 4. Obstructions, Acquiescence, Acquittal, .... Adjustuunt, Administration. See Executors, etc Administration Bond. See Bond. Administrators. See Executors. Admiralty, ..... Admissions. ' See Evidence. Adverse Pos.se8sion. See Limitation, Advertisement, .... Affidavit, ..... 1. Authority to take — Before whom Sworn, I'AOE 1 1 1 2 2 3 3 3 3 3 3 3 3 4 4 5 5 5 5 5 5 6 6 9 9 12 12 12 13 14 15 15 16 16 16 etc. 2. Intitling, 3. In Particular Cases, 16 16 17 17 17 4. Particular Persons, 5. Jurat, . . . . 6. Miscellaneous, Affinity. See Jury. Agent — Agency. Sec Principal and I'AUE 18 18 19 Agent. 20. Agreenjcnt (Breach of), Alien, ..... Alteration, .... Albert Mining Co. Sec Joint Stock Company. Ambiguity, .... .Vmondment, .... 1. Pleadings, . 2 Writs—Returns. . 3. ill lids — Rolls — Bail-piece —Rule, 4. Miscellaneous, Ancient Deed, An.-- \ I in Equity. Soe Equity. Appeal, ..... Appearance, ... Appointment oi" Officer, . Apportionment of Damages. Appi'aisers, .... Apprentice, .... Appropriation of Payment, Appurtenances, Arbitration and Award, . 1. Submission and Reference 2. Revocation. . 3. Matters vitiating .\ward. 4. Setting aside Award, r>. Jliscellancous, Arbitrators. See Arbitratl^iU. Arrest, Arrest of Judgment. See Practice VI Articles. See Shipping Law. Assault. See Tresp:is.s V., Criminal Law. Assessment, .... 1. Parties liable for, 2. Proceedings-r-School Ass ment, . 3. iMiscellaneous, Assets. See Executors, etc. Assignee, .... Assignment, Assumpsit, .... 1. Generally, . 2. Parties, . . 21 21 22 22 22 22 22 24 25 26 26 26 27 27 28 28 28 28 28 28 28 28 29 29 31 33 35 35 36 37 39 39 41 41 42 TABLE OF CONTENTS. 3. Money Counts, . Account Stated, Money Had and Received Money Lent, Quantum Meruit, Indebitatus Assumpsit, Goods Bargained and Sold >ioney Paid, 4. Miscellaneous, Asportavit, .... Attachment, .... Attorney — Barrister — Counsel, 1. Admission, 2. Striking off KoU, 3. Privileges, 4. Uncertificated, 5. Authority, 6. Duties, 7. Liability, 8. Bill of Costs, 9. Taxation of Costs, 10. Miscellaneous, Attorney General, . Authority, .... Autrefois Acquit. See Bastardy. Averment. See Pleading. Award. Sec Arbitration. B. 42 42 43 47 47 48 48 49 49 49 .,0 52 52 52 52 53 53 54 54 54 54 55 57 57 Bail, 58 A. Discharge, . 58 Ji. Relief — .Application for, 58 (/'. Limit Bond — Sureties, 60 D. Render, 01 Bail (Common). See Practice. Bail Bond. See Bond Ji. Baillee, Gl Bailment, .... Gl Bailiff, 62 Bank, 62 Bank Note, .... 62 Bank Stock, .... 62 Bankrupt, .... 62 Bastardy, .... 63 Bills and Promissory Notes, 64 1. Requisites — Form — Opcratio n, 64 2. Parties — Rights — Ijiability— - Acceptance, . 66 3. Presentment — Demand, 68 4. Notice of Dishonour, 70 5. Defence, . . . . 72 6. Miscellaneous, 78 Bill of Lading, . . . . 80 Bill of Parcels, . . . . 80 Bill of Sale, 80 Bill in Equity. See Equity (Practiec in) Bill of Exceptions, . . . . 80 Board of Health, . *. 80 80 Boarding House Keeper, Bodily Harm. See Criminal Law. Boomage, .... Bond A. Limit Bond, JJ. Bail Bond, V. Replevin IJond, . D. Administration Bond, . J'l Arbitration Bond, Miscellaneous, Bond and Warrant of Attorney. Sec Warrant of Attorney. Boundary. See Crown Grant. Boundary Lines, .... Breach. ...... Breach of Agreement. See Agreement, 21 ]?reaking open Doors, ... 85 British North America Act, 1867, . 85 British Statutes, .... 86 Bye I-aw, 87 80 80 81 82 82 83 84 84 85 85 Calls, Canada, . . . . . Canadian Court. See Judgment III. Capias, . . . . . Carleton AVatcr Wt)rks, Carrier, . . . . . Casual Ejector. See Ejectment III., " Practice VIII. Caveat Emptor, .... Certainty. See Justice of Peace (Convictions.) Certificate of Judge. See Judge. Certified Copies of Deeds, • ' . (ycrtified Fees, .... Certiorari, . ■ . . . 1. When it lies — Wiien granted, 2. Time of Application — Delay, 3. iMiscellaneous, Cestui Que Trust, . Challenge, .... Chamber Practice, Chattel, .... Check, .... ('hild. See Illegitimate Child, Chose in Action, Church of England, Church Corporation, See Church of Kngland. Church Wardens. See Church of England. City Court, . . City Councillor, ('ity of Fredericton. See Frcdericton Cognovit, .... Collector of Customs. Cimiinissionor of Highways, 88 88 88 88 88 161 89 89 89 89 89 90 91 92 92 92 92 92 93 93 94 94 94 94 94 TABLE OF CONTENTS. zi Commissioner of Insolvency, . 95 Countermand, .... 118 " of Sewers, . 95 Covenant, 119 « to take Affidavits, 95 Credibility. See Witness. " of Water Company, . 95 Credit, 121 Commission Merchant. See Warranty 5. Creditor, 121 Common Carrier. See Carrier. 88 Criminal Law, 122 Common Counts, .... 95 1. Procedure and Practice, 122 Common School Act, 1871, 95 2. Indictment, 123 Comparison of Handwriting, . 96 Prosecutor — Allegations - — Competency. See Witness. Stealing— Place — Smuggling Composition — Agreement, 96 Copies of Indictment — Em- Composition Deed. Sec Deed — In- bezzlement-Different Counts solvent Debtor. — Separate Offences — Frau- Compulsory Liquidation, . 96 dulent Appropriation-Death Condition, 96 — Cause of — Felonious! y Condition precedent, . . . 96 Striking — Resisting Con- Condition in restraint of marriage, stable—Regulations— Breach See Will. of — Misdemeanour— Forgery Confession. See Cognovit — Crimina — Perjury. Jiaw. 3. Evidence, . 126 Confusion of Goods. See Trover 26 4. Miscellaneous, 126 Ueplovin 20. Criminal Information, 126 Consent llulo. Sec Kjuctment VII. (]ros8 Action. Sec Damages I. 11, 134 Consideration, 97 Cross-Examination, . 126 Consignee, 98 Crown, 127 Coustiiblo 98 Crown Bonds, .... 127 Contempt, .... 98 Crown Grant, .... 127 Continuing Security. See Warrant 1. Construction — Boundaries, 127 of Attorney. Evidence — Possession — Mean- Continuances, .... 99 ing of Words — Necessity of Contract, .... 99 Inquest of Office. Contribution, .... 103 2. Rights, 130 Contributories, 103 Mines and Minerals — Fishorv Conversion. See Trover. — Glebe — Seizin — Ferrj t Conveyance, .... 103 Right to Soil. Conviction. See Justice of Peace. 3. Exceptions,. 131 Coroner, .... 103 Mines— Minerals— Coal. Corporation, 104 4. Admission-Adverse Possession, 132 Corporate Name, 106 Against Crown — Extension of Costs, 106 boundiiries by — Subsequ Grant. snc 1. Record and Summary Allow- ance or Disallowance, 106 Crown Timber, 132 2. Taxation of Coste, 109 Crown Office. See Genqral Rules 98 3, Notice of Taxation, Hi Currency and Sterling, . 132 4. Review of Taxation, 112 Custom and Usage of Trade, . 132 6. Particular Proceedings — Par- Custom Duties, 133 ticular Persons, 113 Courtesy. See Tenant by Courtesy. 6. Several Defendants — Severa Issues, 114 D. 7. Security for Costs, 115 8. Double Costs, 116 Dam, 133 9. Offer to suffer Judgment bj Damages, .... 133 Default, 116 1. Principles — Recovery, . 133 10. Miscellaneous, 116 2. Evidence, . 136 Courts. See Titles diffbrnnt Courts 117 3. I'loadings, . 137 Counsel, .... 117 4. Default, 137 County Court, 117 5. Sotting aside assessinent of. 137 < bounty Court Judge. See Count j 6. Kxccssivo, . 138 Court. 7. Miacelluueuus, 138 '■ xn TABLE OP CONTENTS. Damage Feasant, .... 138 Diversion of Stream. See Damages 1 Death, 13d I. 30, 136 Debt— Debtor, .... 139 Divorce, .... 157 Deck Load, 139 Docketing of Judgment, 167 Deceit. See Warranty. Donatio Mortis Causa, . 157 Declaration. See Pleading — Practice , Dower, 157 Decree. See Supreme Court in Equity. Dedication, . . , . . 139 E. Deed 139 2. Voluntary Conveyance, 143 Easement, .... 157 3. Trust Deed, 145 Ecclesiastical Corporation. 4. Composition Deed, 146 See Church of England, . 93 5. Miscellaneous, 146 Ejectment. Defamation, 148 1. Lessor's Title, . 168 Actionable Words. 2. Between particular persons, 160 Privileged Communication. 3. Practical Procedure, . 161 Actionable Writing. 4. Setting aside or staying pro- Averments. ceedings. 162 Pleadings — Proof. 6. Miscellaneous, 163 Mitigation of Damages. 6. Mesne Profits, . 164 Defeasance. See Warrant of Attor- 7. Consent Rule, 164 ney, Rules 27. Election, 164 Defence. See Evidence VIII., Plead- Election Law, 165 ing III Entry of Cause, 166 Defending Warranted Title. See Entry by Clerk, . . . . 166 Warranty. English Statutes. Do Injuria, 151 See British Statutes, 86 Delay, .... 151 Enlarging Rule, 166 Delivery, Dcuiand of Particulars, . 151 Equitable Mortgage, 166 152 Equity 166 " of Payment, 162 Equity Appeal, 172 « of Plea, . 152 Equity of Redemption, . 172 Demand and Refusal, 152 Error (Writ of), . 172 Demurrer. See Pleading — Practice. Escape, 173 Departure in Pleading. See Pleading. Estate 173 Depositions. Sec Evidence IX., 196 Estojipel. Deputy, 162 1. By Acts, . . . . 173 Deputy Treasurer, . 152 2. Acquicsconco, 176 Derelict Land, 152 3. Opening up of Estoppel, 177 Description, . 152 4. Miscellaneous, 177 Descent/ Cast, 162 Evidence, 178 Devastavit, 162 1. Admissions — Declarations — Deviation, 162 Acts 178 Devise — Devisee. See Will. 2. Judicial, Official, and other Dies Non, 153 Documents, . 181 Diroctoi. See Corporation — Bank. 3. Particular Actions and Suits, 184 Disability. See Limitation of Actions. 4. Particular Facts, . 187 Disclaimer, 153 5. Parol Explanations, 188 Discharge 153 6. Presumptive Evidence, 189 Discontinuance, .... 163 7. Secondary Evidence — Notico Discovery of New Evidence, . 153 to Produce, . 190 Dishonour (Notico of). See Bills, 8. Examination of Witnesses on etc. IV. Trial, . . . . 193 Dismissal of Cause, 153 0. Commission — Interrogatories Disseisin, . . . , . 164 — Depositions, 196 Distress, 155 10. Admission from IMoading, , 197 Distress Warrant, 156 11. MiHCoUaneous, 198 Distribution. See Heir at Law. 12. Questions of Fact proper for Distringas, . • 166 Jury, . , . , 202 TABLE OF CONTENTS. zm 13 General Issue-Evidence under, 202 Exception, 203 Excessive Damage. See Damages, . 133 Excessive Distress, .... 203 Exchange, 203 Exchequer, 203 Execution, 203 1. Fieri Facias — Levy, . . 203 2. Capias ad Satisfaciendum, . 205 3. Setting aside Execution, . 205 4. Miscellaneous, . . . 205 Executors and Administrators, . 208 1 . Actions by and against, . 208 2. Rights and Liabilities, . . 208 Executor De Son Tort, . . . 210 Administration — Grant of — Proof— Probate, . 210 Miscellaneous, . . . .211 Exoneretur, 212 Experts. See Evidence. Expulsion, 212 ExtiDguishuicnt, .... 212 Extracts, 212 Extra Work, . . . .212 F. False Imprisonment, . . .212 False Plea, . . . . .212 False Representation, . . . 212 False Return, .... 212 False Statement, . . . .212 Fees 213 Fines, 213 Fires, 213 Fishery, 213 Fishing Vessel 213 Fixtures, . . . . . 213 Foreclosure, 213 Foreign Corporation, . . . 213 Foreign Fishing Vessel, . . 213 Foreign Goods, .... 214 Foreign Judgment, . . . 214 Foreign Law, . . . .214 Foreign Probate, . . . .214 Forfeiture, 214 Forgery, 214 Former, Recovery, . . .214 Former Decision, .... 214 Forms, 214 Pour Day Rule, . .214 Fraud (Statute of), . . .216 Fraudulent Conveyance, . . 215 " Removal, . . .216 " Representation, . .216 " Transfer, . . .216 Fredoricton (City of), . . .216 Freight, . • . . . .217 Frivolous Demurrer, . . .217 G. General Assembly, .... 217 General Issue, .... 217 General Rules, . . . . 217 Germantown Luke, .... 218 Giving Time, 218 Glebe, 218 Good Friday, 218 Goods Sold, 218 Grand Jury 218 Grant, . .... 218 Grievous Bodily Harm, . . . 218 Guarantee, 218 1. Consideration, . . . 218 2. Operation of Statute of Frauds, 218 3. Construction, . . . 219 4. Parties Interest, . . . 219 Guardian in Socage, . . . 219 Gunpowder, 220 H. Habeas Corpus, .... 220 Half Blood, 220 Harbour Master, .... 220 Heir— Heir at Law, . . .220 Highways, 220 Hiring, 223 Homicide, 223 Horse — Horse Race, . . . 223 House of Assembly, . . . 224 Husband and Wife, . . .224 1. Actions by and against, . 224 2. Necessaries, . . . 224 3. Separate Property of Wife, . 224 4. Miscellaneous, . . . 225 (. Identity, 225 Illegitimate Child, . . .225 Imperial Statutes, .... 225 Implied Contract 226 Incumbrance, .... 225 Indemnity 226 Indictment, 226 Indorsement, .... 226 Induction 226 Infant, . . .226 Inferior Courts, . . . .226 Information, .... 226 Injunction, ..... 226 Innkeeper 226 Innuendo, 226 Inquest of Offico, . . . .226 Inquiry (Writ of), . .226 Inrollment 226 Insolvent Act of 1869, . . .227 " Confined Debtor, . . 228 Inspootor, 230 XIT TABLE OP CONTENTS. I Instalment, Insurance, " Broker, Interest, Interlocutory Judgment, Interrogatories, Intestate, Intoxicating Liquors, Intrusion, Irregularity, Issue, .... Inventory, J. Jeofails, .... Jettison, Joint Debtors, Joint Liability, Joint Indictment, . Joint Tenancy, Joint Trespass, Joint Stock Company, Judge, .... 1. Revieving decision of, 2. Power at Chambers, 3. Discretionary Power at Trial, 4. Certificate of Judge, Judge (County Court), . Judge's Notes, Judicial Notice, Judgment, 1. Generally, . 2. Offer to suffer Judgment, 3. Foreign, Judgment as in Case of Non-suit, 1. Matters relating to Practice, 2. Answers — Sufficiency — Insuf- ficiency, 3. Discharging Rule — Peremp- tory Undertaking — An- swers — Enlarging Rule, Judgment by Default, Judgment Interlocutory, . Judgment Nunc Pro Tunc, Judgment Non Obstante, Judgment Non Pros, Judgment Roll, .... Judgment (Rule for). Jurat. See Affidavit. Jurisdiction, .... Jurors — Jury, • . . . Justice of the Peace, 1. Courts, .... 2. Jurisdiction in Civil Cases, . 3. Duties — Liabilities, 4. Summary Convictions, A. Jurisdiction, Ji. Tu formation — Proof, . C Proceedings for Penalties, 230 230 237 238 238 238 238 233 238 239 239 239 239 239 239 239 239 239 239 239 242 242 242 242 242 242 242 243 243 243 244 245 245 245 247 249 251 252 252 252 252 252 252 252 252 253 253 263 255 255 255 256 257 5. Convictions, . 258 6. Generally, . 258 7. Costs, . 259 8. Notice of Action, . 259 Jus Tertii . 259 Justification, . 260 L. Lake, . 260 Land Damages, . 260 Landlord and Tenant. 1. Leases — Agreements — Con- struction — Operation , . 260 2. Tenancy — Notice to quit. . 261 3. Rent, . 262 4. Rights of Landlord, . . 263 5. Defence by Tenant, . 263 6. Leases, . 264 7. Miscellaneous, . 265 Larceny, .... . 266 Lease. See Landlord and Tenant , Leave and License, . 266 Legacy — Legatee, . 266 Legislative Acts, . 266 Letters of Administration, . 266 Letters Patent, . 266 Levy, . 266 Libel, . 266 License (Operation and Effect), . 266 1. To Cut Timber, . . 266 2. To Dig Minerals, . 267 3. To So 1 Lund, . 267 4. To Erect Mill Dam, . . 268 5. Fishery, . 268 Lieutenant Governor, . 268 Lien, . 268 1. Principles — Operation. 2. Particular Persons. Lights, . 269 Limitation of Actions (Statute of] . 1. General Operation, 2. Acknowledgments — Part ] . 269 ^ay- ment, . . 269 3. Personal Actions and Pro- ceedings, . 270 4. Real Actions — Adverse Pos- session, . 270 A. Right of Entry, . . 273 R Tenancy at Will, . . 274 C. Tenants in Common, . 274 Limit Bond . 275 Livery of Seizin, . 276 Locus Standi . 275 Lost Record . 275 Lunatic, .... . 276 M. Magistrate. See Justice of the Peace. ■\-, TABLE OF CONTENTS. XV 260 261 262 263 263 264 265 266 266 266 266 266 266 266 266 266 266 267 267 268 268 268 268 269 269 269 270 270 273 274 274 276 275 275 275 275 Malice, . . • • 275 Non Pros, . 299 Malicious arrest and prosecution, 275 Non-Residents, . 299 Mandamus— When Granted, . 277 Non-Suit, . 299 To Inferior Courts. Notice, .... . 300 " Corporation. Notice of Abandonment, . . 300 *• Enforce Contract. Notice of Action, . . 300 Alternative Mandamus. Notice of Appeal, . . 300 When Refused, 278 Notice of Defence, . . 300 To Inferior Courts. Notice of Dishonour, . 300 " Corporation Notice — Highways — Alteration, . 300 '' General Sessions. Notice of Motion, . . 300 " Justice ol" the Peace. Notice of iSet-off, . 301 Manslaughter. See Criminal Law. Notice to (Juit, . 301 Manure, 280 Notice to I'roduce, . . 301 Market, 280 Notice by kegistry, . 301 Marriage — Married Woman, . 280 Notice of Render. . . 301 Master and Servant, 280 Notice of Trial, . 301 Master in Chancery, • . 281 Notice — Warning to Obligors, . 301 Mayor, . . . 281 Nova Scotia Grant — Judgment, . 301 Medical Act, .... 281 Nuisance, . 301 Memorial, 281 Nullity, .... . 301 Merger, 281 Nul Tiel Record, . . 301 Mesne Profits. See Ejectment. Merits, 281 0. Mileage, Militia. See Alien. Mill Dam, Mines and Minerals, 281 281 281 Oath, . Obstructions, . Occupation, . Office, . Onus Probandi, Opinion of Experts, . 301 . 301 . 301 Ministerial Officer, Misdescription — Misnomer, Mistake, ..... 281 281 281 . 301 . 301 . 302 Mixture of Goods, 282 Orders, . . 302 Moncton, ..... 282 Overflowing Land, . . 302 Money Lent, Months, ....'. 282 282 Overseers of Poor, . Ownership of Property, . 302 . 302 Mortgage, 282 P. Mother. See Heir at Law. Motion Paper, .... 285 Parchment, . . 302 Mutuality, 285 Parish Officer, . 302 Parish Schools, . . .302 N. Parol Evidence. See Ev idonce. Name, 285 Particulars, . 302 Navigable River 286 Parties, . . 303 Navigation, 286 Partition, . 303 Negligence, 285 Partnership, . . 303 Now Assignment, .... 28(5 Patent, , . 304 New Matter, 286 Pawnee, . 304 Newspiipor, 286 Payment, . 304 New Trial, 286 Payment of Miiney into Court, . 304 1. Motion — Affidavits — Prnctieo 287 Payment (Donmiid of), . 304 2. For what cause granted — Payment (Presumption o f), . . 304 Sufficiency, . 287 Penalty, . 304 3. Refusal—Insufficiency of Rea- Pendency of other Suit, . 304 son, . . . . 292 Peremptory Undertaking . 304 4. Miscellaneous, 297 Perjury, Petition under Insolvent . 306 Next of Kin. See Heir at Law. Act of 1869, 305 Nisi Prius (Order of), . 298 Pilot — Pilotage, . 306 Nisi Prius Record, .... 299 Plan, . . 305 Nolle Prosequi, .... 299 Plea. See Pleading — Practice, I ZTl TABLE OF CONTENTS. Pleading. Prohibition, .... 357 1. Declaration — Averuicnts — Al- Promissory Notes. Sec Bills and legations, 30.5 Notes. • 2. Pleas — Subsequent Pleadin g Property, . . . , . 357 — Abatement, . 318 Protest, 367 3. Notice of Defence, . 325 Public Agents. See Principal and 4. Miacellaneous, . 325 Agent. Pleno Aduiinistravit. See Exccu Public Officers, .... 367 tors, etc. Puis Darrein Continuance, 367 Police. See Action at Law (Notice' )• Purchase — Purchaser, 357 Policy of Guarantee, . 326 Policy of Insurance. See Insurance Q- Pondkeeper, .... Poor (Overseers of). See Portland (Town of) Posse^'siou, .... '. 32G 326 Quantum Meruit, .... Quarter blaster. See Alien. 358 326 Quiet Enjoyment. See Covenant. Postea, ..... . 327 Quo Warranto, .... 358 Postmaster — Post Office, . . 327 R. Poundage. See Sheriff. Power of Attorney, 328 Railway — Railway Commissioners, . 368 Powers of Legislature, . 328 Railway Company, 358 Practice. Rate. Sec As.ses8ment. 1. Declaration, 328 Rate-payer. See Bastardy — Vote. 2. Venue, 328 Ratification, 358 3. Entry Docket, . 329 Readiness and Willingness, 358 4. Process — Scire Facias — Ser Real Estate 358 vice, 329 Reasonable and Probable Cause, 358 5. Motions and Applications, 331 Reasonable Time, .... 368 6. Staying and Setting Aside Rebutting Evidence. See Evidence. Proceedings — When grant Receipt, ..... 359 ed or refused, . 334 Recital. See Registr' —Crown Grant . 7. Irregularity, 339 Record, 359 8. Rules, 341 Recognizance, .... 359 9. Notices, 342 Recognizance Estreat, 359 10. Inquiry (Writ of). 343 Rector, ..... 359 11. Demurrer, . 343 Referees — Reference, 359 12. Feigned Issue, 344 Refusal to Administer Oath, . 359 13. Arrest of Judgment, . 344 Registry, 359 14. Incidental Proceedings, 344 Registered Owner, .... 360 Practice at Nisi Prius. See Trial. Registrar. See Judicial Notice. Practice in Equity. Relation, 360 1. Practice in General, 345 Release, 360 2. Injunction, 351 Remanet, ..... 360 Precipe, .... 352 Remainder — Remainderman, . 360 Presentment, Sec Hills imd Notes. Remedy, 361 Presiding Officer, . 352 Render, 361 Presumptions, 352 Renewal, 361 Principal and Agent 353 Rent. See Landlord and Tenant. Principal and Surety, 355 Repairs of Vessel, ... 361 Private Ri)ad. See Highway. lleploader. See Error (V , ,'" i. Privilege i'rom Arrest. See Arrest. Replevin, . . ' , . 361 " of Parliament. See Arrest Replevin Bond, 365 Privileged Communication, 366 Representation. See Wnrf Privity of Estate. See Covenant. Reservation. See Deed — Higtjway, Privy Council, 356 Rescinding Contract. See Action at Probate (Jourt, 357 Law. Proceedings setting aside. 357 Residuary Legatee. See Will. Procedendo, .... 357 Restitution rWrit of), . Retainer, hoe Attorney. 365 J'rocess, .... 357 TABLE OF CONTENTS. XTll Return (Writs — Executions), Revenue, Revenue Act — Revenue Officer, Revenue Laws, Reversionary Interest, Revesting Property, Review, Revocation, Right of Entry, Right of Way, Right to Begin, River, Road. See Highway. Royal Instructions, Rule for Body. See Practice. Rules of Court. See Appendix. Rules — Privy Council. See Privy Council. 8. See Saint John Bridge Company. Joint Stock Co. Saint John (City of). Salary. See Credit. Sale, ...... Satisfaction, . . . . Scire Facias, . . . . Scientific Witness. See Witness. Schools. See Parish Schools — Com- mon School Act. School Assessment. See Asscssuk it. School Inspector. See Comniou School Act. School Teacher, School Trustees, Seal, Seaman's Wages, Search, Search Warrant. See Justice of Peace. Sea Walls, Seaworthiness. Sec Insurance. Secondary Evidence. See Evidence. Second Action, Second Application, Security, ... " for Costa. See Costs Seduction, ... Service of Papers. See Praotioe. Separate Property. See Husband and Wife. Set-off, Several Counts, Several Issues, Shares, Sheriff, Sheriff's Deed, Sheriff's Sale, 365 365 365 365 365 366 366 366 3e6 366 366 366 366 366 367 367 367 367 367 367 368 368 368 368 368 368 368 368 370 370 370 370 373 374 Shipping Law, .... 376 Shore, 376 Similiter, 376 Slander. See Defamation. Smuggling. See Criminal Law — Re- venue Law. South Bay Boom Co. See Boomage. Special Jury. See Jury. Special Paper, .... 376 Specific Articles, .... 376 Specific Performance, . . . 376 Stakeholder, . . . .377 Stamps, ..... 377 Statutes, ;:}77 Statute of Frauds 377 Statute Labor, .... 377 Statutory Form, ... 377 Staying Proceedings. See Practice. Stet Processus, .... 377 Stevedore, 377 Stockholder, 377 Stolon Goods. See Trover. Subpoena, 377 Substituted Agreement, . . . 377 Summary Action 377 Summons, 378 Supersedeas, 3'78 Supreme Court in Equity, . . 378 Supreme Court of Judicature, . . 379 Surety, 380 Surgeon, 380 Surplusage, 380 Surprise, 380 Surrender, 380 Surrogate Court, .... 380 Survey, 380 Surveyor General, .... 380 Suspension (Claim), , . . 380 T. Tavern Keeper, . 381 Taxation of Costs. See Costs. Tenants in Common, . 381 Tenants by Courtesy, . 381 Tenant for Life, . 381 Tenant at Will, . 382 Tenant for Years, . . 382 Tenancy, . 382 Tender, . 382 Term's Notice, . 383 Termination of Procoedin gs, . . 383 Testatum. See Executioi 3. Teste. See Execution. Tide. See Crown Grant. Timber — Timber License . 383 Time (Computation of), . 383 Title of Cause, . 383 Title to Land, . 383 ZVIII TABLE OP CONTENTS. Top Wharfage. See Wharf. Tort, 383 Transfer, 383 Treasurer. See Deputy Treasurer. Treasury Bond, . . .383 Trespafls, 383 1. Real Property — Right to main- tain Action — Su£Bcicncy of Title— Party. 2. Defence— Pleading-~Evidewce. 3. Personal Property. 4. Damages. 5. Assault and False Imprison- ment. 6. Miscellaneous. Trial, . . . . .395 Trial by Record. Sec Pleading. Trover, 395 Trusts— Trustees, . . . .399 Trust Deed. See Deed. u. 400 Ultra Vires, .... Underwriter. See Insurance. United States Currency, . . 400 Usage of Trade 400 Uncertificated Attorney. See Attorney. Use and Occupation, . . . 400 Uses (Statute of), . . .400 Usury, 400 V. Variance, Venditioni Exponas, Vendor and Purchaser, Venire, Venue. See Practice. Verdict, Vexatious Proceeding, View (Jury of), Voluntary Conveyance. Sec Deed. 400 401 401 402 402 402 402 Vote. See Election. Voyage. See Insurance - Law. w. ■Shipping Wager, . Wages, . Waiver, . Warehouseman, Warrant, Warrant of Attorney, Warranty, Waste, . Water Company, Weekly Allowance. See Tnsolveut Confined Debtor. Water Course, W harf — W harfage. Wharfinger, . Widow, Wife, . Wildnerness Land, . Wilful Injuries, Will, . Winding-Up Act, . Windows. See Lights. Witness, Words (Meaning, Construction), Work and Labour. Sec Assumpsit. Wounding. See Criminal Law. Writ (of Error), .... Writ De Proprietate Probanda, " of Enquiry. See Practice. " of Restitution, 402 402 402 403 403 403 405 406 406 406 406 407 41 17 407 407 407 407 410 411 412 413 413 413 Addenda : — Containing Cases inadvertently omitted in the Digest. Appendix : — Containing Rules of Court. I ANALYTICAL DiaEST OF DECISIONS OF THE SUPREME COURT OF NEW BRUNSWICK, FROM 1826 TO HILARY TERM 1873, INCLXJSIVB. ABANDONMENT. Of joint trespass, on trial. Sec Trespass, 25. Of right to vote. See Election, 2. ABATEMENT. See Pleading, II. Bills and Notes, VI. 9. Proceedings against Absconding Debtor not abating by ' " " " ' death of debtor. See Ab- sconding Debtor, 12. Items includec' in previous suit. See Ac- tion at Law, VIII. Husband and Wife. Death. See Husband and Wife, 2. ABSCONDING DEBTOR. 1— Supersedeas. The Court has no power under 26 Qeo. 3, c. 13, to grant a Supersedeas of a War- rant of Attachment, issued against the goods of a concealed debtor, unless it ap- pears that all the creditors consent there- to. Ex parte Gove. JBer. 187. 2— Befasal to grant Prohibition. The Court refused a rule either for a pro- hibition or certiorari, in regard to pro- ceedings under the Absconding Debtors Act, 2G Geo. 3, c. 13, taken before a Judge of an Inferior Court of Common Picas, it not appearing, upon the affida- vits, that the Judge had acted illegally in any part of the proceedings. Appli- cation had been made to the said Inferior Court to stay the proceodingd, but it did not appear that such application was in the form prescribed by the seventh sec- tion of the Act, and the Court, after hear- ing the parties, made no order in the case. Ex parte Waitc, 1 Kerr, 176. 3— Bight of Trustees to maintain Tro- ver; The trustees of an absconding debtor, duly appointed under the Act 26 Geo. 3, c. 13, may maintain trover to recover 1 the value of certain gOL ^' of tho debtor, wrongfully converted by tho defendant before any proceedings taken under tho Act ; such right of action being transfer- red by the operation of the Act from tho debtor to the trustees. Ritchie v. Boyd, 1 Kerr 264. 4— Debtor Administrator — Bight of Trustees in Property. Under the Act of Assembly 26 Geo. 3, 0. 13, the Trustees of an absconding debtor do not become entitled to tho pro- perty and credits held by such debtor as administrator of a deceased person. Wil- son V. McBrine, 2 Kerr 636. 6— Bight of Trustees to sell Property —Possession. The trustees of the estate of an abscond- ing debtor appointed under the Act 26 Geo. 3, 0. 13, have a right to sell and convey the real estate of the debtor, though they have never taken possession. Doe V. McGuire, 1 All. 612. Fraudulent Conveyance. A conveyance from an absconding debtor which is found to be fraudulent and void, cannot defeat the title of the trustees; for being void as against creditors, it is also void as against those who represent them. Ihid. 6— Property seized— Liability for rent. Property seized upon a warrant issued un- der tho Absconding Debtors Act (1 Rev. Stat. 0. 126) is not liable to the landlord for a year's rent, though notice of his claim is given to the Sneriff before the delivery of the property to the trustees. Stanton v. Johnston, 4 All. 64. -Aotion against Debtor— Suspension -BaU. Proceedings under tho Absconding Debt- ors Act do not suspend an aotion pendmg against the debtor ; nor are the bail dis- charged by the plaintiff filing with the trustees his claim against the debtor, and 2 ABSCONDING DEBTOR. ACCEPTANCE. having the amount adjusted. Christie v. Latcrcncc, 4 AIL 115. 8— Foreign Besidence. Where a debtor was a resident of the State of Maine but did business in this Prov- ince and went away for the purpose of defrauding his creditors. Held, Tlint he might be proceeded against under the Absconding Debtors Act. Reglna v. Stcadman, 1 Han. 369. 9 — A Warrant cannot issue against a person as an absent debtor under 1 Rev. Stat. cap. 125, unless he has been a resident in the Province. Ex parte Kettle, ITU. T. 1861. 10— Investing of Property — Notice — Publication. Proceedings were taken against S., a debtor, under the Absconding Debtors Act; a Warrant issued 27th November, and notice as required bj the Act, was pub- lished in the Royal Gazette, December 2. The warrant was delivered to the SheriiF of York on the 10th February following. On the 5th February, a creditor of S. having obtained judgment against him in the Supreme Court, issued an execution and recorded a memorial of the judgment in the County of York. Held, — Weldon, J., dltsentlentc, That the publication of the notice divested S. of the property, and vested it in the trustees, without the issuing of any warrant to the Sheriff, and so defeated tho execution. Per Weldon, J., That the notice in the Gazette could not be imported into the case to prevent the plaintiff from reaping the fruits of his judgment. Kerr v. Scovil, 2 Hun. 16. 11 — The real estate of an absconding debtor is divested by the publication in the Ga- zette of the warrant of attachment, and vests in tho trustees when appointed, and is not affected by a subsequent convey- ance by the debtor. Therefore where pro- ceedings were taken against an abscond- ing debtor in February 1860, and notice of tho warrant was published in the Gazette in April 1860— Held, That tho estate of the debtor was thereby divested, and that a subsequent deed from him was inopera- tive, though tho trustees were not ap- Sointed un*.il several months after such ced. Rohlchcauv. Black, Mch. T.1S71. 12— Death of Debtor— EfiEbot of Notice. Proceedings under tho Absconding Debt- ors Act, 1 Rev. Stat. c. 126, do not abate by tho death of the debtor within three months after tho publication of the notice of the warrant in the Gazette, nor by the debtor being declared bankrupt in Eng- land within that period. Ex iMirtc Arch- ibald, 2 Han. 30. 13— Foreign Corporation. A foreign corporation having an agency and carrying on business in this Province may be proceeded against as an absent debtor under the 1 Rev. Stat cap. 125. Ex parte, The Columhlan Inmrunee Co., Hll. T. 1871. 14— Jurat— Signature— Want of. The want of a signature to tho jurat of the affidavit of the applying creditor upon which a warrant of attachment is issued under the Act 26 Geo. 3, c. 13, is a fatal defect in the proceedings, and is not waived by an application for a supersedeas by the debtor. Ex parte Nawn, Eaxtrr T. 1833. 15— Insolvent Act of 1860. Effect. The Absconding Debtors Act 1 llcv. Stat, c. 120, is not repealed by " the Insolvent Act of 1809," their provisions not being necessarily incon.sistent Tho former Act applies to persons ami cases not provided for by tho latter Act. Ex pari;: liejjnohh), Trln. T. 1872. 16— Property acquired by debtor sub- sequently to appointment of trus- tees—Vesting of. Where proceedings have been taken against a person as an absconding debtor, and trustees have boen appointed under 1 Rev. Stat. c. 125, property acquired by the debtor after the appointmeut oi' the trustees, docs not vcsst in them. — Hannlnytim v. Jfarshman, H. T. 1873. Supervision of Proceedings of Trustees. Sec Supreme Court in Equity, 9. ABUTTAL. Replevin — generality of dceuription. See PleadiuK I. 31. ACCEPTANCE. Of Bill by agent — authority. See Principal and Agent, 10. Per procuration — authority — agency. Sec Bills and Notes, II. Protest — evidence of acceptance. SeeBillf -ind Notes, III. 3. Extent of — sale of logs. Pee Contract, 12. ACCORD. ACKNOWLEDGMENT. 3 Acceptors of Timber Orders — ^liability — usage. See Contract, 6. 1— Proof. Action against drawers of foreign bill of exchange payable at so many days after sight, and averred to have been accepted, but afterwards protested for non-payment. Quaere, Whether proof of acceptance is necessary beyond the protest for non-pay- ment ? If not necessary in ordinary cases, whether it would bo, where the accept- ance purported to make the bill payable to third persons, and the protest for non- payment is made upon the presentment to such third persons only 1 See Pollock V. Cunard, 2 Kerr, 291. 2^-Statute of Frauds— Accoptance. A mere delivery of goods by the vcudcr without an actual acceptance by tho va- dcc of some part thereof, is not suflBoIent, within tho statute of frauds. Tho receipt of tho goods by a common carrier from the vendor, without any specific direction or authority from tho vendee, will not amount to an acceptance by the vendee, within tho statute. Daley v. Marks, Bcr. 346. ACCOMMODATION BILL. Indorscr receiving property consideration for promise to destroy bill. Sec Bills and Notes, V. 3. ACCOMPLICE. Confession of third person to implicate. See Criminal Law, III. 1. ACCORD AND SATISFACTION. Sec Contract, 13. Botontion of Draft— Presumption. Plaintiifs, merchants in Boston, had sold goods to defendant in St. John, and he had made payments on account; there was some dispute whether the price of the goods was to bo paid in gold or American currency. On the 13th May 1865, de- fendant sent the plaintiffs a gold draft for 8719, stating that ho considered that it would balance tho account between them. On tho 19th May tho plaintiffs acknow- ledged tho receipt of tho draft, but de- nied that it balanced the account, and stated that they would hold it subject to tho defendant's order ; and on tho 23rd May ho requested them to return tho draft to him. They neither answered the letter nor returned tho draft, but after- wards sold it in tho money market, and claimed a balance. Hold, That tho draft being of an uncertain value, dependent on the price of gold in tho United States, might be accepted ns an award and satis- fuction of tho plnintifTs demand, and that by retaining and disposing of it after tho defendant had requested thoni to return it, it might bo presumed that they had accepted it in full. Nash v. Devvr, Uil T. 1866. ACCOUNT. Debits and Credits — use of one side. See Evidence, XI. 13. General account included with bill of costs. See Attorney, VIII. 32. Reference to Barrister. Non-uso of evi- dence. See Supremo Court in Equity, 4. ACCOUNT STATED. Sec Assumpsit, III. a. ACCRETION. Receding of low water mark. ExtouBion of wharf. Covenant binding nwtignoo. See Covenant, 7. AC ETIAM. No cause of action in ac etiam clause. Sec Practice, VI. 1. ACKNOWLEDGMENT. See Evidence (Admissions). AcquicRcence. Of deed. Want of memorandum of due acknowledgment. See Deed. Official character of person taking. See Deed, 12. What a sufficient acknowledgment of deed. See Deed, 13, 28. 1— Promise to pay debt barred by bankruptcy. In an action to recover a debt from which the defendant had been diflchargod by tho Biuikrupt Act, tho plaintiff relied upon tho following promise to a creditor of tho defendant since his bankruptcy : " I oc- knowledge that I owe B. (tho plaintiff) and you, as soon as I am ablo I will pay you." Held : 1. That this wa« not suon a distinct and uuc((uivocal promipo to ^ay tho plaintiff as was noooBsarv to entitle him to recover. 2. That the plaintiff 4 ACKNOWLEDGMENT. ACTION AT LAW. should have declared speoially on the con- ditional promise, and proved the defend- ant's abilitj to pay. Blair v. Albee, 3 All. 9. 2— Acknowledgment, no promise to pay. A mere acknowledgment of a debt by an administrator is not sufficient to take the case out of the Statute of Limitations ; there must be an express promise to pay, and if there is more than one administra- tor, semblc that the promise should be by all of them. Gihhs v. Sewall, Trin. T. 1833. When must be made to bar Statute of Lim- itations. See Limitation of Actions II. 3— Admlflsion of Title— By verbal de- olarations. The verbal declaration of the grantee of land that he has sold it to a person under whom the defendant claims, is not suffi- cient to shew title out of the grantee. Doe V. Todd, 2 All. 261. 4— By written a^eement to buy. L. naving been lu possession of land up- wards of twenty years, made a written agreement to buy it from the lessor of the plaintiff, but, before the time of payment, went away leaving the dcfcndnut in pos- session, and stating that he could not pay for the land. Held, That this agreement was an admission of title in the lessor of the plaintiff, and that he might recover in ejectment without any other proof of title. Doe v. Little, 2 All. 553. 5— Acknowledgmont of Title— Petition in Probate Court — Statement— Statute of Limitations. A Btatcmeut in a petition by defendant to the Probate Court, for letters of admin- istration, that certain land in his pos- session belonged to the intestate, on which petition letters of administration were granted to the defendant, is a sufficient acknowledgment of title to the licir of the intestate to prevent the operation of the Statute of Limitations. Dop d. Spfnce V. Welling, Trin. T. 18C6. 6 -Ofibr to Lease— Bidding at Sale. A verbal offer by a person in adverse possession of land to lease it from the owner, or bidding for the laud at an auc- tion of it by tbo owner, is not an ackuow- ledgnicnt of title, witliin the Statute of Limitations. Doe v. Ilusson, 3 All. 451. 7— By letter. In ejectment, the lessor of the plaintiff relied on the following letter as an ad- mission of title by the defendant : " If you intend to sell the place, I want you to give me the first offer as soon as pos- sible ; write me an answer the first oppor- tunity; don't sell it to nobody till you let me know, and as to the money it shall bo ready as soon as you give a good deed." Held, Not a sufficient acknowledgment of title in the lessor to bo submitted to the consideration of the jury. Doc v. Brown, 3 Kerr 321. Declaration on Examination. See Limita- tions of Actions II. 3. ACTION AT LAW. 1. Commencement of Action. II. Condition precedent to brinu- iNO Action. III. Form of Action. IV. Right of Immediate Action. V. RianT to Determine Contract. VI. Suspension of Action. VII. Before Expiration of Credit. VIII. Former Recovery. IX. By and against whom Main- tainable. X. For what MAINTAlNABIiB. XI. Notice of Action. (Parties entitled to — Service of.) XII. Joinder op Actions. T. 1— Commencemont of. The issuing of writ, and not the filing of the declaration, is the couiuicncenient of an action. iStiks v. Brcivster, 4 ^1//. 414. 2 — The day of the issuing a suinniary writ, and not the day of teste, is considered the commencement of the action. See v. McA'ivn, 2 Kerr 524. 21 — Parties not in statu quo. Sec Assuum- sit III. 34. 22 — Obligees of bond payiiblo to A. or U., or either, cannot bo sued in name of one unless the other is dead. Sen Jhnrn v. Drummonil, 4 AIL 2(17. 23 — Insurance — loss payable tc. Assij^n- njont of policy. See lusuraucc. 24— Married woman— Husband insane. The amount due from a boarder under such circumstances, vests in the woman as her separate property, and will not pass to the husband's representatives on his death. Abcll v. Light, 1 JIan. 97. 26— "Widow- Dower. A widow cannot maintain action at law for dower in land in which her husband had only an eqi.ity of redemption during coverture. See Doe v. Estabrooks, 4 All. 455. 26- Surveyor of Lumber. Assumpsit lies by a surveyor of lumber to recover his fees against the first pur- chaser after the survey, under 1 Rev. Stat, c. 9G, sec. 10. Fcrguion v. Muirhead, mi. T. 18G6. 27— Overseers of Poor. Paupers brought into Parish. The overseers of the poor not having any corporate rights, cannot maintain an ac- tion against a person who brings paupers into the parish, who become chargeable thereon, such act being no injury to the overseers individually. Gillexpie v. Phil- lips, Mich. T. 1861. Infant — Ratification. Sec Infant. Rector — Party to maintain trespass. See Trespass I. 8. Corporation when no Rector. See Trespnss 1.9. Purchaser may recover deposit on failure of title. See Assumpsit III, 24. Iiouiaindernian — Right to maintain eject- ment without demand of possession. See Will 8. Constable. See Constable. Seaman. See Seaman's Wages. Registrar — Medical Act. So(! Action on the Case 1. 3, Infant — Coming of age — Promise to pay note. See Ijills and Notes II, 5. Wrong Doer cutting timber. See Trover II. Trustees Absconding Debtor— Trover. See Absconding Debtor 3. 3Inster of Ship- Carrier 1. •Loss by jettison. See Pawnee — Replevin for wrongful taking of goods pledgotl. See Ilaileo Collector (if (JustomH — Loss by accidental fire. Hoc Action on the Case 1. ACTION AT LAW. ACTION AT LAW. 9 id insane, der under ut is not a ecially after Regina v. ION. r. Ieft«blank — riff's sale 1 ; do. 4. vidence of V. 2, 3. g Notices. I. Authority to Take — Before Whom Sworn. 1— British ConsuL An affidavit made in a foreign country, and duly authenticated by the certificate of a British Consul, is sufficient to author- ize a Judge to make an order for bail. Drake v. Wentworth, Ilil. T. 1834. See Acts 19 Vic. c. 41, 8. 7, and 27 Vic. c. 40, 8.7. 2— Attorney of petitioning Creditor. Affidavit, upon which a warrant under Absconding Debtors Act is issued, may be sworn before the Attorney of petition- ing creditor. Regina v. Steadman, 1 Han. 369. 3— Judge— Nova Scotia. An affidavit sworn before a Judge of the Supreme Court of Nova Scotia, whose sig- nature is verified by an affidavit made in this Province, may be read in this Court. Kirk v. Anslcjf, 1 Kerr 301. 4— Verification of Signature. Affidavit of due execution of Power of Attorney to demand costs made in Nova Scotia before a Judge there. Verification of his signature necessary by affidavit made here. See Fraser v. Harding, 2 Kerr 290. 6— Commissioner of Supreme Court- Proceedings in other Courts. A Commissioner authorized to take affi- davits to be read in the Supreme Court, has no authority to take an affidavit of the service of an order for review of the proceedings on a triiil before a Justice of the Peace. See Regina v. Mcintosh, 1 Han. 372. 6— Commissioner, Court of Bankrupt- cy—England. An affidavit sworn in England before a Commissioner of the Court of Bankruptcy, describing himself to be a Judge of the Court, and purporting by the jurat to be a Court of Justice, and to be under the seal of such Court, may be used in this Province under the Act 19 Vic. o.41, s. 7. Crane v. Cazcnove, 4 All. 578. n. Intitling. 1— One of two Defendants. In an application by one of two defend- ants for relief under Insolvent Act, 1 Wm. 4, c. 43, the affidavit was intitled in the name only of one of the defend- 3 ants, the applicant Hold, The intitling was sufficient. Wilmot v. Comwcll, Ber. 31. 2— IVo Cause in Court. Where an application was made under the Act of Assembly 6 Wm. 4, c. 11, ss. 11, 12, by a Sheriff against an Attorney, to compel him to pay the Sheriff's fees in certain suits in which the writs had not been served by the Sheriff, and the affi- davits were entitled in the name of the Sheriff against the Attorney by name. Held, 1'hut the affidavits wore improperly entitled, there being no such cause in Court. JJnirj/ v. Howe, 3 Kerr 588. 3 — Affidavits used in moving for a rule nisi for a mandamus are irregular if entitled in a cause, but the rule will be discharged without costs. Rigina v. JuHtiees of York, 1 All. 90. 4— Variance in description of Plain- tifb. Where the title of a cause described the plaintiffs as " trustees for all the creditors of the estate and effects " of an abscond- ing debtor, and the affidavits served on the plaintiff with u view to the discharge of bail, in their titles described the plain- tiffs as "trustees for all the oroditors, etc.," omitting the words " of the estate and effects," held sufficient. Allison and others, trustees v. Robinson, 2 //<«». 161. 6— Several Causes— Same Rule moved for. Where the same rule is to be moved fur in several causes, the motion may be made on a single affidavit, entitled in all the causes. Brown v. Trenholm, 2 All. 615. 6— Abbreviations. The abbreviations " Pltff ' and " Deft" in the entitling of an affidavit are bad, and a rule obtained on such an affidavit will be discharged. Raj/mond v. Cald- veU, Hil. T. 1864. III. In Particular Cases. 1— By Sureties on Limit Bond. Both sureties on limit bond should join in application fur relief on equitable grounds, and collusion with principal de- nied by both. See Goodwin v. Murray, 3 All. 695. 2 — Should state that application is made at the expense of bail, and without collu- sion. See Bradford v. Fenton, 3 AU, 407. •18 AFFIDAVIT. AFFIDAVIT. 8— To hold to boil— Interest Money. An affidavit of debt, stating the defend- ant to be indebted in £100 for principal money paid and advanced by the plaintiff for the defendant, " and in jC50 for inter- est upon the said principal sum," is bad as to the interest : but the causes of action being separate, the arrest will stand for the amount properly sworn to. Simonds V. Simmds, 2 All. 468. 4— To aet aside Judgment. An affidavit to set aside a regular judg- ment and let a party in to defend, must give a clear statement of merits. Rippey V. Austin, 4 AU. 11. Where there are several defendants — qutere, Whether all should join in the affidavit of merit? Where two out of three de- fendants made affidavits, and only one swore to merits — Held sufficient. Jbid. 6— To set aside arrest— Certainty as tr name. On an application to discharge a defend- ant, arrested by the name of John Henry Oviatt, his affidavit stated that his " name is John Hilder Oviatt." Held insuffi- cient. An affidavit in such a case should be as certain as a plea in abatement for misnomer. Thompson v. Oviatt, 2 All. 118. 6— Security for Costs. A demand of particulars is not such a step in the cause as to require defend- ant applying for security for costs tu state in his affidavit that when he de- manded particulars he was not aware of the plaintiff's residence abroad. Johns- ton V. Glazier, C. Ms. 141. Attachment for non-payment of costs — affi- davit should state the place where demand made. See Attachment 19. Should also state the time when made. See Attachment 20. IV. Particular Perbonis. 1— Jurors. Affidavits of Jurymen stating t?iat they had received evidence after retiring from the bar, cannot be received to impeach their verdict. Att'y General v. Boyer, C. Ms. 78. 2 — On a motion for new trial, an affidavit stating that one of the jurymen had in- formed the deponent that the verdict was decided by lot, will not be received. See Hodgson v. Carr, 3 Kerr 499. 3 — Affidavits of Jurors refused to be receiv- ed stating that they found the defendant was not in a proper state of mind to un- derstand the deed, and intended to assign that as a reason for their verdict. See Bahhet v. Cowperthwaite, 3 All. 373. Sheriff on Deed — Time of making. Sco Sheriff's Deed 3. See Deed I. 37. 4— Party— Attendance of Witnesses. Affidavit should state the belief of de- ponent that witnesses attended the num- ber of days. See Taylor v. Travis, 3 AU. 505. Administrator on Deed— Evidence of what. See Deed I. 24. Executor — ^Deed. See Deed V. 7. 6— Arbitrator—affidavit of Not admissible to shew that if they had known they had no power over the costs, they would have awarded a different amount to plaintiff. See Arbitrations and Awards V. 3. V. Jurat. 1— Omission of Place. When the jurat omitted to state the place where an affidavit taken before a Com- missioner was sworn, the Court would not allow it to be read. Rankin v. Downcs, 1 Kerr 88. 2— Siepature. Omission of signature in jurat of affida- vit of applying creditor under Abscond- ing Debtors Act, a fatal defect. See Absconding Debtor 14. 8— Description of Commissioner. If an affidavit is properly entitled in the Court, it is sufficient in the jurat to de- scribe the person before whom it is sworn, " A Commissioner etc., Supreme Court." Ex parte Morse, 3 Kerr 366. 4— Illiterate Person. The jurat of an affidavit made by an illi- terate person, must state that it was read by the Commissioner to the deponent be- fore swearing, in the terms of the rule of Hil. T. 1848. Ex parte Irvine, 2 All. 472. See General Rules 2. 6— Omission of words. If the words " before mei" are omitted from the jurat of an affidavit, it is a nul- lity. Lyons v. Ellison, Trin. T. 1862. 6— Obliterations. If there is an erasure, obliteration, or al- teration in the jurat of an affidavit, it ^1 AFFIDAVIT. AFFIDAVIT. 19 to be recciv- ho defendant mind to un- ded to assign erdict. Seo All. 373. aking. See 1 1. 37. iTltnesMB. belief of de- led the num< V. Travit, 3 enoe of what. V.l. if they had rer the costs, a different Arbitrations tate the place eforo a Com- irt vonld not » V. Doicnes, rat of affida- ier Abscond- lefect. See loner, titled in the jurat to de- n it is sworn, eme Court." le by an illi- it was read leponent be- f the rule of vine, 2 All. are omitted it is a uul- ». T. 1862. 'ation, or al- offidavit, it cannot be read : but where it appeared, on inspection of the affidavit, that the alleged obliteration was a flourish with the pen, forming part of the signature of the Commissioner, the affidavit was held suf- ficient, though such " flourish " passed through the date of the jurat and par- tially obliterated it. Doe dem Trider v. Mclntoih, East. T. 1871. 7— Objection to jurat— when must be taken. Where copies of affidavits in support of a motion have been served agreeably to rule 2, Hilary Term. 6 Wm. 4, any objection intended to be made to the jurat of the original affidavit should be taken before the affidavit is read, and cannot be taken afterwards. Jar vis v. Peck, 3 Kerr 507. Commissioners name omitted — Motion re- fused for defect. See Belyea v. Hamm, 2 Han. 27. VI. Miscellaneous. 1— Shewing Cause. Where the tacts stated in the affidavit, upon which a rule nisi is obtained are positively contradicted by the affidavits used on shewing cause, the latter must prev.iil. Ellis v. Newton, Ber. 77. Ray V. Desbrisay, Mich. T. 1866. 2 — If the affidavit in support of a motion, and that in shewing cause are contradic- tory, greater credence is to be given to the last affidavit, unless there are circum- stances in the case to throw discredit on the latter ; therefore, on motion of a party for the restitution of certain rooms in a house, supported by affidavits, which were contradicted by affidavits in shewing cause, and the probabilities of the case sup- porte'd the last statement, the motion was dismissed. Doe dem Johnston v. Roe, 8 Kerr 400. 3— Deponent's Addition— HemoriaL The omission of the deponent's addition in an affidavit of the Clerk's signature to a memorial, does not make it a nullity. Srott V. Garnet, 2 All. 624. 4— TTnsucoessfld application— Previous AflKdavits. Where an unsuccessful application is made to a Judge, and afterwards renewed before the Court, all the affidavits used before the Judge should be produced. Riordon v. Dufin, 3 4U. 124, 6— Irregularity— Waiver. An irregularity in an affidavit to hold to bail is waived by pleading to the action. Sec Practice VII. 4. Exemplication — Proof of. See Evidence VII. 5. 6 -Amended AiBdavit— Security for Costs. Where an application to a Judge at cham- bers for security for costs has failed on the merits, a new application may be made to the Court on amended affidavit. See Costs 6. Sheriff's Deed— Deputy Sheriff. See Evi- dence XI. 1. Casual Ejector — Judgment against — Va- cant Premises. See Ejectment VI. 2. Lost Deed — Secondary Evidence. See Evi- dence VII. 18. 7— xyeotment— ICon-payment of Bent. Affidavit of service of declaration by fix- ing a copy to the door of house, should state the name of the tenant from whom the rent is due. See Doe dem White v. Roe, 2 Kerr 360. 8-New Matter-Filing Affidavits- Leave. There is no arbitrary rule that an appli- cation for leave to file affidavits in answer to " new matter," under the Act iH Vic. 0. 41, s. 20, should be made before the ar- gument commences on the affidavits con- taining the new matter. Wetmore, J., dissentiente, [See Swinfen v. Swinfen, 1 C. B. 36 i.] Mitchell V. Sawther, Mich. T. 1871. 9 — Leave will not be granted to file affida- vits in answer to " new matter" under the Act 19 Vic. c. 41, s. 20, where the facts sought to be answered must have been within the knowledge of the party at the time he made his affidavit, and should have been stated by him at that time. Ex parte Gilbert, HU. T. 1873. 10— Feijury— when not assignable on. Perjury cannot be assigned upon an affi- davit taken before a Commissioner who had no authority to take the affidavit. See Regina v. Mcintosh, 1 Han. 372. 11— Service— Sufficiency of Affidavit. When the affidavit stated service of mo- tion to have been on B. W. H., without stating that he was the party's attorney — Held, insufficient. Brown v. Bartlett, 3 Kerr 369, AGREEMENT. AGREEMENT. 12 — Affidavit should state nume of person upon whom process served, when not served personally. See Sanarties altered by— Defence in Action. K., who held a quantity of logs claimed by P., sold them to H., who placed the money in the hands of defendant, both parties agreeing that if not replevied by P. in six days it was to be paid to H. — P. was about to replevy, but before the six days expired, K. agreed with him to submit the matter to arbitration, the mo- ney to abide the event ; but ailer the time elapsed, K. refused to arbitrate, and claim- ed the money under the first agreement. Held, In an action agaia?t defendant on the first agreement for the money, that as the substituted agreement altered the po- sition of the parties, it was an answer to the action. Keith et al., administrators, V. Skinner, 1 Han. 584. 3— Compensatory Agreement — Want of consideration- No loss sustain* ed— No right of action— Fraud on Crown. Plaintiff and defendant being licensed by the Crown to cut timber on adjoining tracts of land, and the defendant having by mistake cut upon the plaintiff's li- cense, they entered into an agreement whereby the defendant, in consideration of the timber out by him on the plain- tiff's license, grunted and made over to the plaintiff all his (defendant's) interest in a certain part of the ground described in his license, with the right to cut and carry away the timber therefrom, and agreed that he (defendant) would not out any more timber on the ground so trans- ferred to the plaintiff. Held, let. TLit as the timber when cut by the defendant on the plaintiff's license remained the property of the Crown, and did not vest in tne plointiff, he had not sustained any loss of property by the defendant's act, and therefore th; :e was no consideration for the agreement. 2nd. That without the assent of the Crown, the agreement did not operate as an assignmuut of any right to the plaintiff, and therefore the breach of it gave him no right of action. 3rd. That the effect of the agreement be- ing to allow the plaintiff to commit a wrong on the Crown it was illegal. Sharp v. McKeen, 2 Kerr 1)24. AGREEMENT. ALIEN. 21 4— Signing of agreement delayed— Subsequent signing— Betrospect- ive efEeot. Where an afjreenient to perforin work has been reduced to writing, but is not actu- ally sij^ned till a future day, there is no- thing to prevent the parties from binding themselves and making 'the agreement effective from the day it was entered into, though prior to the signing of it. Fen- nety v. Simrnds, Trin. T. 1863, 6— Oonstruotion- Logs. A contract to deliver a quantity of logs does not necessarily mean " merchantable logs," according to 1 Rev. Stat, c 96, but may moan such logs as are actually got in the part of the country where the par- ties live, and in construing the contract, the surrounding nircumstances, and the fact that merchantable logs could not be got in that part of the country, may be taken into consideration. Dollard v. Potts. Trin. T. 1866. 6— Personal liability— Company repre- sented to be inoorporated— Mis- representation as to incorpora- tion. Plaintiff entered into an ogreement with a Society by name, to do certain work : the Society was represented by the Oom- inittee acting on its behalf to oe incorpo- rated, and the contract was under seal, represented to be the corporate seal of the Society, and by a clause in the contract it was provided that the Committee should not be personally or individually liable to the plaintiff. It appeared afterwards that the Society was not inoorporated. Held, That, as there was no Company to be held responsible under the contract, the mem- bers of the Committee who had received the benefit of the plaintiff's work were personally liable ; that the clause in the agreement against their personal liability was only intended to apply where there w.ns an incorporated company liable on tho contract, and was repugnant and void where there was no such company to whoni the plaintiff could resort for pay- ment. Ifoifgr V. Rn'd, Alt'eh T. 1872. 7— Statute of Trauds- Interest in Land. Whore tho respective owners of adjoin- iiig lands agree bv parol to a survey and marking of the division lines, tho Court in J action of truspass, ««. VI. /riyit, by one against the other, lleld, That such agreement was not witlun the statute of fk-auds, not boini; fur the transfer of any interest or title to lands. See Lawrence v. McDoioall, Ber. 283. 8— Parties entitled to bring action— Interest. Where the words of an agreement are joint, yet if the interest be several, each party inny maintain an action, thus: — Where the defendant guaranteed " that the 'vages due W. K. and G. N. from J. K. for making timber shall bo satisfied when they brought the timber up," and the contract of hiring by W. K. and G. N. was separate and distinct. Held, That each could maintain an action on the guarantee. Nnville v. Joseph, lilt. T. 1832. 0— Bight to rescind agreement. Whore a number of persons jointly agree with another as to any particular matter, the agreement can only be rescinded by the consent of all. Palmer v. Long, Ber. 122. BREACH OF AGREEMENT. Unpaid Instalment — Damages — Cross Ac- tion. See Damages. Action before expiration of credit — See Ac- tion at Law VII. Action for breach. See Assumpsit I. ALIEN. 1-Liability for Tax. An alien resident in this Province in lia- ble to the payment of an exempt tax of thirty shillings annually, under tho Mili- tia Act 6 Goo. 4, 0. 18 ; and not merely to one payment of that sum. Watson v. Haley, 1 Kerr 124. 2-Tax, when recoverable. The alien tax imposed by the Act 6 Geo. 4, c. 18, must bo recovered by the quar- ter master in office when it is incurred ; therefore, a conviction for £3 for alien tax for the years 1846 and 1846, on the prosecution oi" a quarter master appointed in 1846, not being severable, is bad. Brannen v. Dunn, I AH. 218. 3— Officer's Beturn— Bvidence. Tho return made by a captain of a com- pany to a quarter ma^^tor of militia, ac- cording to the Act 6 Geo. 4, o. 18, stating u ^arty to bo an alien, is nut sufficient ovidouoe of that faot. Brannen v. Lea- iHtt, 1 All 220. 22 AMENDMENT. AMENDMENT. 4— Recovery of Judgment against, for tax— Evidence. The recovery of a judgment against a par- ty for hin tax as an alien, on the prose- cution of a quarter master of militia, with- out shewing that it has been paid, is not sufficient evidence of his being an alien, in a prosecution for a subsequent year's tax. Brannan v. Willlamm, 1 All. 221. 5— Discharge. An alien cannot discharge himself from the tax imposed by the Act G Geo. 4. c. 18, by shewing that he had enrolled himself and served in the militia of the Province. Brdnncn v. miliums, 1 Kerr 222. ALTERATION. 1— In Deed— materiality. Whether an alteration in a deed of convey- ance of the number uf acres sold is such a material alteration as to require expla- natory evidence before deed is admitted in evidence. See Moran v. Laird, 3 Kerr 403. Of Writ — Statute of Limitations. See Amendment 30. See also Limitation of Actions in. 1, 2. 2— Be-sealing Writ. An alteration made in, on the return day of a writ, though before it is returnable, vitiates it, unless it is re-scaled Andrews V. McKenzic, 1 All. 264. Of Highway — Notice. Sec Highways 11. ALBERT MINING COMPANY. See Joint Stock Company 15. AMBIGUITV. Boundary Line. See Crown Grant T. 6, 9. Policy of Insurance, description of voyage. See Insurance 21. AMENDMENT. I. PliEAOINOB, II. Writs — Returns. III. Records — Rolls - Rules. IV. Miscellaneous. -Bail-piece — I. Pleauinuh. Warrant — substitutod for SumnionH. See Malicious Promecutiou A. Nisi Prius Record — Copy — Vari;»nce. See New Trial 111. 53. Amendment at Trial — Description of Mill. See Pleading I. 24. Renlovin Bond — Statutory form. See Bond is. After Demurrer Books delivered — Allowed. See Pine v. McLuchlan, Jier. 81. 1— Variance— Record— Description. On the trial of an issue on nul ticl rvcord, a variance between the record produced and the description of it in the declara- tion and replication may bo amended. See Roberts v. Watson, 1 All. 2. Declaration. Promissory Note — doubt whether given to one or both defendants. See Pleading L26. 2— After Judgment on Demurrer. Court granted leave to amend the decla- ration where the plea, if allowed to stand, might be a bar to the whole cause of ac- tion, — the demurrer having li'icwise aris- en out of Acts of Assembly, complex and difficult in construction. Voy v. Barker, 1 All. 29. 3— After second Demurrer. Aflter judgment on a second demurrer to a declaration on an administration bond, leave was given to make a second amend- ment ; the plaintiff's counsel stating that he had been misled by an expression of the Court in giving judgment on the de- murrer. Sherlock v. A/c Gee, 1 All. 436. 4— Declaration— Indorsement of BilL In action by Survivors of Firm, the de- claration alleged the bill was indorsed to Firm. Held, That the d(^oll•ratiou might be amended under Act 7 Wni, 4, c. 14, B. 7. See Tarratt v. Wilmot, 1 All. 353. 6— Trespass- Error in copying Deola< ration. Where an attorney's clerk in copying a declaration in trespass, inserted the word " whereas," in consequence of which the defendant demurred, and the plaintiff be- ing unable to discover any error in tho draft of declaration, applied to tho de- fendant to be allowed to inspect tho copy served, and offered to pay him the costa of amending, if necessary, which tho de- fendant refused to comply with, and on argument of the demurrer, judgment was given for the defendant; the plaintiff' was allowed to amend on payment of costs up to the time of tho demurrnr — it AMENDMENT. AMENDMENT. 23 appearing that the draft and copy of de- claration filed were correct. Wilson v. Andrews, 1 All. 670. 6— Trespass— Defendants not all served witn process— Striking out of Nisi Frius Record and Declaration, name of defendant not served. In trespass for assault against three per- sons, one of them was not served with process, the others appeared and pleaded, and a verdict was found against them. A motion having been made to set aside the verdict and Nisi Prius record on the ground that the cause was not at issue till the other defendant was before the Court, the plaintiff was allowed to amend by striking the name of that defendant out of the Nisi Prius record and declara- tion, and the defendant's rule was refused. Ayre V. Main, Mich. T. 1866. 7— Adding Counts— Refusal. In an action against the registered owner of a vessel for negligence of the master, whereby the cargo was detained, and the plaintiff sustained damage, and had to pay a sum of money to get possession of the cargo, a verdict was given for the plaintiflf. On motion to enter a non-suit on the ground that the defendant, as re- gistered owner, was not liable, the Court refused to amend the declaration by add- ing a count charging him with being the agent of the master, and wrongfully ad- vising him to detain the cargo unless plaintiff paid him 9496, and alleging that the defendant did detain the cargo till such money was paid, — the object of such amendment being to retain the ver- dict for the amount so paid to defendant. Newbury v. Youttg, East. T. 1872. 8— Striking out name of one of de- fendants—Not shewing preijudioe. An application to amend at Nisi Prius by striKing out the name of one of the defendants was opposed on the ground that Buoh defendant was entitled to oosts, and that the other defendant was entitled to shew by affidavit that he would be pre- judiced by the amendment. The Judge offered to receive the viva voce evidence of the attorney and the other defendant on these points, which was declined. Held, That the amendment was properly made, without costs to the defendant, whose name was struck out. Morrow v. Hamilton, JUL T. 1872. 0— Varianoe in Note— Judge's decision on trial. In an action on a promissory note alleged to be payable on demand, tbt. note offered in evidence was payable twelve months afler date : the plaintiff having applied to amend, the defendant asked for time till the next day to obtain the affidavit of the real defendant. The Judge refused this, but offered to allow the defendant about half an hour for the purpose, which he declined, and the amendment was ac- cordingly made. The Court refused to interfere with the Judge's decision, — it appearing that there was but one note between the parties, that the defendant had seen it in the handrt of the plaintiff's attorney after the action was brought, and had promised to pay it, but afterwards refused to do so. Minus Insurance Co. v. 2iivers, Trin. T. 1872. 10— lyectment— Demise expired. Where the dcnilsu stated in a declaration of ejectment had expired, the Court re- fused after a delay of three years, to allow the plaintiff to amend by extending the demise, though it was suggested the de- fendant would set up the statute of limit- ations as a defence to a new action. Doe V. Todd, 1 All. 601. 11 — Where an action of ejectment was com. menoed in 1849, the demise in the decla- ration being for seven years, and judg- ment was signed in that year, but no writ of possession was issued, and the tenant had since died ; the Court refused to en- large the demise, though the lessor of the plaintiff swore that he had abstained from issuing execution at the request of the tenant, who had promised to pay the costs and to indemnify the lessor of the plain- tiff ago' .St a legacy which was charged on the land, and which he had been obliged to pay in 1864. Doe d. Fault v. Jones, Mich. T. 1866. 12— Desoription— Abuttals. In trespass quare CI. /regit, not describ- ing the close oy abuttals, defendant plead- ed liberum tenementum, and proved title to a close within the parish mentioned in the declaration ; the plaintiff was allowed to amend, setting out the close br abut- tals. Deshrisay v. Livingstone, Trin. T, 1864. 13— Special Untitling— Oommenoement of Action. In an action on a promissory note dated 22ud April 1864, payable twelve months after date, the declaration was entitled of Easter Term 186S, (the first day of which was before the note was due,) and the 24 AiMENDMENT. AMENDMENT. ' Judge allowed the record to bo amended by entitling the declaration specially of a day subsequent to the note becoming due. Held, (after inspecting the writ in the cause) That the amendment was properly made. Jirown v. Foster, Hil. T. 1866. 14— Consideration— Allegation— Proof. It is necessary not only to allege the actual consideration, but the proof must correspond with the allegation. In this case the plaintifi' alleged that the consid- eration consisted oi certain stand ing trees, (foods, wares, and merehandize, and stumpage; the evidence shewed the con- sideration 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 nonsuit, on the condition of the pay- ment of such costs. Whitnei/ v. Marks, 1 A«T 179. 16— Entitling Declaration in the Becord —Limitation of Action — Insur- ance Policy. By one of the conditions of a policy of insurance the non-comnicncomeut of an action within a year ailcr the loss was declared to bo a defence. In a Ruit on the policy this objection was tnkon; it ap- pearing by the Nisi Prius record that the action was commenced after the year. Application to amend the onlitling of the declaration in the record was refused, there being nothing to show that such amendment would make the record cor- respond with tlio declaration on file. Evidence was also offered to shew the time of commencing the action, which the Judge thought insufficient, and the defendant had a verdict. Hold, That his decision was right. Commercial Bank V. JUtna Ins. Co., JUL T. 1863. 16 — If it had appeared that the declaration on file was entitled of a term within the year. Semhk — That the Court on mo- tion for a now trial would have amended the Nisi Prius record to correspond with \i.—lbid. 17— Plea— After Demurrer. Atlor demurrer i.s orgued the Court will allow the plou to bo withdrawn upon pay- ment of costs of demurrer. Strang v. Bell, Ber. 287. R«pHoation — Omission of entry of former prooeedingB. See Pleading 1. 7. Suggestion of. See Summary Ac- Death — tion 4. 18— Bill in Eqmty Pleadings— Practice. A Court of Equity has an inherent power to amend the pleadings in a cau.sc, and an amendment may be made ex parte ; though, ordinarily, notice should be given. Wiggins v. Hendricks, East. T. 1872. In a foreclosure suit, the mortgage was par- ticularly set out in the bill, and the land described as being in the Parish of K. (according to the mortgage) : the bill was taken pro confesso, and the plaintiff after- wards discovering that part of the land was in the Parish of N., obtained an ex parte order to amend the bill in the de- scription of the situation of the land. The property was sold under the decree in February; the defendant knew of the advertisement, and was present at the sale ; and in May he applied to set aside the proceedings ibr irregularity. Held, 1. That the mortgage having been par- ticularly set out in the bill, no amend- ment was necessary, 2. That if the amendment was necessary, the defendant had not been prejudiced by it. 3. That if an amendment made ex parte viaa irre- gular, the defendant should have applied before this sale, tu set aside the order, and had waived the objection by his de- lay. Ibid. II. Writs — Returns. 1— Sheriff— Beturn on writ. Where the Sheriff had under au execu- tion against U., at the suit of A., levied on the goods of C, and returned the exe- cution satisfied, but C. had since recover- ed the amount from the Sheriff, who was indemnified by A., the Court allowed the execution to bo taken from the files of the Court, in order that the Sheriff might amend his return. A, having lost the fruits of his execution. Ketchum v. Oi- berson, 1 Kerr 619. 2— Bxecution and Judgment- Variance. On a motion to set aside a judgment and execution on the ground (^inter alia) that the execution differed in amount from the judgment, a cross application to ment of costs. Lynott v. ]ication to itod on pay- V, 1 AIL 36. 4 ■A :A .isued It «' t\ . ititatum clause, will not be granted unless the writ is found on file, or some record of it is produced. Qusere, Whether such an amendment would be made after such a lapse of time, and after the defendant had been arrested on a second execution, which was also irregular. Brown v. Par- telow, 3 Kerr 324. 4— Summons— Death of one defend- ant. Where one of the persons named as de- fendant in a suit, had died before sum- mons issued, the pleadings were amended by striking out his name, and answer was re-sworn. See £i/ers v. Harrigan. 1 Han. 231. Writ of Inquiry. If necessary to set out whole declaration in writ^ — May be amended. See Practice X. 5. III. Records — Rolls — Bail-piece — Rule. 1— ITisi Frius Record— i^eotment— No issue. If alter the jury are sworn in an action of ejectment, it be discovered that there is no issue, the trespass and ejectment being charged on the record to have been committed by the casual ejector in- stead of the defendant ; the proper course is to discharge the jury, and amend the record at Chambers. Doe dem Andrews V. Seefye, 3 Kerr 134. a— Judgment Soil. On a declaration containing five counts, there was a verdict for the plaintiff on the sboond, and no notice taken of the others. After the expiration of two terms, while a motion for a new trial was pend- ing, the plaintiff entered up judgment on the verdict without any continuances : the defendant brought a writ of error, assigning as grounds, the absence of any findmg Dy the jury on the four counts, and the want of continuances on the roll. The Court allowed the plaintiff to amend the roll by an entry that the jury were discharged from any finding on the other four counts, and also by entering ooa- tinuanoes from the return of the dktrin- ga» to the time of signing judgment. McMillan v. Ritchie, 2 Ail. 469. 8— ITuno pro tuna Where the plaintiff's attorney had acci- dentally omitted to insert the amount of dkuugeii and ooBto in the judgment roU, 4 but issued execution for the amount, the Court allowed the roll to be amended nunc pro tunc; though the defendant (re- lying upon the omission) had brought an action of trepass against the plaintiff for seizing his property under the execution. Smith v. Soneo, 4 All. ^66. 4— Judgment Boll and Execution- Errors. Semble, That errors in the judgment roll and execution are not sufficient to invali- date a bona fide sale made by the sheriff; as they may be amended. Doe v. Don- nelly, 3 Kerr 66. 5— Postea. If a declaration contains several counts, some of which are bad, and a general ver- dict is entered on all the counts, the postea may afterwards be amended by confining the verdict to the good counts, if the evidence given at the trial was ad- missible upon them, and it cannot be in- ferred that any of the evidence or any part of the damages was given distinctly on the bad count. Milner v. Gilbert, 1 All. 51. 6— Bail Piece— Bight to amend. Where the defendants' attorney in pre- paring a special bail piece by mistake omit- ted one of the initial letters of the plain- tiff's name, but stated the name correctly in the notice of bail, and proceedings were taken against the bail, tne Court refused to set aside the recognizance roll on ac- count of the variance between it and the bail piece, and allowed the plaintiff to amend the bail piece by inserting the in- itial letter, on payment of costs, it appear- ing that the bail could not have been mis- led by the mistake, and that no injustice would be done by the amendment. Ettey V. Brown, 2 All. 527. Such a mistake would have been amendable without consent of the bail, before the Act 14 Vic. 0. 20. A bail piece is a " legal proceeding," within the meaning of that Act. Semble, That the bail would have been liable on the recognis- ance, without amendment, if the facts had been properly suggested in the recog- nizance roll. Ibid, 7— Consent Bule— Terms of amend- ment. The defendant in ejectment entered into a general consent rule ; at the trial, the Judge directed a verdict for the defend* ant for all but a small part of the land deioribed, but the jury did not agree, and 26 AMENDMENT. APPEAL. after the trial, the defendant obtained an order to amend the consent rule by strik- ing out that portion of the land, on the Sound that it was included by mistake, eld, That as the plaintiff was entitled to a Terdict for that part of the land, and consequently to the general costs of the cause, the amendment could only be made on payment of such costo by the defend- ant. Doe T. Day, 3 AU. 440. IV. Mlf^OELLANEOUS. 1— Alteration or Writ— Befusal to amend. Where the plaintiff altered the return day of a writ from the first to the last day of a term, in consequence of which a ver- dict in his favour was set aside, the Court refused an application to amend the writ by striking out the alteration and restor- ing it to ite original form, though the nl-iintiff was barred by the statute of Urn- uS from bringing a fresh action. V. O'Donnell, 1 AU. 361. .i—k^xoamaory Note— Befbsal to amend. The decbration in the first and second 10 >8 sta promissory note made by the uefcr.d.^E'i f > tht plaintiff 31st March 1841, for £lOi, and in the third and fourth counts a note dated 9th July 1844, of a similar amount ; the note proved was a joint note, made by the defendant and one J. F. E., to the plaintiff, dated 28th February 1842, for £104 17s. Id. Appli- cation was made to amend, which was re- fused. On a rule to set aside the verdict : Held, That the note set out was a sepa- rate note, and the note proved was a joint note ; that if the note nad been truly set out the defendant would have had a right to plead in abatement ; and therefore the Judge was right in refusing the amend- ment, and the variance was fatal. Mc- Keen v. Estabrooks, 3 Kerr 369. 8— Judge refUBing amendment. When a Judge at Nisi Prius refuses an amendment, the Court will not review his decision unless they are satisfied injustice has been done by the refusal. McAllister V. Day, 4 AU. 37. Semble, That aii amendment which would introduce a new cause of action, ought not to bo allowed. Ibid. 4— ICame of Parish— Variance. A variance in the description of the par- ish in an aotion of ejectment may be amended under the act 7 Wm. 4, c. 14, after the counsel has addressed the jury, and the Judge is not bound to receive new evidence on the part of the defen- dant, to shew that the parish was not rig) % stated after the amendment. Doe V. Pitt, 1 AU. 386. 6 —Adding name —Foreclosure suit. Where an amendment was made in a fore- closure suit, by adding plaintiffs after the filing of the bill, the defendant was allow- ed a month to answer after service of the order to amend, and of a copy of the amended bill. Wright v. Evanson, 1 Han. 232. Declaration amendable as to description — Amendment must be made at trial. See Pleading I. 24. Lateness of Amendment — Consent rule. See New Trial III. 54. Agreement of reference at Nisi Prius. See Arbitration V. 6. Amendments in pleadings in Equity. See Practice in Equity. ANCIENT DEED. See Deed I. 7. ANSWER IN EQUITY. See Equity. APPEAL, See Privy Council. " Supreme Court in Equity. Entry of. See Practice V. 3. Insolvent Act of 1869 — Summary convic- tions. See Certiorari I. 6, 6. 1— From Judge in Equity. The Supreme Court nas jurisdiction to hoar an appeal from the decision of a Judge in Equity, though notice of the grounds of appeal has not been served on the Judge as directed by the Act 17 Vic. 0. 18, s. 33. McDade v. Petert, Mich. T. 1871. Reviewing Judges order for leave to appeal. See Practice V. 5 a. 2— From Probate Court. Appeals from the decision of the Probate Courts must bo made to the Supremo Court, and not to one Judge sitting in Equity. Exparte Roach, Mich. T. 1871. m ■J ■ / y APPEAL. APPOINTMENT OF OFFICER. 27 3— Costs. When a Judge declines to hear such an appeal for want of jurisdiction, he has no power to give costs to a party appearing to oppose the appeal. Ibid. 4— Granting farther time. When in consequence of an appeal having been made to the wrong tribunal, the time for appealing allowed by 1 Rev. Stat, c. 136, s. 46, had expired; the Court granted further time on filing a proper bond for costs, and on paying the opposite party the costs of applying to set aside the appeal. Exparte lioach, Hil. T. 1872. 6— Cause depending on credibility of witnesses heard before Judge — Finality. When a cause was heard viva voce before a Judge in Equity, and defendant, alto- gether upon the credibility of the respec- tive witnesses, the Court refused to hear an ' appeal from the Judge's decision. Smith V. Armstrong, East. T. 1872. 6— Decree— Variation or reversal of— Subsequent proceedings. If a decree or order of a Judge in Equity is reversed or varied by the Court of Ap- peal, any subsequent proceedings in the cause take place in the Court below. AlcLeod V. Thomas, East. T. 1871. 7— Filing Bond— Leave to appeal- Conditions. A Judge in Equity refused to hear an appeal from the Probate Court on the ground that he had no jurisdiction, that the appeal should have been made to the Supreme Court. Application was then made to the Supreme Court within six months after the decision in the Probate Court, and leave given to appeal, on which the appellant filed a bond for costs. On application to set aside the order for leave to appeal, on the ground that the affidavits on which it was obtained, were improperly entitled, and that the bond was not in the form required by the 1 Rev. Stat. e. 136, s. 46, the appeal was ordered to be heard on the appellant fil- ing a bond conditioned to pay such costs as the Supreme Court should adjudge, and on payment of the costs of the appli- cation, though more than six months had plapscd since the decision of tho Judge of Probates. Ex parte Stockton, Hil. T. 1872. S — County Court — Interlocutory Order. Quare, Whether there is anv appeal to the Supreme Court under the Act 30 1 Vic. c. 10, from an interlocutory order of a Judge of a County Court : but an order absolutely to stay the proceedings in a suit, is a final decision, and may be appealed from. Hanniwjton v. Stewart, Hil. T. 1873. APPEARANCE. Summons — Defect in, cured by appearance. See Justices of the Peace IV. 17. Voluntary dispensing with time. Sec Pleading I. ^7. Filing Pica before appearance. See Summary Action 2. Entering Special BaiL Entering special bail and giving a notice thereof signed " Attorney for defendant" is a sufficient appearance, without adding express words of appearance. Fleming V. Shaw, C. Ms. 117. APPOINTMENT OF OFFICER. 1— Harbour Master— Holding over— Becovery of Fees. Where the Justices of the Peace at the General Sessions had always appointed the harbour master annually, including him in the annual list of the parish offi- cers, and had from time to time made change in the list as regarded the office, there being no other minute or warrant of the appointment than the list entered on the Court minutes. Held, That the Elaintifi^, who was so appointed, could not old over afler the year against the de- fendant, appointed in his place, nor reco- ver from him the fees of office received by the defendant while acting in the office under his appointment: the plaintifi''a appointment was either not valid at all, or expired at tho termination of his year and the appointment of his successor. Stew- art V. McDonald, 1 Kerr 52. 2— Commissioners of Sewerage. By tho Act 18 Vic. c. 38, the Common Council of St. John is authorized and empowered to appoint, and also " to re- move and re-appoint from time to time, ip may bo expedient," two Commissioners of Sewerage and Water Supply. Held, That the appointment was during the pleasure of the Common Council, and that they were the proper judges whether it was ''expedient" to remove the Commisaion- ers. Exparte Sears, Trin. T, 18§4. 28 APPROPRIATION. ARBITRATION AND AWARD. Without limitation is an appointment for life. See Joplin t. Davidson, Bcr. 308. Under Medical Act. See Pleading I. 56. Peterson v. Harding, 4 All 583. DIRECTORS OF BANK. See Bank 3. APPORTIONMENT OF DAMAGES. Trespass on two lots — (ylaim — Verdict gen- eral. See Trespass IV. 6. APPRAISERS. Appointing of. See Landlord and Tenant 14. APPRENTICE. Infant- -Conviotion. A conviction of an indented apprentice for making brooms contrary to an agree- ment contained in an indenture which he executed while an infant, is bad. Regina T. Haws, 1 All. 100. The provisions of the Rev. Stat. o. 134, s. 6, apply to all indentures, whether the ap- prentice is above or under fourteen years of age, and unless the requisites of that section are complied with, the apprentice is not liable to imprisonment by Justices under the 15th section of the Act. Har- rit V. Rmlston, Trin. T. 1872. APPROPRIATION OF PAYMENT. Dealings with Old and New Firm— Xtemittanoes— Application of. Defendant being indebted to a firm, of which one of the plaintifis was a mem- ber, after the transfer of the debts and business of that firm to the plaintifis, con- tinued to deal with and make remittances to the new firm, with a knowledge of the transfer. Held, That the jury were war- ranted in finding that the remittances were intended to be, and were properly applied by the plaintifis, to pay the debts due the old firm. Esson t. Dunn, Mich. T. 1862. Want of Privity. See Bills and Notes V. 20. 0et Off. See Bills and Notes Y. 17. Application by law — Set off and payment — Right of defendant to show appropriation on cross examination of witnesses. Evidence VIII. 7. See ^or)c and Labour — Agreement to appro- See Assumpsit III. priate towards rent. 20, 54. Money Appropriated. See Assumpsit III. 35, and Bills and Notes V. 17. APPURTENANCES. See Crown Grant. ARBITRATION AND AWARD. I. Submission and Reference. II. Revocation. III. Matters Vitiating Award. IV. Setting Aside Award. V. Miscellaneous. Arbitration and Award. 1— Submission and Beference. A submission to arbitration allowed to be made a rule of the Supreme Court under the Act of Parliament 9 and 10 Wm. 3. c. 15. Doe d. Allen v. Murray, 2 Kerr 359. 2 — Must be made a rule of Court before moving to set aside award. Nugent v. Barron, 2 All. 621. 8— Enlarging Time. When the time for making an award is enlarged by mutual deed of the parties, the effect will be the same as if the enlarg- ed time had been that originally inserted in the submission. See Ferguson v. Munro, 2 Kerr 660. 11. Revocation. 1— Joint Submission— Forfeiture of Bond — Damages. One of two persons on the same side may revoke a joint submission to arbitration : and such revocation will bo a forfeiture of a joint and several bond by both, con- ditioned to stand to, obey and perform the award. Hathcway v. CUff, 2 All. 267. When arbitrators, after a revocation, make an award which is unimpeachcd, the amount awarded is a proper measure of damages in an action on the arbitration bond. Ibid. a— Notice to Arbitrators not to proceed —Party desirous to revoke— Prac- tice. On a reference under a rule of Court, notice given by one of the parties to the AWARD. ARBITRATION AND AWARD. ARBITRATION AND AWARD. 29 Assumpsit III. Assumpsit III. .17. )ES. AWARD. ERENCE. Award. LWARD. )nce. 1 allowed to be >e Court under nd 10 Wm. 3. virray, 2 Kerr ' Court before 1. Nugent v. ; an award is if the parties, i if the eularg- inally inserted Ferguson v. feiture of same side may ;o arbitration : 30 a forfeiture by both, con- ' and perforin '//, 2^«.267. ocation, make ipeached, the er measure of iie arbitration >t to proceed ivoke— Prao- ulo of Court, parties to the arbitrutors not to proceed, cannot, since the Act 7 Wui. 4, c. 14, s. 27, affect the validity of the award. If either party be desirous of revoking the submission, he should apply to a Judge. Lloyd v. Hos- kins, 1 Kerr 132. III. Matters Vitiatino Award. 1— Matters not included in Submission —Pleading in Bar. 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 in- cluded in the submission. ITill v. Coy, 1 Kerr 187. 2— Want of Notice. Where a question upon a disputed bound- ary was left to reference, and the arbitra- tors informed the parties that they would employ a surveyor to make a survey of the land, which they were empowered to do under the terms of the submission, before they made their award ; but they never- theless proceeded to make their award without any such survey, and without any notice that they had changed their inten- tion; the Court set aside their award. Doe dem. Allen v. Murray, 2 Kerr 439. 3— Award by two without notice to third. Where a cause is referred to three arbi- trators whose award, or that of any two of whom is to be final, two of these can- not proceed to make an award without giving notice to the third. Raymond and another v. Luke, Ber, 116. 4— Uncertainty. An award directing " security to be given on a certain part of the property of A. B.," without stating what part, is void for uncertainty. Burgoyne v. Burgoync, V. M$. 120. 6— Inter est — Partiality. The Court will not disturb an award made under a rule of reference, on the grounds of interest and partiality in the arbitra- tors, unless the interest or partiality is very clearly shewn ; especially (^per Par- ker, J.) where a party after discovering this had an opportunity of applying to a Jud<;c to revoke the submission, of which he has not availed himself. Lloyd v. Iloskins, 1 Kerr 132. Averment — Condition — Indenture. See Pleading T. 10. 6— Amount exceeding Penalty. An award is not invalid because the amount awarded exceeds the penalty of the arbitration bond ; neither will the re- covery be limited to that penalty in an action on the award which proceeds on the mutual submission of the parties. See Ferguson v. Munro, 2 Kerr 660. IV. Setting Aside Award. 1— Irregularity of Proceedings. Where the proceedings of arbitrators had not been strictly regular, and the conse- quences of sustaining the award would be more serious than those of setting it aside, the Court set it aside, though the affidavits were contradictory, — it being doubtful whether the party had received notice of a meeting. Brotcn v. Gurrier, 2 All. 124. It is necessary to give notice of an adjourn- ed meeting, where the parties are not present at the adjournment. Qusere, Whether notice of a meeting to the coun- sel in a cause which is referred, is notice to the party ? Ibid. 2— Want of Notice— Mutuality. The defendant having cut lumber on the plaintiff's land, agreed in writing to pay him such sum as two arbitrators should decide — it being understood at the time, that the plaintiff was to show the bounds of his land. The plaintiff afterwards, without notice to the defendant, pointed out his boundaries to the arbitrators, who awarded a certain sum to be due him. Held, That the award was bad for want of the notice. Therriau v. Therriau, 4 All. 48. Quxre, Whether the agreement to refer, being signed by the defendant only, was not bad for want of mutuality. Ibid. 3— Not signing within Time. Under a submission at Nisi Prius to the award of A, B and C or any two of them, they agreed upon an award, and it was drawn up, signed by A and B and deliv- ered to C to be signed by him and hand- ed to the parties ; C discovered a mistake, to which A and B consenting, the award was corrected and signed by all three, but not within the time limited. The Court refused to give effect to cither. Wilson V. Kerr and Campbell, Ber. 280. 4— Arbitrators ezcdeding power. An award made under a rule of reference. 30 ARBITBATION AND AWARD. ARIHTRATIUN AND AWARD. set aside ou account of arbitrators excccd- iug their power. See Campbell v. HTfcon, Ber. 104. 6— Making award in favor of defendant under rule of reference to ascer- tain amount due plaintiff— Impro- per credits. When a verdict was taken fur the plain- tiff fur jCIUOO subject to the award of ar- bitrators to be agreed upon, and a rule of reference, subsequently drawn up, which, after reciting the agreement, directed that the award shuuld be entered on the postea as a verdict of the jury — Held, That the award could not bo made in fa- vour of the defendant, and that the power of the arbitrators was confined U) the quantum of damages only. Held also That as the submission was " all matters in the cause," they could not give the defendant credit for an item which could not come under the head of payment or set off in the cause. Vamphcll v. WiUon, Ber. 104. 6— Further information after close of evidence. When after the evidence had closed, and the attorneys for the parties had left the room, the defendant's attorney made a communication to one of the arbitrators respecting a matter in controversy, in con- sequence of which the arbitrators obtain- ed further information on the subject, and one of them swore that his decision was materially influenced thereby ; an award in favor of the defendant was set aside, though the other arbitrators swore that they were not influenced by the 8ub.se- quent information. M'C'auslandv. Power, East T. 1872. 7— Improper reception of evif* qnce. Where arbitrators improperly receive evi- dence ex parte the award will be set aside without reference to the probability of their having been influenced by the evi- dence. Ibid. 8— Swearing witnesses— Waiver. An award will not be disturbed where the witnesses were examined without being sworn, although the rule of reference re- quired them to bo sworn if the party ob- jecting to the award were present and consented to such examination. Itcilley V. Gitlam, Ber. 120. a — An award made under a reference at Nisi Prtus will not be set aside on the ground that witnesses were examined without being sworn if the objection was I not taken before t^e arbitrators. Seelytt V. Kelly, nil. T. 1827. 0— Objections— Merits. An application to set aside an award will not be sustained on objections going only to the merits. Forbes v. Lord, (\ Ms 60. 10— Discovery of new evidence. An award made under a rule of reference at Nisi I'rius, will not be set aside on the ground of the discovery of material evi- dence after the award, where the party who speaks as to the discovery of the pa- per, swears only in general terms, that he had made diligent search, etc., without stating the particular circumstances re- lating to the search and finding. Wood- icard V. Merritf, O. Ms. 86. 11— Awarding costs— Vitiating whole award. A cause was referred — the costs to abide the event of the award. The defendant admitted that the sum claimed was due at the time of the arbitration, but object- ed to pay the costs because the action was commenced before the credit expired, and the arbitrators having found this to be the fact, awarded the amount admit- ted to the plaintifl', and directed that he should pay all the costs. Held, It ap- pearing that the award had been made on condition that the defendant should not be subject to costs, and the whole award not being sustainable, that it was bad altogether. Emm.'> v. Nclll, .H All. 438. 12— Laches. '^ The Court will not entertain an applica- ' tion to set aside an award made under rule of reference, when the award was to be i, entered on the postea as a verdict of a .ft* jury when the applicant has been guilty i^ of laches. Sec Foxdis v. Ki'nnear, Ber. 26. . 4 ..« Setting aside judgment on award for fraud. Sec Practice VI. 5. IS— Time of application to sat aside award. An application to set aside an award up- on a submission made pursuant to the Statute 9 and 10 Wm. 3, c. 15, must bo made before the last day of the term next after the publishing of the award. Car- ter v. Adam, 2 All. 211. 14 — 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 aft«r 15 17- VAIID. ARBITRATION AND AWARD. ARBITRATION AND AWARD. 31 irs. Sf'-It/f. I award will f going only ', a. Ms 60. Loe. jf reference iside on the laterial evi- ) the party y of the pa- -nis, that he tc, without istances re- nil. Wood- ng whole sts to abide 3 defendant cd was due but object- 3 action was it expired, lund this to mnt admit- ted that he 'eld, It ap- bcen made ant should the whole ^hat it was W, 3 All. |an applica- under rule was to be erdict of a eon guilty r, Ber. 26. for fraud. >t aside the award is published. Nugent v. Bar- ron, 2 All. 621. 15 — Where an award made under an order of Nisi Prius is entered on the iwstea as a verdict under the Act 12 Vic. o. 39, an application t<) set it aside may be made at any time before judgment is signed, if within twenty days after the award is filed with the Clerk of the Circuits. Brown v. Harding, 3 All. 351. 16— Subject to same rules as motion for new trials. Motion to disturb award entered on pos- tea as a verdict of jury, must be governed by same rules as motions for new trials. See Foulis v. Kinnear, Ber. 26.. 17— Umpire— Joining with Arbitratora Where the submission to arbitration was by mutual bonds, conditioned to abide the award of two arbitrator.' 'f made by a certain day ; but if they failed to make an award, then to abide by an umpirage to be made on the same day. Held, That an award made in due time would be valid as the award of the two arbitrators, although the umpire joined with them. Ferguson v. Munro, 2 Kerr 660. The name of B. P. was 'nserted as umpire in the condition of the defendant's bond, but omitted in that of the plaintiff's, a blank left for his name not having been filled up. Held, That the award was not vitiated by B. P. joining with the two . arbitrators in making it, although there was no mutual submission to him. Ibid. Arbitrators competent to decide matters of Law. See Foulis v. Kinnear, Ber. 26. 18— Attachment. Award must be before Court before an {tttachment will be granted for non-per- formance. See Marks v. Marks, 3 Kerr 486. V. MiSOELLANEOCS. 1— Award good in part— Entry on postea. An action of trover was referred by order of Nisi Prius; the arbitrators awarded that the defendant should restore the pro- erty to the plaintiff, or pay him j£152. eld, That the award was good as to the latter alternative, and that the verdict should be entered on the postea for the amount. Hughson v. White, East. T. 1831. 2— Operation of award. In trespass qiuire VI. fregit, where the legal title to the land was in the defendant who, some time before the present action, had brought ejectment against the plain- tiff to recover the land, which action was referred to arbitration, and the arbitrators awarded that the present plaintiff was en- titled to retain the land as his own proper- ty, and that the present defendant should forthwith execute a deed of the land to the plaintiff or his heirs. Held, That the award did not o|)erate as a conveyance of the land, and that the defendant was not estopped from setting up his legal title as a defence in this action. Oliver v Elliott, Trin. 7*. 1861. 3— Divisible— Affidavit of Arbitrator. A cause was referred at Nisi Prius — the award to be entered on the postea, and costs to abide tiio event. The award or- dered that defendant should pay plaintiff a certain sum, and that each party should pay his own costs. Held, That the award was divisible ; that the part relating to the costs could bo separated from the rest, and the award entered up as a verdict, with costs. Also, that an ufiidavit of the arbitrators was inadmissible to shew that if they had known they had no power over the costs, they would have awarded a dif- ferent amount to the plaintiff. Ilusscy v. Ferguson, Hil. T. 1864. 4— Married woman cannot bind herself by bond to refer. A married woman cannot bind herself by bond to refer matters to arbitration, and her coverture is a good defence to an ac- tion for non-performance of an award made under such a reference, — there be- ing no mutuality in the submission. Har- per V. Alexander, Mich. T. 1866. 6— Beasonable certainty. An agreement of reference recited that an action by defendant against plaintiff was pending ; that the parties had agreed to refer the action and all claims, etc., be- tween them relating thereto, or growing out of their dealings ; that the action should be discontinu'' '< , urd that the costs of the cause and of the reference should be in the discretion of the arbitrators. The arbitrators awarded that defendant should pay plaintiff £1000, in ftill pay- ment and satisfaction of all accounts and transactions between thorn, and in full and final adjustment of all matters in dif- ference ; that defendant should pay plain- 32 ARBITRATION AND AWARD. ARBITRATION AND AWARD. tiff £12, the costs of the reference, and that on payment of these two sums, the parties should be ipso facto mutually dis- charged from all claims and demands which they had against each other. Held, That the award was reasonably certain, and in effect decided that each party should pay his own costs of the action. Adam v. Carter, Hil T. 1864. 6— Amendment of Agreement of refer- ence— BefUsal to insert clause. Where the plaintiff's attorney, in making a fair copy of an agreement of reference at Nisi Prius, by mistake omitted the clause that the award was to be entered on the postea as a verdict, the Court re- fused to allow that clause to be inserted in the agreement after the plaintiff had caused it to be made a rule of this Court. Tubin V. Layton, 2 All. 584. 7— Costs— Power to award— Postea— Separate actions. An action of assumpsit and an action of debt pending between the parties, they agreed to refer them to arbitration — the award to be entered on the postea as a verdict, the costs of the causes to abide the event, and the costs of the reference to be in the discretion of the arbitrators. The arbitrators awarded that the action of debt should be discontinued, each party paying his own costs ; that £43 were due the plaintiff ill the action of assumpsit, and that each party should pay half the costs of the reference — the moiety payable by the defendant to be taxed as costs in the cause. The Court refused to make an order for entering the award for the plain- tiff on the postea in the action of assump- sit, unless he consented that a verdict should be entered for the defendant in the action of debt. Abbot v. Abbot, 4 All. 87. 8— Power in Judge to order costs— Set off. Where a case is referred at Nisi Prius, and judgment on the award is to be en- tered as a verdict, the Judge of the Court of Nisi Prius may make an order for full costs, where the plaintiff's demand is re- duced by set-off; and such order may be made ex parte. Seeft/e v. Styles, 3 All. 246. 8— Referees— When considered as agents of parties in stating ac- counts. Plaintiff being lessee of land, assigned one half of it to the defendant, who enter- ed into a bond to pay the plaintiff for half the buildings, eucn tmm as two arbitrators should determine before a certain day : the arbitrators not having been appointed under the bond, the parties afterwards agreed verbally to refer the valuation to arbitrators, who made an award of the value. Held, That the referees were the agents of the parties to settle the value, and that the plaintiff might recover the amount awarded by them, as an account stated. Coram v. Wheten, 4 All, 293. 10— Concurrent Acts— When not con- sidered such. An award directed that the defendant should pay the plaintiff r ->f money on a certain day, and th and 10 Wm. 3, c. 15, does not apply to references under the Act of Assembly. It is not necessary that a verdict should be taken pro forma to authorize an award to be entered on the postea. Quxre — Whether judgment can be signed on the postea even in term, until the ex- piration of twenty days after filing the award. See Brown v. Harding, 3 All. 246. 14— ITotioe of acljoumed meeting. Necessary to give notice of an adjourned meeting when the parties are not present at the adjournment. Qumre — Whether notice to the counsel in a cause which is referred is notice to the party. See Brown v. Gurrier, 2 All. 124. AWARD. certain day : cen appointed es afterwards 3 valuation to award of the brecs were the ;tle the value, it recover the as an account , 4 All. 293. len not con> the defendant ^f money ,uch pay- fendant should d the plaintiff reels of sleep- old, That they nd in nn action ; was not neces- ver a readiness assell X.Wilson, jerformancc of uiust be stated •i\ allegation is ae V. Burgoyne, :tion on bond ird (except ) muy be the arbi- award, though on the face of Uickney, 1 All. lict— Time of n. 3, c. 15, does der the Act of rdict should be ■ize an award to ARREST. ARREST. n can be signed , until the ex- after filing the 'arding, 3 All. meeting. >f an adjourned are not present tere — Whether oauBO which is ty. SeeJBroun 16— Want of direction m to entering up award. Reference to arbitration under Judges order. Costs to abide event; no direc- tion aa to how award to be entered ; no judgment could be entered. See Costs 51. ARBITRATORS. See Arbitration. ARREST. 1— Power to Arrest. The House of Assembly in this Province has not the power to arrest and imprison the publisher of a libel on a Member of the House, touching his conduct and pro- ceedings in the House. Hill v. ^yeUon, 3 Ktrr 1. The publishing of a newspaper containing libellous reflections on Members of tb* House of Assembly, is not such a breach of the privileges of the Assembly as will justify the arrest of the publisher, and subsequent commitment of him to prison, under the Speaker's warrant, made pur- suant to the order of the House. Ibid No power of arresting, adjudicating, and punishing by imprisonment in such cases belonged to the House of Assembly in Nova Scotia, under the grant made of a General Assembly by King George the Second; nor appertained to the Assembly as a legal or necessary incident to a Colo- nial Legislature; nor has been obtained by usage and acquiescence; and conse- quently no such power is vested in the Assembly in New Brunswick from the circumstance of that Province having been formerly included within the bounds of Nova Scotia, neither was it obtained by the grant of a separate Legislature to New Brunswick in 1784. Ibid. Colonial Assemblies ^e not vested with all the rights and powers of the Houses of Parliament, but such only aa are essen- tial to the discharge of their legiruative functions. Ibid. Qutere, Whether the causing a newspaper, containing libellous publications on Mem- bers, to be sent into the House of Assem- bly, and distributed among the Members while engaged in their public duties, is such a contempt in the face of the Honse as would justify the arrest of the offender under the Speaker's warrant, and commit- ting him to priaon ? An arrest and im- priionment cannot be juatifled on any such ground, when it has not been charg- ed as a distinct offence, and mentioned in the warrant of commitment. Hill v. Weh don, 3 Kerr 1, Where an action of trespass has been brought against the Speaker of the House of As- sembly for an arrest and imprisonment made under his warrant, if he claims ez- euiptiou from personal liability in conse- quence of having acted under the order of the House, when the House had no authority to make the order, he should specially traverse with an absque hf)c. If he justify generally, that question does nut arise. Ibid. Qiutre, Whether the order of the House of Assembly will excuse or justify the Speaker in issuing a warrant, which can- not be legally executed by the officer to whom it is directed. Ilid. 2— FriTilege from. A defendant is not exempt from arrest because he has been before arrested and discharged on ground ofprivilege. Gil- bert V. McLauchlan, 2 Kerr 633. 3 — The privilege of members of the House of AsHflmbly from arrest during the session is for forty days, befwe and after the pro- rogation or dissolution. Seo Retmie y. Rankin, 1 All. 820. A member of House of Assembly must be sued by bill and summons. Ibid. 4-Sheriff. Sheriffs being required by rule of Court (East T. 2, Geo. 3,) to attend Court every term, are privileged fVom arrest when they come to Fredericton during term, and the particular cause of their so coming will not be enquired into. Sooft v. Clarke, Trin. T. 1831. 6— Witnew— Waiver. Application to discharge defendant on the ground of being privileged *» a wit- ness, dismissed with costs, it appearing that he had waived his privilege at the time the arrest took place. Gillespie v. Fogartjf, 1 Kerr 162. e— Witness. A witness attending bona fide before a sheriff's jury, in proceedings under a writ de proprietate probanda, is privileged from arrest; and if he be arrested rede- undo, and give a bail bond, the Court will order the bail bond to be cancelled. Bwht y. Sutherlatid. 1 Kerr 16$. 84 ARREST. ARREST. 7— Diacharge of defendant by one of several plaintifBi. If a defendaot in custody on an execu- tion, is discharged by one of several plain- tiffs, he cannot be again arrested at the instance of a co-plaintiff. Amfriws v. Clarke, Ber. 32. 8— Voluntarily allowing defendant to go at large. If a judgment debtor arrested on a ca. sa. is Toluntarily allowed by the creditor to go at large, he cannot be arrested again on a new ca. sa., and if he should be so arrested, and give bail for the limits, these facts will be a good defence to an action ou the limit bond for an escape. See An- drews V. Dowdall, (^Bond 12.) 9— Arrest of judgment debtor— Use of oriminal process. Plaintiff recovered a verdict against de- fendant, but before judgment was signed, he left the Province and went to Nova Scotia. Plaintiff aft«rwards made com- plaint before a Justice of the Peace that the defendant had committed perjury in giving evidence on the action in which the verdict was obtained ; upon which a warrant waa issued against him, and deliv- ered to a constable, who took it to Nov;; Sootia, and it having been indorsed there by a Justice of the Peace, the defendant was arrested on it, and brought into this Province, and taken before a Justice of the Peace who discharged him ; he was then arrested on un execution issued on the plaintiff's judgment. Hold, That unless the plaintiff had fraudulently made use of the criminal process for the pur- ftose of bringing the defendant within the urisdiction of this Court, the defendant was not privileged from arrest on the exe- cution; and this being denied by the pluintiff, the Court refused to discharge the defendant from custody. Ouiton v. Hewson, Mich. T. 186(5. 10— Affidavit for order to hold to bail—Insuffloiency of— Applica- tion to Court pending applica- tion to Judge. An affidavit to hold to bail stated — that certain goods were shipped at Liverpool on board a certain vessel, of which the defendant was master, to be brought to St. John ; that the defendant signed a bill of lading to deliver the said goods to the plaintiff at St. John ; that the vessel ar- rived at St. John with only n part of the goods on board ; that the doleudant in- formed th« plaintiff that he had sold cer- tain goods (describing them) belonging to the plaintiff, of the value, etc. Held, That this affidavit disclosed no cause of action; that it was consistent with the statements in it, that the sale of the goods by the master of the vessel was justifiable ; and therefore that an order for bail should not have been made. Nevins v. Co/l. Wl. T. 1871. Where a defendant has applied to a Judge at Chambers to set aside an arrest, on the ground that there is no ac etiam clause in the writ, he may afterwards, and while that application is ponding, apply to the Court to rescind a Judge's order for bail in the case, on the ground that the affida- vit to hold to bail is defective. (Fisher J., dissentiente.') Ibid. 11— Arrest without warrant. To justify a private individual in arresting a person on a charge of felony, without a warrant, he must not only make out a rea- sonable ground of suspicion against such person, but must also prove that a felony has been committed. Murphy v. EilU, Eoft T. 1871. 12— Bankrupt. A person resident in this Province who has been declared a bankrupt in England un- der the English Bankruptcy Act, and who has been afterwards arrested here for a debt incurred in this Province, is not enti- tled to have the bail bond which he has cDt«rcd into upon such arrest given up and cancelled, upon affidavit that he was on his way to England tn surrender himself to the Commissioners at a day appointed by them when the arrest took place. The Mayor &c. of St. John v. Lockwood, 2 Kerr 9. 13 — A defendant who was in custody on execution u* the suit of the plaintiff at the time of the Bankruptcy Act fi Vic. o. 43, coming into operation, and who has since been declared a bankrupt under that Acti and duly surrendered, is entitled to his discharge from custody under the twenty-fourth section. Reynohh v. Han- ford, 2 Kerr 114. 14 — A certificate under the present English Bankrupt Act is a discharge of debt* in- curred in this Province, and may be so pleaded in the Provincial Courts; but Semble, The certificate cannot be pleaded generally aa in England, but the prooeod- Ingi on which it is founded must be set out. Jouett T. Lockwocd, 2 Ktrr 674. ASSESSMENT. ASSESSMENT. 35 belonging to etc. Held, no cau8e of >nt with the I of the goods 18 justifiable; )r bail should I V. Cnu, im. 1 to a Judge arrest, ou the mm clause in is, and while apply to the )rder for bail lat the aflida- I. (Fisher.!., il in arresting ny, without a ake out a rea- against such that a felony •phy V. EilU, vincowhohas 1 England un- Aot, and who d here fur u e, is not enti- irhich he has given up and It he wuH ou inder himself ay appointed took place. , Lockwooii, custody on plaintiff at \ot 6 Vic. 0. nd who has >t under that 8 entitled to under the oliis V. Ilan- nt English of debts in- uiay be so .Courts; but t be pleaded the prooeod- [nust be set Ktrr 674. m ""#. 16 Where the defendant was arrested for a debt due on a bond, and it appeared that after the debt was contracted he had be- come a bankrupt, and received his dis- charge under the "Bankruptey (Scot- land) Act of 1866," the Court ordered his discharge on his entering a common appearance. Gilbert v. McLean, 2 Hun 213. Action for Misnomer— Defective execution — Issuing of second execution before re- turn of first. See Trespass V. 8. Justification — Process regular. See Tres- pass V. 7. Arrest under execution from Justice's Court for excessive amount. See Execution IV. 10. Refusing to discharge debtor after payment of debt— Legal determination of suit or discharge by law must be shewn. See Action at Law IX. 1, 2. ARREST OF JUDGMENT. See Practice VI. ARTICLES. See Shipping Law. ASSAULT. See I'respass V., and Criminal Law. ASSESSMENT. I. Parties Liable for. Land Damaois. II. Prooeedinqb. SOHOOI. Ahsbssments. III. MlBOELLANBOUS. I. Partus Liablb for. 1 — Corporations are liable to be assessed under the Parish School Act 21 Vio. c. 9. Ex parte' The jV«io Brwniteiek and Ca- nada Railway and Land Co., 4 AU, S76. 2— Joint Stock Company —Saint John Suapenaion Bridge Co. The Saint John Suspension Bride Com- Sany is not rateable by the Rev. Stat. o. 3, B. 17. in the City of Saint John, be- cause it has an office there and the annual meetings for the election of offioera is held there. Em parte The Saint John Sv^tention Bridge Oompanjf, 8 AU. 190. If n Joint Stock Company owns real estate in several Parishes, it is rateable under the Rev. Stit. as a resident of that Parish in which its principal business is carried on, and ns a non-resident in the other Parishes. Ex parte Tlie Saint John Sutpension Bridge Company, 3 All. 190. 8— Parish— Wo poor. By the Act 3 Geo. 4, c. 25, all the an- nual expenses of the York County alms- house arc to be assessed on the several parishes mentioned in the Act, according to the number of poor each parish has in the house. Held, That a parish having no poor in the house could not be assessed at all. Rex v. Justices of York, C. Ms. 108. 4— Upon whom— owner of Land. An assessment made by commissioners of sewers, under 22 Vic. c. 53, s. 10, must be upon the owner of the land by name, and not upon the land itself. The Queen V. The Commissioners, dc, Germantown Lake, 1 Ilan. 343. 6— Bailway Company. The E. & N. A. Railway Co. purchased land upon which there was a steam mill; part of the land only was used for the pur- poses of the Railway. Held, That the mill not being a part of the land so used, wos not exempt from taxation by the Act 33 Vie. c. 46. Ex parte The E. ds N. American Railway Co., Mich, T. 1871. The words " real and personal property" in the first section of the Act are limited and explained by sec. 2. Ibid. e— Lieutenant Oovemor— Salary of. The official salary of the Lieutenant Goy- vernor of the Province is not liable to be assessed under the City Charter of Freder« ioton, 22 Vie. o. 8, as an income " derived fVom any trade, profession or calling, within the Province." Wilmot and Rit- chie J.J.diisentiente .- per Barker J., that the Lieutenant Governor is not an " inha- bitant" of the City within the meaning of the Act. Ex parte the Hon. A. 3. Gordon, Nil. T. 1864. 7— Inhabitant— Who not oonaidered auoh. PlaintiflT had a house and property in the parish of S. where he generally resided, and where ho was assessed as an inhabi- tant. He held the Government appoint- ment of Conmiissioner of Works, the office of whioh was kept in Frederioton, sad wu attended by him lometimes fbr a number 86 ASSESSMENT. ASSESSMENT. of days in Buooesaion without returning to his house in S. Held, That he was not an " inhabitant" of Fredericton, and (bat his being at the head of his depart- ment of Board of Worka was not " carry- ing on business" in Fredericton, which subjected him to be assessed under the Act 26 Vic. c. 35. Hatheway v. Cum- ming, Trin. T. 1864. 8— Non-resident. A non-resident carrying on business in a Parish, is liable to be assessed on his per- sonal estate under 1 Rev. Stat. c. 53, s. 19. Ex parte McLadd, Hil T. 1873. 8— Land Damages— Highways. Assessment, when and now made — ^War- rant — Commissioners — New application. See Highways 20. Damages — Highways. See Highways 23. 10— BaUnray— Damages— Assessment In assessing damages for land taken for railway purposes under the Act 28 Vie. 0. 12, the jury, besides the value of the land taken for the track, may give dam- ages for the inconvenience caused to the owner by the severance of one part of his farm from the other. Glazier v. Freder- icton Branch Railway Co., 2 Han. 3. 11— Subsequent damage. The fact that the plaintiff has been paid damages for an alteration of a course of a stream flowing through his land done by Railway Commissioners under the authority of the Act 19 Vic. o. 17, will not prevent him from recovering damages caused by the subsequent overflowing of hu land in consequence of the improper construction of the alteration. McLeod V. Commiiiionen E. & N. A. Railway, 1 Han. 674. U— Private oorenant as to compensa- tion. Where a company was tuthoriied by Act lo eater on private property, erect dams and reaervoirs, and overflow knd for the pur|>oae of obtaining a supply of water on making oompenaation to the owners oi the land, and in oaae they could not agree, the amount of oompennatiou to be assessed by a Jury in a manner directed by the Act, and the Company requiring to overflow knd, entered into a covenant with the owner to build a bridge, over the over- flowage, and keep it in repair while the overflowiog oontioued. Held, That the parties haviag i^eed upon the mode of •onpsoaatioa (he fUtutoiy r«nM4y by as- sessment did not apply. Ryan v. Lock- hart, East T. 1872. 13— Entering on land— Provisions for compensation— Necessary evidence before risdit to issue writ— Agent- Owner— Notices. See Joint Stock Company 16. Albert Mining Company. II. Proceidinos. On Default — Account — Affidavit. See Damages I '. Writ of Inquiry. See Damages Y. Limit Bond — Damages — Assessment. See Bond 3, 10, 15. Service of rule for assessing damages — De- lay in service. See Practice YI. 14. 1— Notice— Parish School Act— Amount. Where an assessment is made under the - ^rish School Act, the assessors must give notice thereof, in the same manner Js as in cases of assessment for County :<|| rates, under 1 Rev. Stat. cap. 63, sec. 12. W Ex parte Street, 1 Han. 107. i 2— Notice. > An assessment under the Act relating to sewers in the City of St. John, is not valid unless the notice required by the Rev. | Stat. c. 63, B. 12, has been given by tho assessors ; and Quttre, Whether such as- sessment can be made until the ezpira- ' tion of thirty days afler such notice given. Regina v. The Mayor of Saint John, 3 Alt. 361. An assessment which does not exceed the ,; sum ordered to be levied by more than 10 per cent, is not illegal. Jbid. 8— Calling Meeting — Difibrent objects. An api)Tica(ion to Trustees to divide a Parish into School districts, and to call a meeting of the inhabitants to determine upon an assessment under the Parish School Act, 21 Yic. c. 9, may be made at tho same time ; and if, on the division of ^';i tboparish, three or mote of the applicants ^ are found to be resident fireeholders in the ai district for which the assessment is re- quired, tho trustees may call tho meeting without any new application. Ex parte Yeati, 4 All. 381. A poll-tax may be levied under (h« Pariah Iksheol Ao(. Ibid. ASSESSMENT. ASSESSMENT. 3T in T. Lock' Isions for revidenoe r— Agent— ». Albert ivit. See iV. ment. See tapes — De- vi. 14. ,ot- e under the 3B8ora must me manner for County 53, sec. 12. . relating to is not valid y the Rev. ven by the ler such as- the expira- noh notice >r of Saint exceed the more than bid. at objeoti. to divide a nd to call a > determine the Pariah be made at division of applicants ilders in the imont is ro- ihe meeting Ex parte Um Pariah 4— Separate statements— Mixed assess- ment. A warrant directing an assesfnient for several purposes : as, for the poor ; for County contingencies; and for schools, may be sufficient — provided the amounts required for each object are separately stated. Hut there must be separate assess- ments fur each object, and if the whole are so blended together that this cannot be ascertained, the assessment is bad. Ex parte Mclnerney, Hil. T. 1873. If an assessment is ordered by the Sessions the warrant may be issued by the Clerk of the Peace after the Sessions have ad- journed. Ihid. 6— School assessment— Assessment list —Part defeotive— Certiorari. Where the assessments for schools, and for the County purposes were stated in separate columns in the assessment list, and an objection was made to the legality of the school assessment, a certiorari was granted to bring up that part of the assess- ment only, Exparte Maker, Hil. T. 1873. e— Common School Act- Treasurer- Bond. It will not invalidate an assessment made under "The Common Schools' Act 1871," 8. 12, that the County Treasurer has not given a bond, as directed by the Act, to account for the monev paid to him as the County School Fund — that part of the Act being directory only. Exparte Ray- mond, Mich T. 1872. 7— General Assessment— Severance- Districts. A County assessment in aid of Schools, under the 12th sec. of "The Common Schools' Act 1871," need not bo separate from the general County assessment, pro- vided the several amounts are distinguish- able, nor is it necessary, in order to sup- Sort such an assessment, to shew any ivision of School districts. Exparte Raymond, Hil. T. 1873. 8— Common School Act— School purposes— Kotifying Council of amount required. By Act 22 Vic. o. 37, the Mayor, etc., of St. John, w«'re authoriied " on or before the Ist \;iril in each year," to assess the City for certain purposes. By "The Common Schools' Act 1871," s. 58, the Board of Trustees was authorised tu de- termine annually the amount reauirodfor the support and maintainanoe or Schools, etc., in the District, and " previous to the order for MSMsment for genoral Oity pur- poses," notify the Common Council of the amount required, and the Council was to cause the same to be levied and collected at the time of levying and collecting other City taxes. Held, 'fhat the Act was im- perative as to the time of notifying the Common Council of the amount required for School purposes; and therefore, where the general City assessment was ordered on the 5th March, but tJie Board of Trus- tees did not notify the Council of the amount required for Schools till the 25th April, an assessment made for the latter purpose was bad. Ex parte Carvlll, Hil. T. 1873. 8— School Assessment — ICotioe — Time —Amount. A School assessment under the Act 21 Vic. c. 9, s. 15, is bad if thirty days have not elapsed between the publication of notice of the assessment, and the delivery of the warrant to the collector, according to 1 Rev. Stat. c. 53, s. 12. Also, if the amount ordered for assessing and collect- ing exceeds 15 per cent, on the assessment. Regina v. Jardine, Mich. T. 1863. 10— Corporation —Against whom— Stock— Actual value. An assessment against a Joint Stock Cor- poration must be made against the Presi- dent or Manager of the Company. Ex parte The Bank of New Brunswick, Hil. T. 1873. Under the Act 22 Vic. c. 37, s. 12, the as- sessment should be made upon the actual value, and not upon the par value of the Stock of an incorporated Company. Ihid III. MlBCILIiANKOUS. See Joint Stock Company. 1— Amount of assessment. An assessment which does not exceed the sum ordered to be levied by 10 per cent, is not illegal. See Regina v. Mayor of St. John, 3 All. 361. 2 — An assessment for poll tax, if not fixed by a particular statute, must bo one^siehth of the amount ordered to be assessed ac- cording to 1 Rot. Stat. c. 53, s. 11. Ex parte Sharkey, Mich. T. 1872. 3— Certiorari to remove— Time of ap- plication. An application for a certiorari to remove an assessment, should be made promptly. Where a party had notice of an assess- ment in Dsotmbsr, sad his property iris 38 ASSESSMENT. ASSESSMENT. Bold under execution for non-poyment early in February, an application made in Easter term for a certiorari to remove the proceedings was refused, though the assessment appeared to have been impro- perly made. £xparteGerow,4All.269. 4— General Sessions— Power to order. The General Sessions has no power to order an assessment as for County contin- gencies, to meet the costs incurred by a party in making, and by the assessors in resisting an application to quash an assess- ment under the Parish School Act. Re- gina v. Assessors of King's, 1 Ilan. 520. 6— Summoning Freeholders— Private road— Justices issuing warrant- Presence pt. The two Justices who issue the warrant for summoning freeholders to determine on the necessity of a private road, under the Highway Act 50 Geo. 3, c. 6, must be present at the assessment of damages by such rreeholders. Pitt v. Lawson and others, C. Ms. 57. 6— Commissioners acts not judicial— Interest. The Acts of Commissioners of Sewers ap- pointed under the Act 22 Vic. c. 53, are not judicial acts ; therefore it is no objec- tion to their proceedings to assess the pro- prietors of land for the purposes of the Act, that they arc interested as owners of land in the district nssosscd. Ritchie J. dissentiente. Ex parte Calhoun, Ifil. T. 1863. 7— Contractor voting— Interest. K., u conimitjHioner of sowers for the Ger- mantown Lake District, bucunie contrnc- tor for the execution of certain work exe- cuted under their direction, and after- wards sat and voted with the other com- missioners, when they decided that the work had boon satisfactorily performed, and ordered an assessment on the land owners to pay for it. Held, That the as- sessment was bad. The Queen v. The Commissioners of Germantown Lake, 1 Han. 343. 8— Assessment on person who had con* veyed land assessed— Change by Commissioners of name— Certi- orari refused. An assesament was made upon A, as a proprietor of land in the district, it after- wards appearing that he had conveyed the land to B, the oommissionors struck out A'b name and inserted B's ; the Court in the szeroiu dt its diioretion reAued to grant a certiorari to buy up the assess* ment on B's application. Ex parte Cal- houn, mi. T. 1863. As the insertion of B's name did not increase the assessment on any other proprietor of land in the district, it was held to be no ground for quashing the assessment on the application of such other proprietors. Ibid. 0— BefUsal of warrant. , An application for a warrant to summon a jury to assess the damages to the owner of land through which the Saint John Water Compaay desired to lay pipes, etc., under the authority of the Act 2 Wm. 4, . c. 26, was refused, where it was not shewn that the Company deemed it absolutely necessary to lay down pipes through the land. Ex parte The Saint John Water Company, Ber. 128. 10 — Commissioners — Liability — Neg- lectinac to assess. Qusere, Whether Commissioners of Sew- ers would be liable to an action if they neglected to make assessment required by Act of Assembly. See Peck v. Robinson, 2 Kerr 687. 11— Power of Commissioners— Special Act. Under the powers given to the Commis- sioners of Sowers by the Act 22 Vic. o. 53, and 1 Kev. Stnt. c. 67, to nsschs for all expenses of draining, dykeing, etc., they may assess for the expense of pur- chasing a mill, erecting a di\m across a river, making surveys and for interest on money borrowed — (these being necessary for carrying out the objects of the Act') — and for their own fees. Ex parte Cal- houn, nil. T. 1863. 12— Error- Intention to correct— Cer« tiorarL In showing cause against a rule for certi- orari to remove an assessment, the assess- ors cannot show that the matter objected to, is an error which they intended to correct, under tho 31st see. of 1 Ilev. Stat. c. 53, unless the error has been corrected, the certiorari will issue. Ex parte Mc- Garr, Jfil. T. 1873. 13— Jury of Inquiry— Ifo return of paneL Shorift' not returning any panel on the writ ; damages assessed by a jury sum- moned to try issues at tho assises no good ground for setting aside sHeument. See IVhMUr ▼. Gove, 1 Kerr 580. ASSIGNEE. ASSlGiVMENT. 39 p the assess- ^x parte Cat- 1 not increase proprietor of leld to be no Bsment on the proprietors. t to summon I to the owner I Saint John ay pipes, etc., Let 2 Wm. 4, ras not shown it absolutely \ through the I John Water Ulty-Neg- jners of Sow- ction if they t required by V. Kobinton, rs— Special the Gowmis- ct 22 Vic. 0. to nssctis for ylcoing, etc., ense of pur- am across a )r interest on ng necessary f the Act^— z parte Cat- rreot— Oer- •ule for certi- it, the assess- btor objected intended to 1 llev. Stat, an corrected, X parte Mc- itumof and on the a jury aum- liiea no good Mm«nt. See ). 14— Rector— Rents of Glebe— Liability to Assessment. Under the Act 26 Vic. c. 35, which ex- empts from taxation the income of the inhabitants of Fredericton, derived from real or personal property, the Hector of the Parish is not liable to be assessed upon the income derived from the rents of his Glebe. Lee v. Ma^or of Freder- icton, East. T. 1873. Promissory note given for amount of assess- ment. See Bills and Notes I. 9. Interest — Instalment — Calls. Interest not allowed on assessment where Act silent as to. See Interest 2. Assessment of Damages. See Bond. Judgment by default — Damages — Inquiry — Venire — Setting aside Assessment. See Practice VI. ASSETS. See Executors and Administrators. ASSIGNEE. Of Judgment — Attorney claiming as such. See Attorney III. 7, 9. Of Bankrupt. See Bankrupt. Of Bail Bond — Executor of— Suing — Evi- dence. See Bond 1 .5 Of Limit Bond. See Bond 2. Of Covenant, binding Assignee. See Cove- nant 7. Rights of— Breach of Warranty. See Co- venant 4. Of Policy of Insurance — Consideration. See Pleading I. 39. Of Term — Deed — Project Evidence. See Landlord and Tenant VI. 2. Of License. Sen License 2, 3. Of Mortgage — Ejectment — Defence. See Mortgage 3. Of Replevin Bond — Deputy — Delivery. See Bond 18. Of Lease — Action by Assignee of n Lease against lessors on covenants to pay fur improvements, plaintiff entitled to inter- est on amount appr.iiscd from time it be- came payable, See Landlord and Ten- ant VI. 2. ASSIGNMENT. Recognition of — Third party. See Chose in Action. Acceptance of Rent — Recognition of Assig- nee. See Landlord and Tenant VI. 2. By Partner — Assent of Co-partner. See Deed IV. I. Offer to assign — Bona fides — Notice. See Insolvent Debtor 5. In Trust — Creditors. See Insolvent Dsbt9r 5. Of License to cut timber. See License. By parol — To dig minerals. See License. Of Land, without debt. See Mortgage 1 , 2. Of Premises — Mortgage debt. See Mort- gage 1, 2. Of Mortgage — Vesting of Power of Sale — Rights. See Mortgage 13. Of Deed — Creditors not parties to — Bona fide. See Deed ITT. 1. Trustee, also Creditor. See Deed III. 4. 1— Of Ooods— Defeating Execution— Consideration— Delivery and Ao- oejptance— Evidence. An assignment of poods is not necessarily void, though the intent and effect of it may bo to defeat an execution, if the as- signment be made hona fide for the bene- fit of other particular creditors, and there be a delivery and acceptance of such goods under the assignment before the execution is delivered to the Sheriff. QuKre, What acta will constitute a deliv- ery and acceptance ? Kinnear v. White, 2 Kerr 235. It is a good consideration for such assign- ment, that the assignees were liable as se- curity for certain existing debts of the assignors, and the goods were to be ap- propriated to the payment of those debts. Proof of tlie actual payment of the debts is not essential. Ihld. Whether the consideration and transfer bo real or fictitious, and whether there have been an actual delivery and acceptance of the goods, are questions for the jury, on the whole evidence. Ibid. Where part of thu alleged consideration was interest money duu on a bond to a credi- tor in Novn Svotiu, and n bill of exchange drawn by him on the plaintiff was given in evidence. Held, That a coutemporu- Duuiu letter written by the creditor w^icl\ 40 ASSIGNMENT. ASSIGNMENT. spsfiified that tho bill was drawn for such interest was admissible in evidence. Jbid. 2— Previous Assignment— Ezeoution— Bona fides. In trespass against the defendant, Sheriff of Northumberland, for taking goods un- der an execution against P. as his pro- perty, which the plaintiff claimed under a previous assignment made by P. to him in payment of a debt ; the question whe- ther the transaction was honafide or not being fairly left to the jury, who found for the plaintiff, the Court refused to dis- turb the verdict. Doak v. Johnston, 2 Kerr 319. Declarations of the son of P., in whose pos- session the plaintiff had left the goods, as to the circumstinces of tho transfer, were held to have been properly rejected by the Judge at the trial ; though the fact of such possession was proper for the con- sideration of the jury. Ibid. The fact that the assignment was made to the plaintiff with intent to avoid an execution, docs not in point of law make it void, if it be bona fide, and for a valid consideration. Ibid. a~Of Lease— Privity of Estate— Cove- nant— Beversion— Action of Cove- nant. Action of covenant by assignee of lessee against lessor on a lease made of land for eleven years, from Ist February 1830, on the usual Provincial building covenant, for not appointing an appraiser to value the buildings after the expiration of tho term, and notice to tlio defendant on the 3rd May 1843, that the plaintiff had chosen an appraiser on his part, and re- quest then made to the defendant to ap- point an appraiser on his part. Plea, that the defendant at and from the end of the term, viz. 1st February 1841, was willing and ready to appoint an appraiser until the Ist May 1841, when the defend- ant granted, bargained and sold all his right, title and interest in the said land and tho buildings and improvements thereon to U and C, after which the said B and C became and arc the only persons capable in law to perform the covenants, whereof the plaintiff had notice ; and that IJ and C had ever since been ready and willing to perform tho covenant, but that the plaintiff had not applied to them to appoint an nppraiHer. Held, Had on de- murrer, tlicro being nothing on tho record to ihew any privity of «»tut^ ^t th« tiwie of the assignment, or that the asBignment was of a reversionary and not a possessory estate, or that tho plaintiff remained in the possession of the demised premises, or that B and G were liable to the perform- ance of the covenant. Ansley v. Peters, 2 Kerr 593. Semble, The lessor would not be discharged from liability on his personal covenant by assignment of the reversion, although where he assigns during the term, and gives notice thereof to the lessee, applica- tion should be made to the assignee to appoint an appraiser. Ansku v. I'eters, 2 Kerr 593. The lessor by a bargain and sale of the land after the expiration of the term, does not incapacitate himself from the perform- ance of the covenant, as he may still pay the appraised value ; if he were incapaci- tated, the bargain and sale after tho term and before appraisement would be a breach of the covenant. Ibid. 4— By Deed— Property passing by. The defendant had in his possession aa a pond keeper, timber belonging to H. who while it was in the defendant's possession, made a general assignment of his property bydecd to the plaintiff. Held, That this was an assignment of the property in the timber, and not merely of a chose in ac- tion, and that the plaintiff, after tender- ing the amount of the defendant's lien on the timber, might maintain trover against him. Jack v. Enf/les, 2 All. 95. 5— Polioy of insurance— Invalid assign- ment. Plaintiff, whose stock of goods in his store was insured by defendants by a polioy under seal, sold them to A, taxing notes in payment. Subsequently, at the office of defendants' agent, and by his consent, ho indorsed on the policy that he thereby assigned it to A, having sold him the goods. This assignment was entered on defendants' books, but not made under seal, Jind A was not informed of it. Tho first note being unpaid, plaintiff by con- sent of A, took back the goods, and pos- session of the store. They were after- wards consumed by fire. Ileld, That the assignment on tho policy was invalid, and that plaintiff could recover under the po- licy for tho loss. Weldiin, J., dissentiente; Fisher, J., dubifantt;. Vruzicr v. The Phoenix Inmrance Co., 2 Han. 200. Of Lease — Exceptions — Obatructing Light. See Action on the CaiQ (V. 4, 6- 1 8- t P i 8 Of i 1 II 1 III 4* ."•?,' ASSUMPSIT. ASSUMPSIT. 41 6— Executor— Mortgage land of Testa- tor. Aa executor cannot assign the legal estate in land mortgaged in fee to his testator, unless the laud is devised to him. With- out such devise, his assignment will only operate as a transfer of the mortgage debt. An assignment of a mortgage by an exe- cutor is not admissible in evidence with- out proof of the probate. See Doe v. Hanson, 3 All. 427. 7— Of AdminiBtration Bond; 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 makes out a pri- ma 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. 8 — An assignment will not be refused, though the bond varies from the form given by the Act, — the variance being slight. Ibid. Of Replevin Bond. See Bond 21. ASSUMPSIT. 1. Generally. II. Parties. III. Money Counts. a Account Stated. h Money Had and Received. e Money Lent. d Quantum Meruit. e Indebitatus Assumpsit. / Goods Bargained and Sold. g Money Paid. IV. Miscellaneous. Generally. Action — By and against whom Maintain- able. See Action at Law IX. Right to Action. See Action at Law IV. For what Miaiatainable. See Action at Law X. Rescinding Contract. See Action at Law Y. Remedy — Suspension of. See Action at Law VI. Action before Expiration of Credit. See See Aotion at Law VII. Foreign Judgment — Assumpsit maintain- able upon. See Aotion at Law X. 6 Magistrate's Court — Judgment. See Action at Law X. Former Recovery. See Action at Law VIII. 1— Breach of Agreement. By agreement oetween the plaintiff and defendant, the latter undertook to manu- facture and deliver to the plaintiff by a certain time 200,000 feet of deals, and the plaintiff agreed to advance to the de- fendant twenty shillings per thousand feet for all the deals delivered, but not to advance more than j£50 over the quantity delivered ; that the plaintiff should dis- pose of the deals and account to the de- fendant for the proceeds, the gain or loss to be divided equally, and the defendant's portion of the proceeds to be deducted from his private account with the plain- tiff. The plaintiff advanced £200 to the defendant, who only delivered 74,000 feet of deals, which the defendant shipped to Scotland, where they remained unsold. Held, That the defendant was liable for breach of his agreement, and that the plaintiff's remedy was not suspended un- til the deals delivered were sold, but that he might recover the amount of the pri- vate account and the surplus advances as liquidated damages. Lock v. Purdon, 2 All. 83. Held abo. That any failure on the plaintiff's part in selling the deals did not affect the defendant's liability for breach of his agreement. Ibid. 2— Mortgaged debt— Settlement of Ao- oounu— Covenant existing. Defendant being indebted to plaintiff for supplies advanced to build a ship, and requiring further advances, mortgaged the ship to the plaintiff in September 1857, for £10,000, and covenanted to pay the amount due with interest in January 1868. In November 1857, the parties settled their accounts, when a balance of £9,749 was found to be due the plaintiff on the advances for which the mortgage was given. Held, That assumpsit could not be maintained for this balance. Jar- dine V. McCatdey, Trin. T. 1862. 8— Special averments— Failure in proof of— Recovery under Common Counts. The plaintiff and defendant entered into a contract, whereby the defendant agreed to supply the plaintiff with provisions, etc., at stated prices, for teams to be em- plojred by the plaintiff in hauline logs during the winter ; the logs to be driven 42 ASSUMPSIT. ASSUMPSIT. into the boom at B, ns early the ensuing spring as the freshet would permit; defen- dant to make payment for the logs, after deducting his account for supplies, etc., in three and six months after the logs were driven to the boom. The action was brought before the expiration of six months from the delivery of the logs, and the plaintifif had a general verdict on both the special and common counts. Held, That oaving failed to prove the averments in the special counts, the plaintiff could not sustain the verdict on the common counts, not only because the credit had not expired, but because the whole esti- mate of damages had been based upon the contract. Campbell v. Todd, 3 Kerr 171. Evidence under Common Counts. See Infra III. II. Parties. See Action at Law. Corporation — Seal — Agents' Authority — ifstoppel. See Corporation 4. Tenants in Common. See Action at Law. Parties — Rescission by. See Action at Law. Parties not in statu quo. See Infra 29. III. Money Counts. a — Account Stated. 1— Suffloionoy of aoknowledgpnent. Upon an agreement made by B to pur- chase from G a quantity of saw logs, which C had previously bought of A, B agreed to pay A £75 from the proceeds of the lumber when it got to market; some time afterwards, upon an application for payment, B said " he had chartered a vessel, and that A would have his pay, one half in a fortnight, and the other half in two or thee months." Hold, That A could not recover the £75 on the count for an account stated, although more than three months had elapsed be- fore bringing this action. Lee v. Howe, 1 Kerr. 669. 2 — ^The defendant having purchased from P a mill, together with a quantity of logs, which had been sold by the plaintiff to P, accepted an' order drawn by P on him in the plaintiff's favor for £75, tho price of the logs, payable when the deals, into which the logs were to be sawed, were got to market and the proceeds realized ; and some time after when the deals were at the market, the order being presented to him for payment, the defendant said he had chartered a vessel to take away the deals, and that he would pay tho plaintiff one half the amount of the order in two or three days, and the remainder in two or three months. Held, That the plaintiff was entitled to recover the £75 under the account stated. Lee v. Howe, 2 Kerr 546. 3 — An account containing items on both sides, and shewing a balance in favor of the plaintiff, was rendered by him to the defendant, who wrote upon the account a sum of money as a deduction from the balance claimed by the plaintiff. Held, That without the deduction there was no admission by the defendant, and that he had only admitted the balance of the ac- count after the deduction. Held also. That the plaintiff could not increase this balance by reference to a previous account rendered to him by the defendant, in which a much larger balance was admit- ted to be due than the plaintiff claimed in this suit, without showing that one ac- count referred to the other. Spurr v. Allisoti, 3 All. 464. 4 — An account containing debits and cred- its was presented by the plaintiff to the defendant, who admitted it to be correct, but refused to sign it, alleging that there might be other credits to which he was entitled, and for which he required time to consider. Held, That this did not prove an account stated. Harley v. Good- fellow, 1 Han. 335. 5 — When A delivered goods to B upon the understanding that B should deliver other goods in exchange, but subsequently A rendered an account to B of the same which B acknowledged to be correct and promis- ed to pay, A may recover therefor under an account stated, notwithstanding his bill of particulars gives the items as the ground of his demand. Grant v. Aiken & Shaw, Ber. 269. 0— Demand oonflned by partioulars. The plaintiff by his particulars confined his demand to damages for the breach of a special agreement which he failed to prove. Hold, That ho could not give evidence on the account stated of the aoknowledgment of a sum due indepen- 0- ASSUMPSIT. ASSUMPSIT. 43 sawed, were ieds realized ; he deals were ing presented sfondant said to take away juld pay the t of the order he remainder eld, That the over the £75 Lee V. ffowe, ems on both in favor of )y him to the the account a ion from the intiff. Held, there was no , and that he ice of the ac- Held also, increase this vious account lefcndaut, in :e was admit- intiff claimed ; that one ac- >r. Spurr v. lits and cred- aintiff to the to be correct, ig that there 'hich he wob oquired time this did not rley v. Good- B upon the deliver other sequently A e same which / and promis- erefor under standing his items as the mt V. Aiken rtioulars. ars confined le breach of he failed to lid not give ated of the lue indepen- dent of the special agreement, but con- nected with the transaction to which it related. Jackman v. Brown, Mich. T. 1831. 7— Bill of Ezohange admitted under aooount stated— Pleading. It'a'Bill of Exchange is drawn for balance of account acknowledged to be due to the plaintiff from the drawer, — who has no funds in the drawers' hands, — the plain- tiff may recover on the count upon the account stated, if in consequence of not iillcging the excuse for non-presentment, he is unable to recover upon the special count. Emerson v. Gardiner, 1 All. 451. 8 — The payee of a dishonored Bill of Ex- chanjie may recover the amount from the drawer in an action on the common counts, if no notice of dishonor has been given. James v. McLean, 3 Allen 164. e— Payee against maker— Evidence. In an action by the payee against the maker of a promissory note, although it is made payable at a particular place, yet it is admissible evidence under the common counts. Merritt v. Woods, Ber. 261. A promissory note may be given in evidence under Account Stated. See Steadman v. llolstead, 3 Kerr 335. Purchase money in Deed — Admission of See Estoppel I. 17. Stating Account by Referees — Agents of Parties — When: See Principal and Agent 16. 1 — A writing addressed to defendant, re- questing him to pay plaintiff £25, half cash and half goods, is not a Bill of Ex- change. After payment of part, balance cannot be recovered as on an account stated. See Bills and Notes I. 14. 11- - Aooeptanoes — Evidenoe — Suspen- sion of claim. The defendant being indebted to the plaintiff, gave him throe documents, in- tended to bo acceptances of the defendant ior $400 each, payable, with current r^te of oxchango on New York, in five, seven, and ten months from date respectively. Meld, That they amounted to a special agreement, by which the plaintiff under- took to suspend his claim for payment till the intended acceptances were duo ; but that after that time, he could sue on the orij^innl consideration, or, on an account stated, of which the acceptances were evi- dence. Stuart V. Kirk, Hil. T. 1861. h — Money Had and Received. By and against whom action maintainable. Stakehold — Horse race. See Action at Jjaw. Harbour Master — Holding over — Fees of Office. See Appointment of Officer 1. Ml— Attorney— Money colleoted— iJe- mand. The defendant, an attorney, gave the plaintiffs a receipt acknowledging to have received from them several promissory notes for collection, one of the plaintiffs at the same time by letter requesting the defendant to collect the notes. Held, 1. That an action for money had and re- ceived was properly brought in the name of both plaintiffs, though the notes were in favor of one of them only. Gilbert v. Palmer, 1 All. 455. 13 — A notice to an attorney demanding pay- ment of money received by him in hb professional capacity, signed by a person who was not shewn to have had any autho- rity to make the demand, and served by one who had no authority to receive the money, is not a sufficient demand to sup- port an action for money had and receiv- ed, though the person who signed the notice was afterwards the attorney in the suit. Robinson v. Paltner, 2 All. 223. 14— Legacy— Payment to Executor by party holding. H bequeathed to the plaintiff during her life, the profits of his stock and interest in the Saint Stephen's Bank, of which the bank had notice. After the death of H the bank declared a dividend on the stock, which was claimed by and paid to H's executor. Held, That in the absence of any agreement by the bank to hold the dividend for the plaintiff, an action for money had and received will not lie, and that payment to the executor dis- charged the bank. Sill v. The Saint Stephen'* Bank, 3 All. 145. IS— Master and servant— Earnings for other services. The plaintiff hired the defendant by the month to superintend certain work, and to devote the whole of his time to it: during this engagement, and without the plaintiff's knowledge, the defendant work- ed tor another person and received wages ; Held, [Ritchie, J. dissentiente'] That the plaintiff oould not maintnin an action for M ASSUMPSIT. ASSUMPSIT. money had and received against the de- fendant for 6uoh wages, and that the only remedy against him was an action for damages for breach of his contract. Held, per Ritchie, J. 1. That by the agreement, the time and labour of the defendant be- came the property of the plaintiff, and that the subsequent hiring by the defend- ant was a wrong which plaintiff might waive, and recover the proceeds of the labour in an action for money had and received. 2. That the plaintiff might elect to consider the defendant as his agent in such hiring, adopt his contract, and recover the proceeds as money paid to the plaintiff's use. Bearddi/ v. Vope- land, 3 All. 458. 16— Proceeds— Sale of Cargo. The plaintiff and one F, shipped on board defendant's vessel at Saint Stephen, a cargo of lumber about half of which was the separate property of the plaintiff, kept apart from the rest in the vessel. The lumber was to be carried to the West Indies, and there sold by the defendant on the separate account of the plaintiff and F, and separate bills of lading were given. It was proved that the cargo had been sold by the defendant, and he admitted that ho had received therefor 82,000. No ac- count of sales or ezpcnscs was in evidence. The jury having found a verdict for the plaintiff for £200, on the count for money had and received, a rule nisi for a new trial was refused; the Court considering that there waa sufficient evidence to sup- port the verdict, although the exact amount due the plaintiff did not appear. Benton v. Leeman, 2 Kerr 118. 17— Voluntary Payment— Mistake. The plaintiff being sued by the defendant, sent an agent with money to the plain- tiff's attorney to pay a certain joint note and costs, supposing it to be the subject of the action; the agent, surprised by the attorney presenting him with a separate note for nearly a similar sum, of a previous date, on signifying there must be some mistake about it, the attorney told him that there would bo no further costs of suit for thirty days ; but the agent sup- posing the note shewn him the result of a settlement of the first note, and that there had been a mistake in the dates, paid the separate note with costs, ?ftcr which the plaintiff was sued on the joiut note fur the money contained in the first note, and paid it, and brought this action to recover back the money paid on the first note ; and shewed circumstances in evi- dence, upon which the jury found that the first note was paid without considera- tion, or had been fraudulently detained by the defendant, and was paid by the plaintiff's agent under a mistake of facts. Held, That the plaintiff could not recover back the money paid on the first note, as he should have defended the first action. Johnson v. Brown, 3 Kerr 264. 18— Public officer- EzcessiTe demand. If timber is seized for having been cut on Crown land without license, and the Gov- ernment instead of proceeding to condem- nation, authorize the seizing officer to re- lease it upon payment of a certain sum per ton, which is paid by the claimant un- der protest; he cannot maintain an action for money had and received against the officer, because the amount demanded by him exceeds the rate allowed by law on granting licenses to cut timber. Titbits V. Allan, 3 Kerr 280. 10— Purchaser— Deposit. A purchaser of land has a right to a title free from incumbrances, and if the vendor is uuablo to give such a title the purcha- ser may recover back his deposit. Scott v. Gamett, 2 All. 624. 20— Appropriation of Money. S. being indebted to the plaintiff, and having money in the defendant's hands, directed him to pay tho plaintiff's debt, which the defendant agreed to do, tho amount having been ascertained and known by tho defendant. Held, That this was an appropriation of the money by S. and a receipt of it by the defend- ant to the plaintiff's use, for which he could maintain an action for money hud and received. Anderson v. Allison, 3 All. 173. 21 — A. having consigned goods to the defendants to sell, drew a bill for the amount in favour of B. ; the defendants refused to accept the bill till the goods were sold, and it was protested for non- acccptnnce. Soon after drawing tho bill, A. assigned his property to the plaintiff; who claimed the proceeds of tho goods from the defendants, but afterwards wrote them that he found the amount had been appropriated by A. to pay a debt to ]{., and that he (plaintiff) hud nothing to do with it. Held— 1. That the plaintiff had renounced his claim, and could not ru> '% 24- ASSUMPSIT. ASSUMPSIT. 4ft id on the first iBces in evi- f found that tut considera- itlj detained paid by the itake of fuct«. d not recover first note, as first action. !64. re demand. ; been cut un and the (iov- g to condeui- oflicer to re- certain sum claimant un- ain an action against the Icmanded by d by law on »er. Tibhits ght to a title if the vendor the purcha- posit. Scott laintifi^, and ant's hands, :ntifi''8 debt, to do, the rtaincd and Held, That ' the money the dcfend- tr which he money had Alliwn, ii ods to the bill for the defendants the goods ;cd for non- ring the bill, he plaiutiiF, the goods wards wrote nt had been debt U) B., >thing to do plaintiif had >uld not re- cover the proceeds. 2. That his subse- quently claiming the goods in consequence of the defendants' refusal to accept the draft, did not destroy the effect of his previous admission. Cothren v. Kinnear, 4 AU. 251. 22— Contract rescinded. The defendant agreed to deliver lumber to the plaintiff at a certain time, and the plaintiff agreed to make a payment in ad- I vance, and to pay the balance on delivery I of the lumber ; neither party was ready to ^ perform the contract on the day specified I for the delivery of the lumber. Held, I That the contract was rescinded, and that ^ the plaintiff could recover the advances l under the count for money had and re- I ceived. McCann v. Kirlin, 3 All. 345. |23— Contract— Failure in performance. I Where money has been received by a I manufacturing corporation under a parol V agreement to make payment for the same '!} in articles of their manufacture, which ;^ they have lulled to perform ; an action of assumpsit lies to recover back the money. Diamond v. TJie Saint George Lime Company, 2 Kerr 537. ; 24— Purchase money— No fraud. f Where land has been sold and the deed I executed, and there is no fraud, the pur- < chaser cannot recover back the purchase ^ money in an action for money had and ^' received, although he may have been /, evicted by title paramount. The rule of ';! Caveat emptor applies, and he should have protected himself by covenants. Robinson v. James, Hil. T. 1832. te— Tenants in common— For share of Property sold with consent. ; An action for money had and received ; will lie by one tenant in common against j his co-tenant for a moiety of the price of ^' the common property sold by the latter I with the consent of the former. Shaw v. ' Grant, Ber. 110. 86— Waiver of Tort— Sale of whole Pro- perty without consent. If one tenant in common of property, sells the whole, without authority from his co- tenant, the latter may waive the tort and recover his share of the price in an action i for money had and received. Boulc v. I Taylor, Ber. 201. ^27— Bents and Profits. !| One tenant in common cannot maintain i an action for money had and received against his co-tenant for reoeiving more than his share of the rents and profits of the joint property, unless there is an ac- count settled and balanced agreed upon, even though the defendant may have acted as bailiff of the other co-tenants in receiving the rents. Frost el al v. Di»- brow, 1 Han. 73. 28 Infant tenant in common— Dispu- ted account- Balance not agreed to. Defendant being a tenant in common with the plaintiffs who were infants, rendered in an account in which he acknowledged a certain sum to be duo from them to the plaintiffs, as their share of the rents of the joint property which ho had received, the plaintiffs' guardian disputed the cor* rectness of the account, and claimed a much larger sum from the defendant. Held,. .In an action for money had and received, that such balance not having been agreed to, the plaintiffs wore not entitled to retain a verdict for that amount. Ibid. 29 -Parties not in statu quo. The defendant having sold tortain real property to the plaintiffs, and received their acceptance for the payment of it, procured an assignment of a mortgage on the property to bo made and delivered to the plaintiffs, and further agreed that if one L did not give a deed of the promises, the defendant would proceed against the property either by foreclosure or under the Absconding Debtors Act, so that one of the plaintiffs should receive a clear title to the property; which not being done, nor the assignment registered, the plaintiffs tendered back the assignment, demanded the purchase money, and brought an action for the recovery of it. Held, That there being no reassignment of the mortgage by the plaintiffs, nor an acceptance thereof, the parties wore not in statu quo, and the action therefore was not sustainable. Pingrce v. Watson, 3 Kerr 261. 30 -Beceipt— Promise to account. A receipt given by the defendant to the plaintiff for certain orders, (stating the names of the persons and the amount duo from each) " to be accounted in set- tlement," is not in itsulf sufficient to support an action for money had and re- ceived. Lve V. Tre/ethin, J/il. T. 1834. 31— Agreement to sell timber— Sale ne- cessary. Where timber was delivered to the de- fendant on uu agreemeDt that ho ^boul^ 46 ASSUMPSIT. ASSUMPSIT. sell it and pay a certain part of the proceeds to the plaintiffs, an action for money had and received will not lie unless the timber has been sold. Scribner t. Jietts, HU. T. 1833. 32— Amount paid on Ezeoution— Land not liable to seizure. Defendant recovered judgment against the executors of S. for a debt due from their testator, on which- execution was issued to levy ile bom's testatoris, and the real estate of S. sold by the Sheriff, and purchased by the plaintiff, who went into posBes.sion : the heirs of S. afterwards ejected the plaintiff — the real estate not being liable to seizure under the execu- tion. Held, That the plaintiff could not recover from the defendant the amount paid to the Sheriff for the land, and which he had paid oyer to the defendant under the execution. Rohimon v, Jarvh, HU. T. 1832. 33— Displacement of Officer- Fees of office. Where the Geraral Sessions of a County appointed a Harbour Master under the authority of an Act of Assembly which did not limit the tenure of the office, and afterwards displaced hiui without reason- able cause, and appointed another, the former may bring an action for money had and received to recover the fees of office received by the latter since his ap- pointment. Joplin v. J)(i lu'ihoii , Btrt. R. 308 34— Excessive demand by seizing offi- cer. Where timber was seized for having been cut on Crown laud without license, and the Government, instead of proceeding to condemnation, authorized the seizing of- ficer to release it on payment of a certain sum per ton, which was paid by the claimant under protest; he cannot main- tain an action fur money had and received against the officer, because the amount demanded by him exceeded the rate al- lowed by law on granting licenses to cut timber. TibhitU v. Allan, 3 Kerr 280. 36— Money appropriated. The master of a ship owned by the de- fondant having died, the defendant went on board, took charge of the captain's effects, and locked them up. Among them was a sum ol" money, which tlie mate cliiimed under an alleged sigreenient with the captain ibr £2 per montli, extra wa|;es; and ho took the money as pay- ment, — the defendant not trying to pre- vent him, but saying, he would let him have it if he could prove the bargain. Held, That prima facU the money was the private property of the captain, and that the defendant having taken possession of his effects, and afterwards allowed the mate to take the money, was liable to the representative of the captain for money had and received. Dorman v. Arulerson, Mich. T. 1861. 36— No actual receipt of money. Plaintiff employed defendant, an attorney, to collect a debt due to plaintiff from A : the defendant did not actually receive the money, but arranged the debt, by allow- ing the amount in the transfer of a mort- gage from A to B, a creditor of the plaintiff. Held, That as the defendant had not received money or money's worth, an action for money had and received would not lie. Neil v. Jack, HU. T. 1 862. 37— Sale of Ooods- Conversion -Wai- ver of tort. Defendant agreed to deliver deals to H. on board a ship sent for the purpose — half the cargo to be paid for in cash : the deals were shipped, and H's agent paid the defendant £20 on account. H. became bankrupt in England on the 10th June, and on the 17th June, information of the bankruptcy was received in this country by H's. agent, who refused to make any further payment to the defendant, but gave him the bill of lading of the cargo, which he sold for his own benefit. Held, That the portion of the cargo shipped be- fore the 10th June vested in the assignee of H, and that the sale thereof was a conversion for which the assignee might maintain trover, and that he might also waive the tort and bring an action for money had and received. Carrick v. Atkinson, East. T. 1863. 38— Fees of Witness— Criminal trial. The fees of a witness attending a criminal trial, certified by the presiding Judge under 1 Rev. Stat. c. 160, w 1 2, may be recovered in an action 'or nn' id and received, wher» 'f at ars that the (^ouu- iieient funds in hand MuUlijan v !ains- ty Treasure to pay the ford, 2 Ha. 39— No receipt of money on check. Defendant, at the recji st of the cashier, and for the benefit of a iiank, bid in cer- tain shares of the liank-stock, which were advertised for sale. The defendant •W 40- ASSUMPSIT. ASSUMPSIT. 47 b trying to pre- I would let hiu re the bargain, the money was ho captain, and taken possession ,rds allowed the ras liable to the tain for money an V. Anderson, money. int, an attorney, aintiff from A : lally receive the debt, by allow- ^nsfer of a mort- oreditor of the s the defendant money's worth, d and received k,Hil.T.\862. version— Wai- iver deals to H. e purpose — half cash : the deals agent paid the it. H. became the 10th June, brmation of the in this country ed to make any defendant, but. g of the cargo, 3enefit. Held, rgo shipped be- in the assignee thereof was a assignee might he might also an action for Carrick v. minal trial. ding a criminal esiding Judge 12, may be uii ^ lid and that the Oouu- funds i^* hand 'ains- i(jun on check. jf the cashier, nk, bid in cer- -stock, which The defondaut '''.'-■V, had no funds in the Bank, but the cash- ier told him he could draw a check for the amount of the purchase money, which he did, and the amount was paid by the cashier to the seller of the shares, which welb then transferred to the defendant, 'ihe purchase of its shares by the Bank was contrary to the charter. Defendant offered to transfer th^ shares to the Bank, but they refused to accept them, and repudiated the whole transaction — the cashier having in the meantime become a defaulter and absconded. Held, (Wet- more J. dissentiente) That no money hav- ing been received by the defendant on the check, and the money not having been paid for his use, but for the use and be- nefit of the plaintiffs, they could not recover the amount of the check. Com- ji mercial Bank v. Stephenson, HiL T. 1872. Corporation — Money received by Mayor — Offset. See Corporation 16. 40— Work and labour— Agreement to credit on rent. Plaintiff held land as tenant of defendant ; under a lease, and by an agreement out- ■1 side of the lease, he was to do some ditching on the land, which was to be allowed him as a payment on account of the rent. The ditching was done during the summer, and the defendant afterwards issued a distress warrant for half a year's rent, due on the 1st of May previously, which rent the plaintiff paid. Held, That the amount of the ditching was a matter entirely in the knowledge of the plaintiff, and as he had not given the de- fendant any account of it before the dis- tress issued, he had no means of credit- ing it on the rent; and that after sub- mitting to the distress, the plaintiff could not maintain an action to recover back the value of the ditching. Graham v. Gil- bert, mi. T. 1873. t — Money Lent. 41 — Plaintiff having agreed to lend money to D, he drew a note for the amount in the plaintiff's favor and sent it to the de- fendant, who received the money from the plaintiff and gave her the note — indors- ing his own name thereon. The plain- tiff swore that she lent the money on the security of the defendant, believing at the time she got the note, that it was the joint note of the defendant and 1). Held, That the defendant was liable in an action for money lent. 197. Doufflas V. Dubrow, 4 All. d — Quantum Meruit. 42— Contract — Deviations — Acquies- cence. The plaintiff contracted to build a bridge for the defendants according to a specifi- cation, for a certain price, but varied from the contract in many particulars, of which the defendants were aware, but made pay- ments to the plaintiff while the work was going on and very shortly before its com- pletion : the bridge was carried away by the ice, the spring after it was built. Held, That the defendants' conduct was evidence of acquiescence in the devia- tions, and that if the bridge was of any value, the plaintiff was entitled to recover on the common counts. Foshay v. Bax- ter, 1 All. 335. 43— Work and Labour. In an action of indebitatus as^mpsit, to recover payment for cutting wood and making fires for the House of Assembly , the plaintiff gave in evidence the contingent account of the Assembly, whereby it ap- peared that a sum of money had been allowed to the defendant for the plain- tiff's services. Held, That the plaintiff was not bound by the amount allowed, but might recover more on the quantum meruit. O'Brien v. V'etmore, 1 All. 594. 44— Master and Servant— Stage Driver. The plaintiff was employed as a driver by the proprietor of a stage coach. In an action against the master for wages, in which the plaintiff was proved to have received passage money from persons tra- velling by the stage, and which the de- fendant claimed to set-off against the de- mand for wages, the jury were directed that they might presume the plaintiff had paid over to nis master the money so re- ceived, in the ordinary course of his em- ployment. Held, That without some evidence that such was the course of deal- ing, the direction was wrong. McRae v. McBeath, 3 Kerr 446. Held also. That money given to the servant by the owner of a horse, which was led behind the stage on one of its trips, was a mere gratuity to the servant for his trouble in looking aft«r the horse, and that the master had no right to it. Ibid. 48 ASSUMPSIT. ASSUMPSIT. 46— BepaiTB of Ship— Agent— Liability, The aefendant, having advanced money to D to build a ship, became the register- ed owner of three-fourths of the ship aa a security for his advances, with an agree- ment that she should be sold in Eugland and his debt paid out of the proceeds of the sale. The ship being at Saint John, and requiring repairs to enable her to go to England, J) and the master of the ship employed the plaintiff to do the work, directing him to charge it to the ownors. 'J^he ship was sent to England and sold, and the defendant got the proceeds. Held, That he was liable for the repairs. Williams v. Wootl, 4 All. 3G2. Extra Work. See Contract 14. 46— Hiring Horse. A person hiring a horse to perform a journey is not liable for the value of the horse if he dies on the road, without the foult of the rider. Qu«n; Whether, in such 1^ case, the owner of the horse is entitled to recover on the quantum meruit for the time the defendant had the horse ? See Dickie v. Campbell, V. Ms. 44. 47— Ownership of Property— Liability. The ownership of property uloue will not render the owner liable to pay for work performed upon it without his request, though he receives it knowing that the work has been performed, llartlcy v. Fisher, 1 .1//. 45U. c — Indebitatus A.s8umi'sit. 48— Special Contract— Reoovery under common Counts. Indebitatus assumpsit to recover the price of a quantity of spruce logs. Written agreement. No further acts remaining to be done by the plaintiff. Held, That he could recover on the comv i.« counts. See Leslie V. Hanson, 1 Ifnn, 263. 40— Trees severed from freehold— Chattels- Recovery for, under common counts. Plaintiff, by a written agreement, sold to defendant tor £45, payable part that au- tumn and balance in one year, the logs on his and his son's land, with the right to cut, for five years. Defendant during tho following winter cut and hauled off all the trees suitable for lumber. In tho moan time, plaintiff convoyed to his bro- ther, who brought an action of Irespuss against defendant, for cutting on the land, and recovered damages. Hold, That tho plaintiff was entitled to recover tho amount, defendant having bound himself to pay on a certain day, and hav- ing got the logs: that the trees being severed, became chattels, and plaintiff's claim being merely a money demand, might be recovered on the (Amnion counts. Murray v. Gilbert, 1 Han. 545. /—Goods Babqaineu and Sold. SC-Mergisr- Set-OfT. Plaintiffs proved a demand of £41 against defendant for goods sold and ddiverod ; defendant proved a large demand agaiuiii tho plaintiffs, which ho promised to settle by his account for the goods, the amount of which was not ascertained at that time. Held, That the plaintiffs' demand was not merged in the defendant's, and might bo recovered on the common count, there being no notice of set-off. Cushimj v. Goddard, 3 All. 585. 61— Goods of Plaintiff — Execution against— Arrangement with Cre- ditor. Plaintiff sold defendant lumbei, part of which was afterwards levied ou under ex- ecution against the plaintiff, but was givcu up to the defendant by an arrangement with the judgment creditor, to which the plairtift" was no party. Held, That tho plaintiff (having a right to sell the lum- ber) was entitled to recover the price not- withstanding the defendant's arrange- ment with the judgment creditor. John- son V. Crocker, 4 All. 94. 62— Parties disabling themselves from performance of Contract— Rescis- sion. By agreement between the plaintiff and defendant, the pl'iintiff was to put up and enclose the frame of a house by a certain day, and tho defendant was to make the doors and window sashes out of the plain- tiff's lumber, finish the inside of tho house, and be paid part in money and part in goods ; the plaintiff furnished the lumber for the doors and saslies, which tho dc- ' fondant made and sold after the expira- tion of tho time for completing tho house. The plaintiff never put up the frame. Held, That as both parties had disabled themselves from performing it, the cou- tract was rescinded, and tho plaintiff could recover on tho quantum mrruit h goods delivered to tho defendant under the contract. Held also, That as the facl« were not disputed, tho roseitssion of the contract was properly decided Sy the Judge. McAuley v. Geddes, 4 All. 626 \-mBm ■fWBt 9— pHss- Wm I -'^B ^ ^i^B c( i^^B n P d^ '■b% ut ai cc .^ P' Ul %% of 1 at ; w' ■i P" Tl ASSUMPSIT. ASPORTAVIT. 49 having bound day, and hav- he trees being and plaintiflf's loney deiuand, the dSmnion rt, 1 Han. 545. » Sold. I of £41 against and ddiverod; demand agaiuH ■ouiised to settle )d8, the uuiount ■taincd at that Eiintiffs' demand lefeudant's, and ) common count, et-ofif. Cushimj — Execution mt with Ore- lumbei, part of ied ou under ex- iflf, but was given an arrangement tor, to which the Held, That the to sell the lum- ber the price not- idant's arrange- creditor. John- emselves from atract— RoBoiB- le pkintifif and ras to put up and )use by a certain was to make the out of the plain- side of the house, jnoy and part in ished the lumber which the do- illor the cxpira- leting the houac. up the frame, tcs had disabled ning it, the con- id the plaintiff nfum miTuif tnr defendant under That as the facts roHeinsion of the decided 'iy the dde$, 4 AU. 526 ■:S g — MoNE\ Paid. 58— Contpaot— Transfer— TTnflnlflhed work. D having a contract with the defendant to do work on a railway, transferred his contract to the plaintiflF at the defendant's request, on receiving a bonus of one penny per yard on the work remaining to be done. Plaintiff gave D his note for the amount, on the undertaking of the defend- ant that if the plaintiff was prevented from co>.»pleting the work, the defendant would pay the penny per yard for the amount unfinished. The plaintiff pertbrmed part of the work, and left the rest unfinished, at the defendant's request that he should work elsewhere. The plaintiff having paid the amount of the note to D — Held, That ho could recover it from the defend- ant, as money paid to his use. Hawkins V. McBcan, East. T. 1861. 64— Application of money. The defendant being indebted to P in the sum of 91124, requested the plaintiff to pay the amount for him. The plaintiff did not pay the money to P, but, having had denhngs with him, and having a de- mand against him for $624, placed the $11 24 to his (P's) credit, intending there- by to pay his demand of 8624. Part of the balance was paid to P and part was applied by tho plaintiff in payment of some liabilities of P, Tho defcudaut had no knowledge of P's indebtedness to the plaintiff, or of the mode in which the 81124 was applied. Held, That there was not a novation of tho original liability of tho defendant, and no extinguishment of tho debt due from tho defendant to P ; therefore the plaintiff could not recover against the defendant for money paid to his use. Per Ritchie, C. J. : That if P had agreed to extinguish his debt against the defendant, and tho defendant had notico of the arrangement between the plaintiff and P, and had assented thereto, tho action for money paid could have been miiintained. J'er Allen, J. : That if the plaintiff, with tho assent of P, had retain- ed tlie 8624, and paid P the balanco of tho 81124, he could have maintained tho aot'iin — such retainer being eciuivalont to a payment — and, in that case, no assent (if tho defendant was necessary, f/nrrin V. Ituhi'rtmn. Mi'rh. T ]H(U\. 7 IV. MiSCELLANIOUS. Partners — Liability. See Partnership 1. See Commissioner of Sewers. 66— Collector of Tazea- Bond given. Assumpsiton an accountstatcd lies against a collector of taxes for a balance admitted by him to be due to his principal, though he has given a bond to the principal to account for monies collected. The Mai/or Ie in Nova Scotia before a Judge of the Supreme Court there — Held, That the signature of the Judge must be verified by an affi- davit made here, in order to make tho demand under such power sufficient to found an attachment. Fraser v. Hard- ing, 2 Kerr 290. 17— Service of copy of Power of At- torney. An attachment for non-payment of costs will not bo granted, when the costs are demanded under a power of attorney, unless a copy thereof is served upon the party on whom the demand is made. Gilbert \. Cyr, Mich. T. .870. 18— Power of Attorney— Must be exe- cuted by party -Attorney. A power of attorney to demand costs must be executed by the party in tho suit to whom they are payable. The at- torney in the cause has no authority to give a power of attorney for that purpose. Robicheau v. Tximer, Trin. T. 1871. 19— Demand of Costs out of Province- Place of demand. A demand of costs in Nova Scotia ia suf- ficient to support an application for at- tachment fur uon-pavment. (Parker J., dubitante.) Tho place whore the de- mand was made should be stated in the Affidavit on which tho motion is made, and a rule nisi only granted (per Parker J). Regina v. Delaneif, Mich. T. 1864. 20— Time of Demand. The affidavit of the demand of money in order to obtain an attachment must state the day on which the demand w.as made. Campbell v. Todd, 1 All. 199. 21— Costs— Damand-By whom made. An attachment will not be granted for non-payment of costs, unless the demand is made by the party entitled to receive the costs, or his attorney in tho cause, or a person authorized under a letter of at- torney. Marsh v. Rose, C. Ms. 105. 22 -Consent rule— Costs taxed under. On motion for an attachment, for not pay- ing costs taxed under a consent rule and a rule for judgment as in ca.se of a non- suit, it is unnecessary to shew that a ca. sa. was taken out against the nominal plaintiff, and shewn to the lessor un the demanding of the costs ; nor is it requisite that it should appear that final judgment had been entered up ; but where the costs are demanded under a power of attorney, the practice requires that a copy of the power of attorney should be served on the party when the costs are demanded. Doe v. Kitig, 3 Kerr, 492. 23— On Awar^— Award must be before Coxirt. A rule for an attachment against a party for not performing an award, will not be granted unless the award is brought be- fore tho Court. Marks v. Marks, 486. 24 — Proceedings against Sheriff — Remedy on Judgment uot Lost — When ? See Discharge. 25 — Judge's certificate that there was no reasonable cause to bring action in Su- premo Court — Cannot be made a rule of Court to found an Attachment. See Horner v. Crookshank, 4 All. 375. 26— Exhibiting Interrogatories— Time. If the prosecutor does not exhibit inter- rogatories against a defendant in custody on an attachment for contempt, a rule will be granted for his discharge unless the interrogatories are filed within four days. Regina v. Salter, 4 All. 61. 37— Married Woman— Marriage of fs> male after verdict in IJjeotment —Attachment against married ft* male. If the lessor of the plaintiff in ejectment (a female) marries after a verdict for the dofondant, an attaohmoat will bo granted 52 ATTOllNEY— BARRISTER— COUNSEL. against her for non-payment of the costs, atter due demand. Doe dem. Sargeant V. Sargeant, East. T. 1864. 28— Attachment is in nature of a Mesne Frooess—SherifT— Es- cape— Liability. An attachment for non-payment of costs is in the nature of a mesne process, and a sheriff is not liable to an action for the escape of a person so imprisoned unless the plaintiff in the suit has sustained actual damage or delay in consequence of the escape. Atkinson v. Mitchell, Trin. T. 1865. 29— Election Law— Costs— Attachment. Where the Judge who tries an election petition makes an order for costs under the 62nd sect, of the Act 32 Vic. c. 32, an attachment for non-payment of the costs should be granted by the Judge and not by the Court. Kay v. Hannington, East. T. 1873. Cost of Appeal from decision of Judge in Equity, recoverable by attachment not by execution. See costs 79. See General Rules 13. ATTORNEY — BARRISTER — COUNSEL. I. Admission. II. Striking off Roll. III. Pbivileqes. IV. Unoebtificated. V. Authority. VI. Duties. VII. Liability. VIII. Bill of Costs. IX. Taxation of Costs. X. Miscellaneous. I. Admission. 1 — Soo Qeneral Rules 15 to 25. See Acts of Assombly 26 Vic. c. 23. 30 Vic. 0. 7. 31 Vic. 0. 3. II. Striking off Roll. 2 — Some reason should be given for strik- ing an Attorney off the Roll, eyen on his own application. Ex parte McCuUy, Gent, one &c., 1 Kerr 521. 3 — An application to strike an Attorney off the Roll for misconduct, must be founded on an affidavit adduced on the motion. Ex parte Palmer, 2 AU. 533. III. Privileges. 1 — A defendant, who is an Attorney of tho Supreme Court, cannot be proceeded against summarily for a demand under £20. Bennet v. Morse, 2 Kerr 624. 2— Venue. The plaintiff, an Attorney of the Supreme Court, by another attorney sued out a common capias against the defendant, and laid the venue in York county, de- scribing himself in the commencement of the declaration as an attorney of the Su- preme Court, and entitled to his privilege as attorney ; on the defendant obtaining an order to change the venue to the coun- ty of Gloucester, on the usual affidavit that the cause of action arose there, tho plaintiff by another order had the venue brought back, on the ground that as an attorney he is entitled to lay and retain his venue in Yorkj and on motion to rescind the last order — Held, That the laying or retaining the venue in tho county where tho Court sits (viz. in the county of York), is a privilege inherent in the attornies of the Supremo Court of this Province. Hold also. That this pri- vilege was not waived by the plaintiff's not suing out an attachment of privilege, but as a common person by capias ; tfc o privileged character having been alleged on the record and allowed to remain there, without any prior objection to its regular- ity. Deshrisatf v. Baldwin, 3 Kerr 379. 3— Lien. An attorney has a lion on a judgment obtained by him for his costs, as between attorney and client. Linton t. Wilson, 1 Kerr 300. 4 — Where the Court allowed a judgment to bo set off against another, it must be sub- ject to tho attorney's lion generally, and not merely to tho extent of tue taxed costs in tho particular suit. Seo Rogers v. Lcddcn, 2 Kerr 59. 6 — An attorney, who also practiBes as a bar- rister, has no Isfjal right to retain for oounsel fees, monoy belonging to his client, ATTORNEY— BARRISTER— COUNSE L. 53 without assent. In re Bayard, ,1 All. 359. 6— Services— Pees. A barrister cannot maintain an action apjainst his client for professional services. Kerr V. Bnrm, 4 All. 604. Quxrr, Whether "uch an action would lie on a special contract for a fixed sum, after the seivice was performed. Iluf. A trial fee, under the Ordinance, is a fee to the counsel, and not to the attorney, lb. 7— Judgment assigned. Attorney has a right to receive the tax- ed costs of judgment assigned. Sec Green V. Hendruks, 1 All. 698. 8— Parties settling Suit. The parties to a suit have a right to set- tle it without the consent of the attorney, and ho is not justified after notice of the settlement in proceeding with the suit to recover his costs, unless the settlement was collusive for the purpose of dcfr:;ud- ing him. Ex parte Morse, 3 Kerr 366. 9— Payment of Money— Assignee. The (Jourt will not compel au attorney, on a summary application, to pay over the proceeds of a judgment to a person claim- ing as assignee unless his right is clear. Murraif v. Johnston, 1 All. 697. 10— Service of Bill upon Attorney Should, in general, be personal service. See Sayre v. Gilbert, 2 Kerr 225. 11— Barrister. A barrister has no legal remedy to recover remuneration for his services. In re Bay- ard, 1 All. 359. 12 — A barrister against whom an action is brought has no right to conduct his de- fence both in person and by counsel. Robinson v. Palmer, 2 All. 223. IV. Uncertificated. 1 — A writ issued by an uncertificated attor- ney, and all proceedings taken thereunder, will bo set aside. Desbrisay v. Mac/cay, 1 Jfan. 138. 2— The proceedings in a suit by an attor- ney who has not taken out a certificate under the Act 22 Vie. o. 28, are a nuUitv; and the objection is not waived by the dofondnnt's attorney attending the trial of the cause, ailer knowledge of the omis- Bion. Ryan v. Mclntyrc, Hil T. 1870. Authority. 1— Written. The Act 12 Vic. c. 40, s. 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 bo pre- sumed in absence of evidence to the con- trary, that the attorney had written au- thority. Either party may apply to stay proceedings in au action brought without authority. James \. McLean, 3 All. 164. 2— Production of authority. Counsel not required to produce his authority in making a motion before Court. See Jn re Hunter, 1 Han. 233. 3- Signing Co^ovit. An attorney nas no authority to sign a cognovit in a suit without the authority of his client, but his client will be bouml by a cognovit given without his consent, if he makes no objection when informed of it. MvNamrc v. O'Brien, 4 All. 548. 4— Presumption of authority to issue execution. Where au attorney issued an execution in the name of the defendant, an attorney residing at a distance from him, and de- livered it to the Sheriff, and afterwards attended before a Judge to oppose an ap- plication to set the execution aside. Held, In an action of trcspas-j for taking pro- perty under the execution, that in the absence of evidence, to negative the authority and to shew that the defendant did not receive the proceeds of the exe- cution, it might be inferred that the attorney had authority to issue the execu- tion. Wilson v. Street, 3 All. 251. S— To giv« Power of Attorney to de- mand costs. Attorney cannot give a power of attorney for his client to duuiand costs. See At- tachment 18. 6— Counsel— Appearance in suit on trial without authority. Where no notice of trial was given by phiintifi', and a counsel who had boon re- tained in a former trial, in ignorance of this fact appeared without authority, de- fendant being absent, and defended, a verdict for the plaintiff was set aside. See Doherty v. Desbrisay, 1 Han. 494. 64 ATTO «NEY— BAIUIISTER— COUNSE r.. VI. Duties. 1 — Implied understanding to pay over mo- ney collected, on demand. See Gilbert V. Palmer, 1 All. 455. 2— What is a sufficient demand? An intimation from a clieut to his attor- ney, 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. Palmer, 1 AU. 667. It is not necessary that the demand should be made at the attorney's residence or place of business, unless ho objects on that ground. Ibid, Duty to communicate to client offer of com- promise 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 All. 88. Sec Practice in Equity 21. VII. Liability. 1— For Sherifi's Fees. Attorney liable, us well as plaintiff, for Sheriff's fees on executing writ of ca. sa. See Kavanayh v. McPhelim, 1 Kerr 472. 2 — Not liable for poundage on execution unless he receives the amount from the defendant, though the defendant has escaped from the limits and his bail has paid the debt and costs to attorney. Cald- well V. Badger, 2 All. 516. Not Filing Papers — Forfeiture of Costa. See Practice VI. 48 a. 8— Improper Pleading. If an attorney, without any assignable reason and without any precedent, adopts a now and unusual mode of pleading, in oonsoquenco of which his client suffers loss, the attorney is answerable in an action for negligence. Carrigan v. An- drexos, 1 AU. 486. 4— iMuing Void Writ. An attorney is liable over to a sheriff who sustains damages by proceeding under what purports to bo a writ of the Court but is not, when the samo is put into the sheriff's hands by him. Johnston v Winslow, Ber. 53. VIII. Bill op Costs. 1— Delivery of before action. It is not necessary for an attorney to de- liver a taxed bill to his client before bringing an action. Jack v. C'lewes, 3 Kerr 637. 2 — The Act of Parliament 3 Juc. 1, c. 7, requiring the delivery oi an attorney's bill of costs before action brought, ex- tends to this Province, but the Act 2 Geo. 2 c. 23, requiring the delivery a month before action, is not in force here. James v. McLean. 3 All. 164. 3— Signing, Tho Statute 3 Jac. 1, c. 7, requiring at- torneys to del ver signed bills of costs to their clients, extends to this Province, and is not affected by its repeal in Eng- land by the 6 and 7 Vic. c. 73. Kerr v. Bums, 4 All. 604. 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, docs not amount to a signing of the separate bills under the Statuto. Ibid. IX. Taxation op Costs. 1— Review of— Retaining of money by Attorney. The defendant, after a verdict against him, placed in his attorney's hands £22, to be applied in part payment of the judgment ; the attorney retained the money, and made an application to re- view 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 the defend- ant the £22, 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 proceedings. Betti v. Chap- man, 2 All. 450. 2— Ordering Attorney to pay costs of dismissing motion for review. Where on an application for a review of taxation of costs, it appeared that the bill was exorbitant, and the items disallowed ATTORNEY— BARRISTER— COUNSEL. 66 by the clerk, with trifling exoeptioDs, illegally charged, the attorney applying for the review was ordered to pay the costs of dismissing the motion. Doe t. Dohaon, ?, All 531. 3— Allowance of Counsel Fees— Clerk's duty. In taxmg costs between attorney and client, counsel fees may be allowed with- out the Judge's fiat ; but it is the duty of the Clerk to decide on the authority to make the payment, and the reasonable- ness of the charge. Ex parte James, 3 All. 286. 4— Outlays— Special Jury— Betaining Counsel. An attorney is entitled to recover from his client a sum paid fur a special jury, where the cause has been so tried 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 oppor- tunity of conferring with his client, his consent should be obtained. Ibid. 6— Costs in Inferior Court— Clerk tax- ing. . In an action on an attorney's bill of costs incurred in the inferior Couft, the reason- ableness of the charges may be 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. 6— Taxable Charges— Servicen per- formed at request of client. In taxing costs between attorney and client, the attorney is entitled to the tax- able charges of drawing and copying a declaration in a suit brought by the client, though he is not the attorney in that suit; the service having been perfurmod at the request of the client, and with the assent of the attorney in the suit. In re Bay- ard, 1 All. 571. 7 — Qumre, Whether an attorney can re- cover from his client money paid for coun- sel fees ? See Jack v. Clcwes, 3 Kerr 637. 8— Recovery for services other than provided for in the ordinance. In un action by an attorney to recover the amount of a bill of costs incurred in de- fending defendant against a eriuiiiial charge, the bill had been taxed by the clerk, who taxed only such items as the ordinance of fees provided for, and re- fused 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 plaintiiF for such services as were in the nature of attorney's work, but that plaintiff could not recover for counsel fees. Qusere, Whether if the clerk had followed the English practice and taxed the whole bill it would have been sustained ? Peck v. Tingley, 1 Uan. 418. Miscellaneous. 1— Action for negligence— Preferring of judgment. In an action against an attorney for neg- ligence in conducting a suit for the plain- tiff against M, it was proved that at the time the plaintiff employed the defendant, he was informed the defendant 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 defendant to proceed on his own judgment against M, and exhaust his property before issuing execution on the plaintiff'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. 631. 2— Record— ITame of Attorney. The Court consider it irregular for the name of more than one Attorney of firm to appear as Attorney on record. Gil- mour V. Bull, 1 Kerr 94. 3— Partnership— Notice by one of firm. Where two attorneys in partnership ap- pear in a suit, a subsequent notice of a proceeding in the suit signed in the name of one of them is sufficient; the act of one partner in such a matter being the act of both. Doe v. Taylor, 3 All. 437. 4— Pleading- Action against. Where Bill filed in vacation, Attorney must plead within twenty days from time of service of copy, and cannot wait till ensuing term. Hoj/re v. Gilbert, 2 Kerr 225. 6— Misconduct— Cognizance of, by Court. Where a motion was made by the defend- ant against the plaintiff's attorney, re- quiring him to refund costs which hud 66 ATTORNEY— BARRISTER— COUNSEL. 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 incur- red a large amount of costs, which the defendant had paid ; and the application was accompanied by a draft of the bill of costs, which was said by the attorney to be lost or mislaid, In which drail there were apparent overcharges ; the ground of application in regard to the payment was satisfactorily answered, 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 bo taxed, to refund 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 to abide the taxation of the opposite attorney. JUdanson v. White, 3 Kerr 501. 6— Blisconduot. If an attorney of this Court is guilty of any misconduct in practising in an inferior Court, this Court will take cognizance of it on a summary application. Gilbert v. Honri/, 3 Kerr 'did. 7 — The Court will investigate a complaint made against an Attorney by his client, and make such order therein as justice re((uires. On such an investigation an attorney was ordered to refund money to his client and pay the costs of the appli- cation. In re Lwjrin, Trin. T. 1831. Proceeding in action after receipt given. See Receipt, Moran v. Gallaghi-r. Ordering Attorney to file writ. See Execu- tion IV. 7. 8— Change of Attorneys— Attorney in contempt— Time of application. Where a Judge's order had Decu made to change the attorney and file the papers in a cause, in ignorance of the original at- torney being in contempt, a party wishing to take advantage thereof, should apply to rescind the Judge's order. Kirlin v. BaMif, 2 All. 116. It is too late to apply after receiving a copy of declaration. Jliid. 0— Proper person to make application —Reasons. An order for u change of attorney ouglit not to be made on tl)n mere application of the attorney, on the ground that he is unable to proceed in the suit in conse- quence of non-payment of court fees. Kelli/ V. Bow, 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 disability of the attorney at the time he commenced the suit, the Court refused to set it aside. Ibid. 10— Taking Warrant of Attorney- Items improperly included— Iterance 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 without affording him an opportunity of taking legal advice upon the nature of the demand and the secu- rity. Smith V. Jonct, 2 All. 176. Where an attorney, without any fraudulent intention, took from his client a warrant of attorney for costs of suits and money lent, etc., and for a settled account due from a former deceased client, whom the defendant represented, the Court refused t proceed to trinl at the next Circuit. Jareim v. Hardy. 3 All 242, 16 -Condition to pay ooata not ftil- fllled. In an action brought on a limit bond against the principal and sureties for an escape, it appeared that the plaintiff let the defendant go, upon the understanding that the defendant should pav all costs, the Court refused relief tt* the Kureties under 6 Wm. 4, c. 41, s. 13, it not ap- pearing that all uostH had been paid. Rohertmn. usin'. 37— Exception- Entry. Exception to bail not necessary to be en- tered in Judge's book. See Porter v. Bumn, 1 All. 106. 38— Escape— Order for render after. An order for render may be made atlcr an escape from the limits, and proceed- ings on the bond against the sureties for the escape will bo stiiyeJ on payment of costs. McMillan v.Lart/cn, Trin 2'. 1865 BAIL (COMMON.) See Practice. BAIL BOND. See Bond li BAILEE. 1— Pawnee may maintain replevin for pawned goods ^n'ongfiuly taken. A pawnee may maintain replevin against the pawnor for a wrongful taking of tho goods pledged. Proof of such pawning is sufficient to enable the pawnee to re- cover in an issue joined upon the ordi- nary plea of property against the general owner. Gibson v. Bot/d, 1 Kerr 150. 2— Conveyance to Trustees— Betaining 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. Held, That the general property in the goods passed to the trustees, and that defendant could not be considered as holding the goods as their bailee. Mc- intosh V. Hastings, Ilil. T. 1865. BAILMENT. 1— Action by Bailor for negligence to horse. Tho Court refused to set aside a verdict given for the plaintiff in an action by the bailor against the bailee of a horse for negligence, although the jury were not able to agree whether the bailment was a commodatum or mu^wum, the injury being such as to make the defendant liable in either case. liainslmrff v. 7?o.sted in a president and eight di'-ectors who were to be ehosiiu annually, Held. That the president and diri'ctors so chosen were the trustees un- der the Act, and that they continued in office I'.ller die exp'rati.m of the year, none others o, ving h"en ehoacn in tlieir places, — and were liable to the plaintill' iiir mmiey (hposiled in the \\\n k. (Ill- vhrUt\, \V;,,r. n defendant is not in confincnicnt, Mai/or, liir,, Si. John v. Loi'Uirnotf, 2 Krrr !). O-Dinoharge firom custody. A dolendant wlio was in custodv on exe- cution, at the suit of the plaintifl', at the time of the liankruptcy Act, 5 Vie. c. 43, cumin g into operation, and who has since been declared a bankrupt under that Act, and duly surrendered, is entitled to his discharge from custody, under the 24th section. I{ri/iuii(h v. llan/on/, 2 Kerr 114. Baroa and Feumie. Seo Husband and M'iCo. BASTARDY. 1— Still-born child— Order. An order of affiliation cannot bo made under the Bastardy Acts whore the child is still-born, although the parish huA been put to ezponsos in the attendance on tho mother. Rctjina v. Aiurphj^, 1 Ktrr 524. 2— Jurisdiction in Sessions. A being charged as the reputed father of a bastard child of which B was then pregnant, appeared at the January Ses- sions and denied the chaigc ; B was sworn as a witness, but it appearing to tho Sessions that she did not understand the naturo of an oath, tho case was dismissed, and A's sureties discharged. After the birth of the child, A was again charged before a subsequent Sessions with being tho father, and pleaded autrr/oia niquit. Held, (Parker J., duhitiniti; and Ritchie J., disufntinitc.,) that the January Ses- sions had power to try whether A was tho fatlier or not. though they could not make an order of filiation till tho child was born, and that having acquitted him of the charge, he could not again bo tried for tho same offenco. Held, per Ritchie J., That until the birth of the child, tho Sessions had no power to hear evidence or make any adjudication ; and that tho order of the January Sessions discharging A was .)id, and could not bo pleaded as an answer to the charge made against him after the birth of the child. Ex pnrti' LWahroo/,-x. 4 A//. 273. 3— Proceedings not criminal- Witness. A proceeding to obtain an order of affili- ation under the 1 licv. Stat. c. 57, is not a criminal proceeding on which the party charged is punishable on sumuiary con- viction, and therefore he is a competent witness by the Act 19 Vic. c. 41. Ex parte Coo/,; 4 All. 500. Qiitrrr, Whether a Justice of tho Peace who is a rate-payer in a parish on which a bastard i;hild s chargeable, is disquali- fied from acting in proceedings to obtain an (.'lur of affiliation. //>fW. 4-Qi^ashing order in part. An order of affiliation may be (juashed iu part and confirmed as to tho rest, if tho defective part can be separated from the other. T/)' Qur,n v. Shnp»on^ 1 Ihin. 32. fi— Jurisdiction Consent— Trial by single Justice. Where in a b'' 3uirdy case by consent of counBcl u si'.gle Justice tried tho matter alone and afterwards made an order of affiliation, the Court held that a court could not be constituted by consent, and ordered tho proceedings to bo quashed. Thi Quren \ .thv Jmtuiiof Wintmorlanii, I I/an. 408. Hold also, that the Court not being pro- perly oonstitutod there was do trial at all, €:m '"!!W 64 BILLS AND PllOMISSORY NOTES. and the party was requircdfto enter into recognizunces to answer the charge be- fore the sessions. Ibid. 6— Order subatantially good. An order of affiliation adjudging the father rf the child to pay £10 12s. 9d. for the lying-in expenses of the mother, and for the support of the child up to the date of the order, is substantially good, though it does not follow the form given in 1 Rev. Stat. c. 67. Ex parte Kenun/j/, Hil. T. 180(5. 7-r#udKtnent on scire fttoias— Costs. A judgment on srirc focia» on a recogni- zance in Bastardy proceedings, under 1 Rev. Stat, c. 67, is conclusive while it stands, and the defendant cannot object to the amount of costs taxed by the Ses- sions. If the costs an! excessive, appli- plication should be made to the Sessions to reduce them. Riij. v. Carson, llil. T. 1866. 8— Mayor of fbrederioton— Right to sit in Sessions. Under the Act 2nd Vic. c. 8, the Mayor of Frederieton has no right to sit in the Sessions on the trial of a Bastardy case arising outside of the city. Kx parte Carson, Trin. T. 1864. See Acts of Assembly i{3rd Vie. cap. 3'J. Barrister. See Attorney, &c. Bequest. See Will. Bills of Exchange. See iiiiis and Notes. BILLS AND I'ROMISSORY NOTES. I. Requisites — Fok.m — Oi'euation. II. Parties — Riuirrs — Liability — Acceptance. III. Pkesentment — Demand. IV. Notice ok Dishunour. V. Defence. VI. Miscellaneous. I. Requisites— Form— Operation. l—Oontinuing Security -Time of pay- ment not specified Demand. Where no tinie of payment, is specified in a promissory note, it m payable on do- inand ; nod where nuoh note is on inter- est, it does not booomo over due by more lapse of time without demand of payment having been actually made. Thorne v. Scocil, 2 Kerr 557. 2— Blank Payee. A promissory note payable to or order, cannot be recoveted by the person to whom it was given, either as payee or bearer, without inserting his name in the blank as payee. Mutual Sa/cfi/ Insur- aucc Cmipujiff v. Porter, 2 All. 230. Any Iwna fiw«"J.ng house— Store dosed. The maker of a promissory note, who was a merchant residing and carrying on busi- ness in the city of St. John, having be- fore the note became duo closed his store and absconded. Held, That presentment at his late dwelling house was sufficient without proof of presentment nt the store, or that the atore remained closed on the day the note fell due. Rohinton V. Taylor, 2 Kerr 198. 11— Admission. The holder of a note store that he went to the maker's store for the purpose of presenting it for payment, but finding the Hour locked made a formal proscntuieut at tho door. The maker of the note swore that ho was at his store at tho time stated, and that uo pronentmeut was made. The Judge left to the jury the question whe- ther the holder had presented the note or not, and in answer to a question by the jury, told them that for the purposes of tho suit such a presentment would be suf- ficient, no objection on that ground hav- ing been made by the defendant. Held, That there was uo misdirection, and that the jury could not have been misled by the answer to their question. Reed v. Kavanagh, 4 All. 457. An admission by a defendant that he had received notice of dishonour, in the ab- sence of any proof that it was received too late, or any objection made to it, is evidence of its sufficiency. Jbid. 12— Necessity of presentment— Note drawn and payable in Boston. Qusere, Whether, in an action on a note drawn and payable in Boston, it is neces- sary to prove presentment there, there being no evidence that presentment is necessary by the law of that country. If necessary, it may be waived by a subse- quent promise to pay the note. See AUen T. McNaughton, 4 All. 234. 13— Time and place of presentment. In an action against the indorserof anote, the plaintiff must show that it was pre- sented ai a reasonable hour. Patterton V. Tapley,A All. 292. Where a note was payable at a "store," and the only evidence was that when the holder went to present it, the store was closed ; and the defendant objected that tho presentment was not shown to have been made at a reasonable hour. Held, That in the absence of any evidence of the nature of the business carried on at the store, it might be inferred that it was closed in the due course of business, and therefore that the presentment was not made at a reasonable time. Ibid. Semble, If no question is raised at the trial about the hour of presentment, and it is proved to have been made on the day the note falls duo, it might be presumed to have been made at a proper hour. Ibid. 14 — Presentment of a note at the maker's place of business is sufficient, although there is no person there at the time. Kinnear v. Goddard, 4 All, 669. Tho maker of a noto was proved to have occupied an office up to tho Ist May, after whion, there was no direct evidence of 70 BILLS AND PROMISSORY NOTES. occupation, but his desk remained there as before. Held, In the absence of any proof of his having changed his office, that presentment of a note there aflter the 1st May, was sufficient. Kinnear v. God- (fard, 4 AH. 559. 16— Payable at partioular place— Time of demand. A demand of payment of a promissory note made payable at a particular place, need not bo made on the very day it falls due to fix the maker, although there must be a demand at the place upon or afler tijo day, before bringing the action. — Ratrh/ord v. Griffith, 2 Kerr 112. 16— Payable "at any Bank"— Place of presentment. A promissory note drawn on Boston, where both the maker and payee resided, was made payable " at any bank." Held, That this meant any bank in Boston — Baldwin v. Hitchcock, 1 Ilan. 310. 17— Necessity of presentment. In an action by the payee against the ac- ceptor of a bill of exchange, payable at a particular place, which became due on the 3rd of November, the plaintifif averred presentment for payment on the 2nd. it appeared in evidence that the bill had been presented on the 2nd, and that on the 3rd, the day it became due, the de- fendant expressly refused lo pay it to the plaintiff's agent, who called again, but it did not appear that the note was again produced. Held, That proof of present- ment on the 3rd was admissible, and that the refusal to pay on the 3rd, rendered the actual presentment of the bill on that day unnecessary. Chandler v. Beckwith, Ber. 268. Payable at particular place — Necessity of presentment — Suspension of remedy — Common Counts. See VI. 12 a. 18— Pleading. See VI. 12. IV. Notice op Disuonour. See Bills and Notes III. 1— Eridenoe of. Assumpsit by indorsee against drawers of a foreign bill of exchange, drawn by the defendants in this province on Duncan Brothers, Loudon, payable sixty days after sight, and returned under protest for non-payment; the declaration averred in the usual form a presentment to, and acceptance by the drawees, presentment for payment, dishonour, protest and no- tice. There was no direct evidence of acceptance, but on the face of the bill appeared the following words : " Accept- ed 17th May, 1841, at Messrs. Jones, Loyd & Co. — Duncan Bro's. ;" and the protest of the notary public stated that he went with the original afore copied bill of exchange to the house of Messrs. Jones, Loyd & Co., bankers, where the same drawn upon Messrs. Duncan Bro- thers is accepted payable, and demanded payment thereof, and was referred to the acceptors, whereupon he went with the bill to the counting house of the accept- ors and demanded payment, whereunto a clerk answered that the said bill cannot be paid. Due notice of the dishonour was given to the defendants, and no objec- tion made in regard to the acceptance. Held, That there was sufficient evidence of the dishonour to make the defendants liable. Irvinv. Crookshank,2 Kerr 309. 2— Presumption of. An action by the payee against the drawer of a dishonoured bill of exchange, was discontinued on terms of the acceptor paying the costs, and placing the amount of the 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 dune, the bill was given up to him. In trover against the acceptor for the bill (the amount not hav- ing been placed to the payee's credit), the jury were directed that under the cir- cumstances they might presume that the payee had given notice of dishonour to the drawee, and that the plaintiff was en- titled to damages to the amount of the value of the bill at the time of the con- version, which was the amount due on face of the bill. Held, That this direc- tion was right. McDonald y. Everitt, 3 Kerr 569. 3— Suffioienoy of! A bill drawn in St. John was dishonoured in London on the 16th October, the plaintiff not then being the holder; a mail left Liverpool for St. John on the 19th October, by which the plaintiff could not have given notice of dishonour, 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 prima facie the notice was sufficient a.id that the plaintiff was not bound to shew that he had received duo notice from the ill BILLS AND PROMISSORY NOTES. 71 holder of the bill at the time of the dis- honour. Tarrat v. Wilmot, 1 All. 353. [4— By whom. Notice of the dishonour by the cashier of a bank at which a note has been left by the holder for collection is sufficient. Girvan v. Price, 309 All. 4. j 5 — Where a note indorsed in blank, is left at a bank for collection, notice of disho- nour may be given by the bank, though it has no interest in the note. Howard v. Godartl, 4 All. 452. 1 6— Notice by_ letter— Posting. Notice of dishonour to the defeudant as indorscr of a promissory note, pat in the post office at Saint John, and directed as follows: " Mv. D. D. (the defendant) near Blake's mills, Naahwaak," is not sufficient without proof that a letter thus directed would probably reach the defendant in duo course through the medium of the post office. Robmson v Duff, 2 Kerr 206. 7 — In an action against the drawer of a bill of exchange, dated at Moncton — Held, 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, contain- ing a notice of dishonour, directed to the defendant at Moncton, did not afford a reasonable presumption that the letter would reach its destination. Bulloch v. Binney, 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 dei'endant : Simblc, That the letter put into the post office, containing the notice, will be presumed to bo directed on the outside in the same way. Ibid. 8— Mistake in date of TTote. Notice of dishonour to the indorser of a promissory note is not voided by a mis- take in the description of the note, E. G. stating it as a note dated 1st 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. Tai/lor, 2 Kerr 198. 8— Admission. An admission by the defendant that he had received notice of dishonour, in the absence of any proof that it was received too late, or any objection made to it, is evidence of its sufficiency. Rend v. Ka- vannijh, 4 All. 467. 10— Place— Change of residence. Defendant had resided and carried on business for several years at a place called Brandy Point, and was in the habit of receiving through the Post Office, letters addressed to him there. Held, That a notice of dishonour addressed to him tX Brandy Point was sufficient, though he had changed his residence about that time — the plaintiff not being awai^e of such change, and having applied for in- formation as to his residence, to the payee of the note, with whom the defendant was in the habit of transacting his busi- ness in St. John. The Bank of New Brunswick v. Millican, 4 All. 254. 11— Service of Notice — Entry in deceased Notary's book— Besi- ence of party— Presumption. Where the indorser of a note (the de- fendant) and several of his brothers lived with their mother, and the proof of ser- vice of notice of dishonour was an entry in a book by a deceased clerk of a notary, whose business it was to serve notices of dishonour 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 resi- dence." Held, In the absence of evidence that any brother of the defendant had any other residence than at their mother's hou.se, that it was a fair presumption that the notice had been served there, and that tlie Judge was warranted in leaving it to the jury to find whether it had been duly served. Canbj/ v. Wriyht, Mich. T. 1872. 12— Time— Waiver. Where a bill drawn on persons residing in Dublin, Ireland, was protested for non- payment on the 3rd November, 1841, notice thereof to the indorsers, who re- sided at Saint John in this province (where the bill was drawn), on the 22d December following, was held not be in due time, it appearing the mails left Great Britain for this province on th 4th and on the 19th November, and that a notice sent by the mail of the I9th, would have reached Saint John about the 4th December. Bank 0/ Nciv Brunswick v. Knowlcs, 2 Kerr 219. An offer to give promissory notes at three and six mouths i'or the amount duo on tbo bill, which was not accepted. Held, To be no wniver of the laches Ibid. 13- Due diligence. The dufuuuunt had a house in Mauger- 72 BILLS AND PKOMISSORY NOTES. ville, whore his family lived, and where he resided in the winter ; but during the rest of the year — from May till about the end of December — he carried on business at Indiantown. and resided at the house of B, where his notes had several times been presented for payment, and notices of dishonour had been left for him, and which notes he had paid. In January 1857, a clerk in the bank, who had for- merly delivered notices at the same place, left a notice of dishonour at B's house, addressed to the defendant, which notice he never received, having left Indian- town for Maugerville about three weeks before. The Judge left it to the jury whether the holder of the note had used due diligence to ascertain the defendant's residf^nce and in giving the notice of dis- honour. Held, per Carter C. J., Wil- mot J., and Ritchie, J. — (N. Parker M. R., and R. Parker J., dlssentienttbus) that the direction was right; and that when reasonable diligence has been used to discover the place to which notice should be sent, and it has been sent ac- cordingly, it proves the averment of due notice in the declaration ; but that if, in consequence of the holder being unable to discover the indorser's residence, no notice of dishonour is given, the excuse should be averred. Per N. Parker 31. R., — that the proper question for the jury was, whether B's house was the defend- ant's residence at the time t!ie notice was left; and if it was not, that the \erdict should have been for the defendant, though the plaintiff had used due dili- gence to ascertain his residence. Per Parker J., that as B's house was neither the defendant's residence or place of busi- ness at the tiuie the notice was given, or the place designated by him on the note, the delivery of the notice there, did not prove the averment of notice in the decla- ration. Patterson v. Taplry, 4 All. 529. 14— Diflpensation of presentment- Evidence of. The payee of a note, indorsed it to the plaintiff us security for a debt: on the day the note cnuie due (the maker hav- ing in the mcuntinie left the country) the plaintiff went tu the iiidorser and gave niui the note, saying he supposed it was of no use to any one, the indorser handed it back to the plaintiff, and told him tu keep it for the present. Held, That this was evidence of a dispensation of present- ment by the indorser. Masters v. Slubbs, 4 All. 453. 15 — Recovery under Common Counts, if no notice of dishonour given. See James v, McLean, 3 All. 164. 16— Mistake in name— Time of reoeiv- ing notice— Admission— Inference for Jury. A notice of dishonor sent through the post office, was addressed to " Edward T. Price." The defendant whose name was "Edward Price," admitted the re- ceipt of the notice, but objected to pay because he was an accommodation indor- ser. Held. That the jury might infer that he had received the notice in due time, and therefore that he was liable not- withstanding the mistake in the name. Girvan v. Fries, 3 All. 409. Defence. 1— Fraud. Several of the creditors of the defendant entered into a composition agreement with him, whereby they engaged to accept pay- ment of their debts at certain stoted periods, and among the rest, the plaintiff agreed to ^rant three years for the pay- ment 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 his debt, payable by annual instalments, but that such note was in fraud of the other creditors. Willard v. Killman, 1 Kerr 105. 2— Fraud— Question for Jury. If in an action against the maker of a pro- missory note, the defence is, want of con- sideration, 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 indorsee of a bill of exchange, ac- cepted by the defendant, for the accom- modation of the payee, and of which there was some evidence of indorsement over due, having received property from the payee for the purpose of satisfying this bill and others, admitted that he had suf- ficient property in his hands for that pur- pose, and promised the defendant to destroy the bill. Held, That there was evidence of a good consideration for the promise, and that the Judge was right in BILLS AND PROMISSORY NOTES. 7d leaving it to the jury to say whether the plaintiff 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 grow- ing on a track of land, which he had agreed to purchase from the Crown, and for which he had paid the principal part of the purchase money, but had not ob- tained a grant. The defendant cut a por- tion of the timber for which the plaintiff paid the duties, but the Crown prevented the defendant from cutting the remainder. Held, In an action on a promissory note given by the defendant 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 recover- ing, dark V. Ash, 3 Kerr 211. 5 — Defendant gave the plaintiff a promis- sory note for £150, because she thought a deceased brother (whose brother she in- herited) would have left the pbtintiff as much if he had made a will : a verdict for the plaintiff for £20 was set aside, though there was evidence that the deceased owed the plaintiff about that amount, this debt being no part of the consideration of the note. Mc Carrol v. Reardon, 4 All. 261. -Assent of party. Ins 6 -Consideration Where the plaintiffs, who were an Insur- ance Company, refused payment of a partial loss to the assured in a marine policy, in consequence of the claims of W. P. & Co., to whom the amount of insur- ance was in case of loss made payable ; but consented to advance the amount, upon the assured giving their promissory note in- dorsed by the defendant for the sum, which was to be paid at maturity unless they procured the assent of W. P. & Co. to their retaining the money ; which assent was refused. Held, That the de- fendant was liable on the note, and could not 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 Brunswick Assurance Company v. Ans- ley, 2 Kerr 196. 7 — Defendant gave his note payable at a future day, to the plaintiff, for a debt duo from A to the plaintiff, A agreeing, in consideration thereof, to convey land to 10 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 for the defendant's promise, and that the plaintiff's knoW' ledge at the time the note was given, of the agreement between the defendant and A, respecting the land, did not affect the plaintiff's right to recover on the note, he not being a party to such agreemonti Moffat V. Duplisaiy, 1 Han, 21. 8— Note for arrears of rent— No auth' ority to lease— ITote void. The Justices of York were empowered by Act 10 Vic. c. 7, to lease certain lands at auction, but that no lease should be made unless the rent should have been fixed by 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 Freder- icton V. Lucas, 3 All. 5S3. 0— Composition— Suspension 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 the pay- ment of his debt. Held, That the plain- tiff could not before the expiration of that period, maintain an action on u promis- sory note which he had aflcrwards in- duced the defendant to give him for the amount of his debt, payable by annual instalments; but that such note was in fraud of the other creditors. Willard v. Killman, 1 Kerr 105< 9 a —Consideration— Composition- Release. The defendant assigned to a trustee a portion of his annua! income, for the pur- pose of paying his creditors a composition on the amount of their respective de- mands, and they covenanted that the pay- ment of the composition should operate ^, <-.^^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !f "^ la m Ui |2.2 I!f 144 "" II ^i^l^ L25 IBU 11.6 I ^^ ^ > '/ Photographic Sciences Corporation 33 WIST MAIN STRUT >VIMTIR,N.Y. USIO (7U)l73-4»09 ,<^ fffim :U I,. ,1 j(i^piBsi!Ri!.iiiujj!i|iiiiiu|ivij.!ii" ■wqiPiM 74 BILLS AND PROMISSORY NOTES. as a release of tbe origiDol debts com- pounded for ; C) one of the creditors, re- ftued to execute the composition deed until the defendant gave him a note tor X200, which he did without the knoW' ledge of the other creditors, and after which C signed us a creditor for £723. Held, 1. That the sum stated in the deed must be taken to be the whole amount of G's debt, and therefore there was prima facie no consideration for the note, and it was a proper question for the jury whe- ther the alleged consideration was real or not. 2. That the note was a fraud upon the other creditors, and that the plaintiff having become indorsee after it was due oould not recover on it, though it would not affect that part of the defendant's in- come which was assigned for payment of hie debts. JUcCalmont v. Baillie, 1 All, \~? le Ottfeotion— Lateneas of to oonaid- eration. Thh defendant having given a promissory note to the plaintiff, upon which the de- ft^ndant's property was attached in the United Statas, gave a new note with se- curity, in order to get the property re- leased. Held, That it was too late to object that the consideration of this note was fVaudulent. Tuttk v. Smith, 3 Kerr 643. 11 —Note over due— Indorsement. Where a promissory note made in 1836 at Bangor in the United States, where the maker and payee both resided, pay- able on demand (without specifying in- terest), was indorsed about two years afterwards by the pavee 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 indorsee Mtainst the maker, in which a verdict was round lor the de- fendant ; the Court refused a new trial. Dowjan v. Small, 2 Kerr 89. Semble, A note payable on demand is, after demand of payment and reftisal, to be treated as over-due ; and a note whereof Sayment has actually been made when emanded, cannot stand on a hotter foot- ing. Ibid. IS— Note over-due— Bvidenoe—Indor' ■er'e deolnretiona. In an action commenced in the autumn of 1840 by indorsee against 0, the maker of a promissory note dated in March 1836, and payable in the November following, no evidence was given at the trial by the plaintiff of the time and circumstances of the transfer, but the defendant in order to shew that the note had been indorsed over-due, so as to let in evidence of the indorser's declarations, produced a wit- ness who stated that the indorser had in August 1840, shewed him a note made by G in his (the indorser'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 indorser's declarations, and a verdict be- ing 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 been inaorsed over-due. Hammond v. Clarke, 2 Kerr 98. 18— Qiving time to maker. The plaintiff, who was indorsee of certain promissory notes made by J. & H. K., and indorsed by the defendants, which notes wore given in payment of a bill of ex- change drawn on persons in England, in the plaintiff's favour, and indorsed bv him to J. & H. K., in anticipation of suoh bill coming back protested, entered into an agreement with J. & H. K. to hold over and return the promissorv notes to them in case they took up the bill, with dama- ges and costs, when it came back; the bill came back subsequent to the notes falling due, and the plaintiff was com- Sailed to pav the amount to C the then older, J. & H. K. failing to perform their agreement. Held, That the agree- ment amounted to a giving of time to the makers, and that the indorsers were dis- charged. 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 indorsed to the plaintiff, the defence was that the note had been settled between the plaintiff and the maker, the plaintiff having received fVom him a new promis- sory note for £132, in which the £30 was included ; but it appearing to have been agreed between the parties that the £30 was to stand — the amount when paid to be indorsed on the note : the Court set aside a verdict given for the defendant, BILLS AND PROMISSORY NOTES. n was coin- and granted a new trial on payment of co^ts. Thurgar v. Berry, 2 Kerr c ^4. 15— Alteration— Negotiability. Where, upon a parohase of goods by G from A, G agreed to give a promissory note for the amount, indorsed by B, and a note was accordingly drawn and taken to B, who indorsed it ; but the words " or order" had been unintentionally 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. Lawton v. MUlldge, 2 Kerr 620. le-Identity. In an action by the indorsee of a promis- sory note ngainst the maker, the hand- writing of the attesting witness to the maker's signature, together with the hand- writing of the indorser, were proved, but no evidence was given to identify the de- fendant with the person named in the note, and the Judge at the trial, for want of such evidence, non-suited the plaintiff; on motion for a new trial — Held, That the evidence given at the trial was suffi- cient, and accordingly a new trial was granted. McCJlovgh v. Shield*, 3 Kerr tS91. 17— Set off— Appropriation. Where the maker of a promisscrv note delivered the payee a quantity of hay, without making any specific appropriation of the amount towards the paying of the note, and on a subsequent demand of pay- ment claimed no deduction on account of the hay. Held, In an action on the note, that the value of the hav could only be considered as a set-off, and that the plain- tiff was entitled to coats, though the ver- dict was for leas than £6. Barlow v. Clark, 3 Kerr 48S. 18— Payment— Receipt of rent. It is no defence to an action on a promis- sory note that the plaintiff had had pos- session of land belonging to the defend- ant, given as security for the note, and had an opportunity of receiving therefVom rent more than suffioient to pay the note; unless it is shewn that the plaintiff actu- ally received such rent. Simotuh v. Tra- vi», i Han. 14. IB— Beoority for payment The dofenaant placed timber in the plain- tiff's hands as security for the payment of a promissory note, under an aareement that the timber was not to be sold before isv November without defendant's oon- sent, but after that day, the plaintiff to be at liberty to sell, aft'jr givine the de- fendant fourteen days' notice : the plain- tiff sold the timber after the 1st Novem- ber, but without giving the notice. Held, (Ritehie, J., dubUatite,) That though the defendant might be entitled to damages in an action of trover, or on the agree- ment 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. Kinnear v. Ferguton, 4 All. 391 . 20— Appropriation— Privity. It is no defence to an action brought by the plaintiff, a merchant in Liverpool, as indorsee 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 paying for moneys col- lected, that the bill was drawn against a ship and cargo, which the owners had consigned to tneplaintiff instead of send- ing them to J. W., the defendant's agent, as had been originally intended; the plaintiff not having been privy to the ar- rangement, and having in fact applied the proceeds of the ship and cargo to the paymer. of other demands which he had against the owner. Hatton v. WUtnoL 2 Kerr 324. ai— Improper drawing— Vorgery of aig- ^ nature— BitoppeL It is not competent for the indorser 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. 692. SB- Indorsement by one of Pirm— Authority— Pimudulent indors- ment— Bona Ude holder. In an action by a bona fide holder against the indorsers of a note, it is no defence that the note was indorsed by one of the defendants (a firm) firaudulently, without the authority of the other defendants, and for matters not relating to the tmtiness of the partnership. iMd. Notice of such flraudulent indorsement given to the bona fide holder of a note wiU not affect his riaht to recover, nor will it i^> feet the right of his indorsee though the last indon^ement was made after the note was duo. Ibid. 18— Beleaee, befbre maturity of note. The holder of a note may disoharge th^ T6 BILLS AND PROMISSORY NOTES. indprser by a general release before the note is due, and such release will be a good defence to an action by a subse- Iuent indorsee. McLeod t. Uarman, 1 Tan. 692. (M— Statute of Limitations. To a plea of the statute of limitations in an action by the indorsee against the ma- ker of a promissory note, the plaintiff re- plied that when the cause of action accrued to him he was beyond seas, and that he exhibited his bill within six years ailer his return. Rejoinder, that at the time the supposed cause of action .icorued to the plaintiff, he was not beyond seas. Held, That the action accrued to the plaintiff when the note was transferred to him, and this being more than six years after it was due, his absence beyond seas was immaterial. Bradbury y. Baillic, 1 AU. 690. When the statute has begun to run, no sub- sequent indorsement to a person whether in or out of the Province, will stop it. Ibid. 25 — ^To an action on a promissory note pay- able in four instalments, the defendant pleaded that he did not undertake or pro- mise 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 joiped. Hold, That though the plea might have been bad on demurrer, the proof of the issue was on the plaintiff, and the cause of action on the two first instal- ments having accrued more than six years before the action was brought, he could not recover them. Montgomery v. Mc- Nair, 2 AU. 31. ^6 — ^Tho plaintiff sued on two promissory notes, made by the defendants while part- ners in trade more than six years before the commencement of the action ; certain payments having boon made within six years by one partner ailer the dissolution of the firm, as also an account in writing stated and signed by him, acknowledging a balance which included what was still due on the note. Held, Sufilcient to en- title the plaintiff to a verdict against such defendant, and if the respective payments wore actually made on the notes, they would be sufficient to take the ease out of the Statute of Limitations against both defendants, the Act of Assembly 6 Wm. 4, 9- 01, having cxpreul^ left th« «ff«Qt of payments on the same footing that they were before the passing of the Act. Sandt V. Keaior, 3 Kerr 329. 37— Statute of Limitationi. Assumpsit on three promissory notes; plea, Statute of Limitations. The notes, with several others, were given for land sold to the defendant by the plaintiff as executor of O, 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 lOi., and directed her to tell the plaintiff to indorse it 07i the notes, without mentioning any particular notes, and no notes being produced ; no indorse- ment was made on the note#i, and there was no positive evidence that the other notes had been paid ; but X4 10*. 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. Vanwart V. Roberts, 3 Kerr 672. 28— Joint Payees- Indonement by one. A promissory note made to G and D joint- ly, was indorsed by G alone to B, and by B to A. Held, That B was liable as in- dorser, and could not set up as a defence to an action by A that D had not joined in the indorsement. Thurgar v. Clarke, 2 Kerr 370. Semble, That A could not have maintained an action against the maker of the note without proving that G had authority to indorse. Ibid. 29— Extinguishment of original claim -Qivinf bill— Loss or Declaration in assumpsit on the common counts. Plea, admitting the sum of £626 12s. 4d. to have been due to the plaintiff, avered that for that sum the defendant at Saint Andrews, in this Province, drew his bill of exchange on one G. 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. Re- plication — that after the bill of exchange was BO received, and before it became duo and payable, the plaintiff sent the same by a vessel, of which the said G. M. was master, addressed to the plaintiff's aguut in the West Indies, for the purpose of being presented on the said vessers ar- rival, but that the vessel foundered at sea 90 tb« pa««age pvt, whereby tb« «a>d C. BILLS AND PROMISSORY NOTES. 77 nal claim M., the drawee, perished, and the bill was destroyed and lost, and the plaintiff was unable to present the same, and the same remains wholly unpaid. Special demur- rer, assigning for causes that the plain- tiff's remedy for the original debt was lost by his taking the bill of exchange, and was not restored by the destruction and consequent non-payment of the bill, as sot out in the replication; that the facts stated in the replication were imma- terial ; that after the receipt of the bill the liability for the original debt was only a secondary liability, and the plain- tiff's primary remedy was against the per- sonal representative of the drawee, and that the remedy, if any, was in equity only. Held, That the replication was not defective for any of the causes assign- ed, but afforded a sufficient answer to the plea. Bojfd v. McLauchlan, 1 Kerr 210. 30 — Plaintiff having an account against de- fendant and W. K., settled it by taking W. K.'s not«8, payable at future days in favor of plaintiff and his partner, and gave a receipt at the foot of the account, stat ing that he had received payment by tba notes (describing them). Held, That the original debt was extinguished by the notes. Thompatm v. Keith, East. T. 1864. Sl-8atiaflMtion of debt-Taking BilL Taking a bil' jf exchange is not, per «e, a satisfaction of the debt, but operates ouly as a suspension of the plaintiff's right to recover on the consideration of the bill, until he has done all that is ne- cessary to procure satisfaction by means of the bill. Emerton v. Oardi'ner, 1 AH. 451. 82— Bxtinguiahment of debt— Signing Oompoeition deed. The holder of a note, signing a composi- tion deed by which ho agreed to receive a certain dividend in full discharge of his claim against the maker, extinguishes his claim on the note, and he cannot main- tain any action thereon against the indor- ser. Thurgar v. TravU, 2 All. 272. 88— No legal intereet. D agreed to purchase a vessel ftom the defendant, and to pay by relieving him of outstanding liabilities, or in approved payments on iho transfer of the shiu' ; in order to carry out this contract, D ob- tained outstanding notes of the defend- ant's by giving his own notes indorsed by W in the place of them, which notes he (mnif^rrea to the plaintiff ov«r due, tell- ing the plaintiff at the time that he had no interest in them, and that they be- longed to W. The defendant never trans- ferred the vessel. Held, That the jury were properly directed that W never hav- ' ing had possession of the notes, had no legal interest in them, and that the de- fendant was legally liable on the notes, notwithstanding the agreement about the vessel might have been broken by D. Raymond v. Wilmot, 2 AU. 80. 84— Usury. A promissory note of £200 made by the defendant to one W. L., and indorsed to the plaintiff, which was affected by usurv, was discounted at the Commercini Bank, and payment thereof when due demanded by the bank. The makers paid the bank £26, and the plaintiff the remaining £176; whereupon a new promissory note was given with the same parties as before for £176, on which the present action was brought. The £200 note was given up. Held, That it was open to the jury to consider the note for £176 as a new secu- rity not affected by the usury in the pre- vious note; and they having found for the plaintiff, the Court refused to disturb the verdict. Davis v. Chhh, 2 Kerr 396. 36 — In an action by the indorsee against the maker of a promissory note, there was positive and uncontradicted evidence of usury; but a verdict was nevertheless given for the plaintiff; the Court set aside the verdict, and granted a new trial on payment of costs. Davii v. Leavitt, 2 Kerr 397. 36 — ^The defendant joined with one H. in a promissory note to the plaintiff for the Erice of goods sold to H. When the note ecame due, the defendant being called on for payment, gave a new note to the plaintifi^ which was tainted with usury, and the old note was thereupon given up. Held, That the plaintiff failing on the second note on 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 given for the plaintiff on the second note, and granted a now trial on payment of costs. Turnrr v. Gilbert^ 2 Kerr 464. 37 — An agreement to disoouut a note on condition thnt the borrower would take part of the amount in bills of exchange, at a premium higher thao the ^aih rate, 78 BILLS AND PROMISSORY NOTES. is prima facie usurious ; but that alone will not amount to usury if the excess of premium can be ascribed to any real con- tingency, or was taken as a fair equiva- lent for any risk incurred by the lender. Bank of British North America v. HshiT, 2 All i. 38 — Defendant indorsed a note for the accommodation of S, who gave it to B to raise money on it ; B applied to the plain- tiff who discounted the note, deducting more than the legal interest. Held, That it was u loan by the plaintiiF, and not a purchase of the note, »nd therefore the transaction was usurious. Peters v. Irish, 4 All. 326. 31) — In an action by the indorsee against the indorser of »n accommodation note, to which the defence was, that the plaintiff in discounting the note had taken usuri- ous interest, the maker of the note proved that he gave to B, a broker, to get it dis- counted. B could not identify thn note as the one discounted for him f the plaintiff, but said if it was so, the . ansae- tion was usurious. A verdict having been found for the defendant, a new trial was refused — there being no evidence of any other nctc between the parties, and the plaintiff failing to show that he had not obtained it from B. Bastings v. Ilenni- gnr, 4 All. 367. 40 — The defendant made a note in favour of the plaintiff, which he indorsed in blank, and delivered to the defendant, who trans- ferred it to 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 plaintiff being no party to that, and there being no usury in the inception of the note. Lawrence v. Hammond, 4 ^1//. 613. See Act of Assembly 22 Vic. c. 21, modify- ing laws relating to usury, limiting inter- est to 6 per cent., but contracts for more not void as to principal and legal interest. VI. MlSCKliLANEOIIS. 1— Damages. Semble, That the acceptor of a protested bill of exchongo, drawn in this country and accepted payable in England, is not liable to 10 per oopt. 4ai|n(kgoB under Rev. Stat. 0. 116, in an action brought here. See Morrison v. Spurr, 3 AIL 288. 2— Evidenoe— Deolarationa of principal- In an action against one of the makers of a joint and several promissory note, sign- ed by him as surety for the other maker, declarations of the latter made subsequent to giving the note are not evidence againut the defendant. Palmer v. Wilson, SAlf. 443. S— Note for Liquors. In an action on a note for the price of liquors sold, the plaintiff need not prove that he had license to sell. McAnley v. Lawlor, 4 All. 600. 4 —Equities— Holder— Payee. If a promissory note is indorsed over as a security for advances only, the holder is subject to the same equities as the payee. Estahrooks v. McKenzie, V. Ms. 69. 6— Aooeptanoe— Evidence of. A bill of exchange was drawn payable in three equtl instalments. When the first instalment became due, the holder pre- sented it a.', the bank, where it was pay- able; the Cashier paid the first instal- ment and returned the bill to the holder with the following indorsement : " Paid on the within $741, August 12, '61." Held, An acceptance for the remaining instalments. Bertonv. The Central Bank, Hil. T. 1863. 6 — Check, if treated as an inland bill of ex- change, the initialing by party's cashier dms not amount to an acceptance. Soe Check 2. 7-— Forgery relied on as defence— Consideration not required to be proved. In an action on a promissory note for £700 the defence was that the defendant's signa- ture was forged by the plaintiff, and ia order to establish this, evidence was given (inter alia) of a legacy of £5000, payable by the defendant to the plaintiff's wife, which legacy had been paid independentlv 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 considera- tion, us an ingredient to establish the forgery. Tho Judge left the ciuestion of forgery to tho jury, who found a verdict for the plaintiff. Held, That as tho de- BILLS A^D PROMISSORY NOTES. 79 fendant had put his defence on the ground of forgery, the plaintiff was not called upon to prove the consideration, nor was the Judge to leave to the jury whether he had given any consideration for the note. (See Karvey v. Towers, 6 Exoh. 656.) Mathiavetv. Roach, Mich. 7*. 1833. 8— Alteration of note— Evidence when made. A joint note made by two persons appear- ed 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 (defendants) in its altered state ; the oth- er 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 tl.e 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, Trill. T. 1862. 8— Interest recoverable from when. A promissory note dated the 24th August 1857, payable with interest " from first August lust," bears interest from the first August 1856. Calhoun V. Colpitis, Mich. T. 1862. 10— Partnership— Variance— Proof. In an astion against A and B carrying on busincsb in rartnership together with G, under the style of A. & Co., on a promis- sory 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 firm of A. & Go, ; held no variance. The non-joinder of G could only be taken ad- vantage of by plea in abatement. Kelly V. Jialloch, 2 Kerr 69it. 11 — In an action by the payees against the maker of a promissorv note payable to A B G and D, the declaration alleged that the defendant promised to pay the plain- tiffs by the name, style and firm of A B G and D. Hold, That it was not neces- sary to prove that the plaintiffs were part- ners, and that the words " name, stylo and firm" might have been struck out of the declaration. Allen v. McNaughton, 4 All 234. 12— Averment— Proof— Special count— Recovery under common count. If the holder of a bill of exchange relies upon there being no funds in the hands ot the drawee, as an excuse for not pro- Bontiug the bill and giving notice of dis- honour, that fact should be stated in the declaration : and if presentment and no- tice are averred, they must be proved to enable the plaintiff to recover on the spe- cial count. If a bill of exchange is drawn for the balance of an account acknow- ledged to be due to the plaintiff from the drawer who has no funds in the drawee's hands, the plaintiff may recover the amount upon the count on account stated, if, in consequence of not alleging the ex- cuse for presentment and notice, he is un- able to recover upon the special count. Emerson v. Gardner, I All. 451. 12 a —Payable at particular place- Common Gounta In an action by the payee against the maker, u promissory 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 bo made at the place, on or after the time of payment. Merritt v. Woods, Ber. 261. 13— Particulars referring to note— Evi- dence. Where the declaration contained a count by the plaintiff, as indorsee of a note drawn by D. B. iu favour of the defend- ant, and by him indorsed to the plaintiff; with the common money counts; and a bill of particulars had been delivered stating that the action was brought to re- cover the amount of the note. Held, That the plaintiff failing in proof on tho count for tho note, was not entitled to give evidence under tho common counts of an admission by the defendant that he had received funds from D. B. for the purpose of paying the note, and had afterwards promised to pay it Tapley v. McHenry, 2 Kerr 67. 14— Defect supplied by Particulars. Tho omission in a notir^o of aot-off to state that a promissory note, which is otherwise sufficiently described, had been indorsed to the defendant, is not material, where tho defect is supplied by the particulars, and the plaintiff has not been misled. Bwjhec V. McDonald, 2 Kerr 61. 15— Evidence under Common Counts. See Assumpsit. See also Supra 12. 16— Contribution— Liability for— Batisflaction. See Gonsidoration 8. 17— Variance. Gopy of Suuimons and Note — Summary process — Variance in — Oannot be taken 80 BOARDING HOUSE KEEPER. BOND. advantage of on trial if note corrosponds with original which is the record. See Steadman v. ffohtead, 3 Kerr 355. BILL OF LADING. Estoppel by — Evidence allowable to explain. See Carrier 1. Refusal to deliver goods — No bill of lading produced. See Pleading II. 5. Considered as an entire contract. See Con- tract 21. BILL OP PARCELS. Delivery of, after sale of goods — Parol Evi- dence as to quality. See Evidence V. 2. BILL OF SALE. Delivery up of unregistered vessel — Fraud. See Shipping Law 6. BILL IN EQUITY. See Equity. See Practice in Equity. BILL OF EXCEPTIONS. 1 — Quare, Whether the facts stated in a bill of exceptions can be contradicted ? Mills V. Vail, 4 All. 239. 2 — A bill of exceptions improperly obtained in the Court of Common Pious, may be set aside by that Court before return made to a writ of error ; and the order to set it aside may form part of the return. Milh V. Vail, 4 All. 629. BOARD OF HEALTH. Regulations — Not imposing peulty — Omis- sion not invalidating. See Criminal Law 19. BOARDING HOUSE KEEPER. 1-Lien. A boarding house keeper has no lien on the goods of a person occupying rooms in his house under an agreement, for non- payment of his bill. Liffht v. Abel, Trin. T. 1865. 3— Oharaoter of keeping left to Jury- Pleading. In replevin the dorondant pleaded that she kept a public boarding and lodging house, with rooms, etc. fur the reception, public en- tertainment, boarding and lodging of all gueata, boarders, etc., who might come to her house willing to pay an adequate price; that : le plaintiff was accepted aa a guest and boarder in the house for certain rea* sonable reward, and as such guest brought the goods and chattels to the defendant's house, and that she kept and detained them for a lien thereon, to insure pay- ment of an account due to her for lodg- ing and entertainment provided fur the Plaintiff. Replication — de injuria. Held, 'hat the replication did not admit that defendant was an inn-keeper, that on the issue r.iised, it was properly left to the jury to find whether the defendant was an inn-keeper or a lodging house keeper, and whether the plaintiff was received at her house as a traveller, or transient boarder, or as a boarder under a special agreement. Liyht v. Abel, Trin. T. 1865. BODILY HARM. See Criminal Law. DOOMAGE. Liability to Payment of. The Act 10, Vict. c. 72, authorized The South Bay Boom Compauv, to erect booms and piers between certam points on the River St. John, fur securing timber, logs, etc., and the 15th sect, authorized them to receive certain boomage on all timber, logs, etc., which should be " carried or received, or which should enter into or within said piers or booms." Hold, That the owner of a saw-mil' at the mouth of a stream within the bounds of the boom, and whose free access to the River St. John was partially obstructed thereby, had no common law right as a reparian proprietor, to pass logs through the boom to his mill, witnout payment of boomage ; and that as he came within the words of the Act, there was no implied exemption from the charge imposed by the 15th sec. of the Act. South Bay Boom Co, V. Jewett, Eatt. T. 1862. BOND. I. Particular Bonds. Limit Bond. Bail Bond. Rkplkvin Bond. Administration Bond. Arbitration Bond. A B C D E BOND. BOND. 81 II. Miscellaneous. Pabticclar Bonds. A Limit Bond. 1— Limit Bond— Defence— Action by Sheriff. In au action of debt brought by a Sheriff upon a limit bond under 10 and 11 Geo. 4, c. 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 defend- ant rendering himself in discharge of his bail, but nonrdamni/acatus is not a good plea except only where the bond is merely to indemnify. Campbell v. Henan et at, Ber. 72. 2— Assignee 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. Semble, The declaration should state the writ on which the defendant is in custody when the limit bond is taken. Camtron V. Beardelej/, 2 Kerr 598. 9—Damage8— Assessment. In an action on a limit bond, the damages may be assessed by the jury; and the proper rule of damages when the bond has been taken from a person in custody un- der execution is the amount of such exe- oation. McKenzie v. Marsh, 2 Kerr 629. (See Nos. 10, 15.) 4— Limits of Qa,ol— Prisoner going be- yond. The Act 6 Wm. 4, c. 41, authoriied the Justices of the Peace in the several coun- ties to designate certain gaol limits, not to be less than' 40 rods nor to exceed 160 rods from any gaol : the Justices of 0. made an order that the gaol limits of that county should extend to 160 rods from the gaol, and that the sheriff should cause the same to be defined and designated by erecting posts at the extremities. In pur- suance of this order the sheriff marked out limits in 1837, which had been since acted upon. Held, That a limit bond taken in reference thereto, was not for- feited, though the posts erected were after- wards found to bo 174 rods distant fVom the gaol, and the prisoner had gone be- yond the 160 rods, but not beyond the posts — it not appearing that he was aware of the excess. Boyd v. Kennedy, 1 AU. 624. Persons entering into a limit bond are not required to make a measurement to ascer- tain that the limits marked out by the Justices are in due conformity to the law. Ibid. 5— Payment of Sheriff's fee upon— Taking. Payment ot' Sheriff's fee is necessary to the completion of limit bond, and the Sheriff is not bound to discharge defend- ant from gaol and give him the benefit of the Unfits without such fee being paid. See Caldwell v. Winslow, 2 All 203. 6— Validity of— More than double amount— ITon est factum. A limit bond taken under the Act 6 ^ m. 4, c. 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. Pine, 2 All. 215. 7— Defence— iron est fttotiun- Difibr- ent Court. It is no defence under a plea of non est factum in an action on a limit bond, that it was brought 'in a different Court than that in which the original action was brought. Ibid. 8— Court- Suit. An action on a limit bond need not be brought in the Court in which the suit in which the bond was given was brought. James v. Roach, Hil. T. 1864. 8— Taking assignment of first bond— Insufficient surAties- Taking se- cond bond. M. being a prisoner on the limits, escaped without the knowledge of the sheriff or the plaintiff, but returned again to the limits, and the sheriff being dissatisfied with the sureties, took a new limit bond : the plain- tiff afterwards, (knowing that the second bond had been given,) took an assignment of the first bond, brought an action thereon, and recovered a verdict for the debt and costs in the original suit. Held, That he could not afterwards consider M. as re- maining a prisoner on the execution, and take an ossignmont of the second bond and proceed thereon for the escape, even though the sureties in the first bond were insuffioioat. Goodwin v. Murray, 3 All. 69S. 82^ BOND. BOND. Taking a second limit bond is no defence to an action for a previous escape, unless the plaintiff consents to waive such escape. Goodwin v. Murray, 3 All. 595. lO— Aotion by aasignee— Oommon Ve- nire— AaseMment of damiages. In an aotion bj the assignee of a limit bond, to which mon eat factum is pleaded, the common venire to try the issue, is suf- ficient; and the plaintlflf need not have damages assessed, but may take a verdict for nominal damages, and issue execution for the amount of his debt. McElroy v. Getty and another, impleaded with Ellis, 1 San. 261. 106 — Action by- flet fbrth. -FrooeedingB 12 In an aotion by the assignee of a limit bond, it is necessary to set forth in the declaration the proceedings in the origi- nal action in which the defendant was in custody. Baxter v. Sime, Hil. T. 1833. Defence— Action on a limit bond —Second arrest after voluntarily allowing to go at large. If a judgment debtor arrested on a ca. m. is voluntarily allowed by the creditor to go at large, he cannbt be arrested again on a new ca. ta.; and if ho should be so arrested, and give bail for the limits these facts will be a good answer to an action on the limit bond for an escape. Andrews V. Dervdall, Trin. T. 1832. 13— Order for discharge not served. An order for the discharge of an insolvent debtor from 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., dissentiente.) Jaities V. Roach, mi. T. 1864. 14— EsQape— Difibrent county— Judge's wprrant— Limit bond'-fflierifr no ri^ht to take. A debtor in custody of the sheriff of Oarleton on a ca. ta. escaped into the Coiihty of York, and was there arrested under a Judge's warrant for the escape find committed to the custody of the sher- iff of York who gave him the limits. Held, That the sheriff had no right to take a limit bond ; and tho party being at large, the Court rcfp.:od either to set aside the Judge's warrant, or to cancel the limit bond. Ex parte Ilaines, Hil. T. 1862. Bee Bail. (Relief.) | B Bail Bond. 16— Executor of assignee may main- tain action— Evidence- Execu- tion issuing— Amount. The executor of the assignee of a bail- bond may bring an action upon it. Scrib- ner v. Cfibbon, 4 AU. 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 evidence 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 re- lieved by application to the Court. Ibid. 16— Erasure in— Avoidance. Where 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. Weeks v. Hall, mi. T. 1834. C BepIiEvin Bond. 17— Form of. A replevin bond not in form given by the Rules of Court Mich. T. 4 Vic. is bad. Pollock V. Gardner, 2 Kerr 655. 18— Breach— Delay in Froseoutlng- Assignment— Form; A tenant replevied goods distrained for rent in November 1858 ; the landlord ap- peared, and the cause was entered for trial at the circuit in May 1859, 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 neces- sarily a damage. Steen v. Hanson, 4 All. 459. A replevin bond may be assigned on the request of the attorney of the defendant in the aotion of replevin, and may be given by the Sheriff to bis deputy to be delivered to the assignee. Ibid. It is no ground for arresting the judgment in an action on a replevin bond, that the bond as stated in tne declaration, is not in the form prescribed by the Act, if the bond itself is correct. The variance might bo amended even after notice of motion to arrest the judgment. Ibid. 10— Pleadingr— Excuse for breach. In an aetioii by the assignee against the BOND. BOND. 83 obligors of a replevin bond, -tbe breach alleged was that the obligors did not ap- pear at the day mentioned in the condi- tion of the bond (Michaelmas term), and prosecute the suit with effect and without delay. Plea, that the defendant in re- plevin did not appear at the return of the writ (the second Tuesday in October), and in order that the plaintiffs might pro- secute their suit according to the condi- tion of the bond, they sued out a process against the defendant, returnable in Eas- ter term, to which the defendant had ap- peared, and that the suit was at issue and being prosecuted with effect and without delay. Held, on demurrer, That the plea shewed a sufficient excuse for the plain- tiff's breach ; it not being specifically ob- jected by the demurrer that they had not issued process against the defendant on the return of the writ of replevin, or with- in twenty days after. WiUinma v. The St. Andrews Steam MiU Company, 1 All. 580. 20-Claim of property— Inquisitioii— Breach— Imxnsterial miatake in i name. If a defendant in replevin claims property in part of the goods replevied, and the property i? found in him on an inquisi- tion under a writ de proprvetate proban- da, this constitutes a breach of the re- plevin bond, and entitles the defendant to an assignment of it, in order to recover the costs of the proceeding. Berry v. MitcMl, 2 All. 380. Qumre, hs to the disposition by the Sheriff of the goods not claimed by the defend- ant. Ibid. Property replevied was claimed by the de- fendant in the name of " Barry" instead of " Barry ;" the property was found to be in the claimant, and the bond was as- signed to him by his proper name. Held, That the mistake was immaterial. Ibid. 21— Wben bond oannot be assigned to d^endant. When on a writ de proprietate probanda, the finding is for the defendant, the replevin suit is terminated and the replevin bond oannot be assigned to the defendant. Pollock V. Gardiner, 2 Kerr 655. 22— One surety only— Otageotion can- not be taken by plaintiff. A replevin bond with one surety is suffi- cient and may be assigned. Though the sheriff might object to take such a bond, or the defendaQt in the replevin suit to take an assignment of it, the plaintiff in the suit cannot take the objection. Tay- lor V. Burpee, Trin. T. 18dl. 28— Handwriting— Proof— Assignment —Bequest— Defendfudt's Attor- ney. In an action by the assignee proof of the obligor's handwriting is sufficient without calling the subscribing witness. The bond may be assigned at the request of the defendant's attorney. Ibid. 24— Action on bond— Prosecute xvith- out delay— Against iirhom. Defendant M. issued a writ of replevin against B. ; — the present plaintiff put in a claim of property but no writ deprop. probanda^waa issued. The plaintiffaft^r- wards appeared in the replevin suit, but M. did not proceed therein, whereupon the plaintiff took an assignment of the re- plevin bond and brought an action thereon tor not prosecuting the replevin. Held, Bad in arrest of judgment— -the condition of the bond being that M. should prose- cute ,tlie ^uit ^ithoiit delayv(>^'vAgaiQBt B., and not against the plaintiff. Smith V. Millar, mi. T. 1866. 26— Staying proceedings— Power of Judge— Damages. The provision in the Act 4 Wm. 4. c. S8, authorizing the Court to give relief in actions on replevin bonds, having be^ omitted from the Act 13 'Vic. c. 53, which repealed the former Act, a Judge has no power, except under special ciroumstan' ces, to stay the prooeediqgs ip such an action ; where it ts brought for the breach of the condition of the bond, to prosecute the replevin suit without delay, aqd t];te plaintiffs procedings are regular. The Court willnot enquire wheuer the de- fendant in the replevin suit has, or has not sustained damage by the breach of the bond. Belts v. Mc Uowan, East. T. 1872. D Administration Bond. 26— Application to put in suit. In an application to put an admioistrotion bond in suit, the Court will pot determine whether there has been a breach of the bond. If the applicant make out a |p^^<7, facie case of breach, and that he is a pro- per 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. Ihid. 84 BOND. BOUNDARY. The ooansel moving for the assignment is not bound to shew that he is authorized to make the application. In re Hunter, 1 Han. 233. It is sufficient to shew the substance of the proceedings against the administrate r in the Probate Court without producing a copy of them. Ibid. 27— Breach— Non-payment of debt. The non-payment of a debt does not, per 86, constitute a breach of an administra- tion bond, " well and truly to administer according to law" the goods and chattels of the intestate. Sherlock \, McGee, 1 All. 116. 28— Devastavit— Bequisite statement. In an action on an administration bond under the Act 3 Vic. c. 61, assigning as a breach a devastavit by the administra- tor, it must be stated that the estate of the intestate has sustained injury thereby to a certain amount. Sherlock v. Mc Gee, 1 All. 346. An allegation in- the assignment of a breach that goods and chattels came to the hands of the defendant as adminiatrator, neces- sarily shews that they were the goods of the intestate. Ibid. E Abbitbation Bond. 2& -Revocation. One of two persons on the same side may revoke a joint submission to arbitration, and such revocation will be a forfeiture of a joint and several bond by both, con- ditioned to stand to, obey and perform the award. Hatheway v. Cliff, 2 All. 267. 80— Breach— Pleading. Particular breach in bond for perfor- mance of award, must be stated in decla- ration. See Pleading I. 43. II. Miscellaneous. 81— Impeached for firaudulent repre- sentation—What defendant may prove. Where a bond given for the purchase money of a lot of land, is impeached for fraud, on the ground that there was a fraudu- lent representation at the time of the bar- gain, and previous to the giving of the deed, as to a parcel of land included in the purchase, it must be affirmatively shewn as one of the requisites of such a defence, that the deed does not iu fact contain the land bargained for. Siuon V. Merithew, 3 Kerr 284. 82— Escrow- Non-Execution by one of Obligors. The condition of a bond recited that five persons named as obligors, had agreed to secure the paym'^nt of a sum of money to the plaintiff; one of the persons named did not execute the bond. Held, That in the absence ol' any circumstances at- tending the execution, beyond the mere fact of one of the parties named not hav- ing signed it, there was not sufficient evidence to be left to the jury that the bond was delivered as an escrow. Held also. That it was the joint bond of the obligors who executed it, and that the omission of one of the persons named in the bond to execute it, did not render it merely the several bond of each obligor who did. Keator v. Scovil, 3 Kerr 647. S3 -Crown Bond— Neglect to enforce payment— Sureties- Application for relief. One of the conditions of a bond given to the Grown by a deputy postmaster, re- quired 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 post- master. At the time of his resignation, a postmaster was a defaulter, and died in- solvent, about twenty-one months after. No proceedings were taken against him to enforce payment, though he was ap- plied to several times, and promised pay- ment, and no notice of his indebtedness was given to his sureties till after his death. Hold, That his sureties were not entitled to be relieved from the bond un- der the 33 Hen. 8, o. 39, s. 79. The Queen v. Hammond and another, 1 Han, 33. 84— Corporation— Bond to— Condition -Notice — Seal of Company not necessary. See i'rinoipal and Surety 1. 36— Obligees— Action by one. A bond conditioned for the payment of money to A. or B., or either of tnem, can- not be sued on in the name of one of the obligees, unless the other is dead. See Hazen v. Drummond, 4 All. 267. BOND & WARRANT OF ATTORNEY. See Warrant of Attorney. BOUNDARY, See Crown Qraqt, BREACH OF AGREEMENT. BRITISH N. AMERICA ACT. 85 BOUNDARY LINES. 1— Agreement as to— Binding opera- **<>»• „ ,. . . Where the respective owners of adjoining lots agree by parol to a division line, it is binding upon them, though it may differ from a lino to which they had previously occupied. Lawrence v. McDowell, Ber. 283. 2 — Where a boundary line has been run between adjoining proprietors of land by a surveyor mutually employed by them and acted upon for a number of years, and conveyances made according to it, it is binding upon them though it was i:^- correctly run and deviated from the de- Bcription in the deeds under which they held, and gave one of the parties a much greater quantity of land than he was en- titled unto. Doe dem. Carr v. Mc CuU lough, 1 Kerr 460. 3 — Running and marking a line by one party, not in accordance with the true line be- tween adjoining grants, having only been assented to on the condition that the true line should be ascertained and run, can- not establish it as a conventional bounda- ry until it is acquiesced in and acted on by both parties. Bevier v. Govane, 4 AU. 144. 4— Ascertained marks— Controlling courses. 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, controls the course and distance of the side line of H's grant. Hanson v. Ma- honey, 2 Han. 11. Dispute as to boundary — Question for Jury. See Trespass II. 29. BREACH. Bond. See Bond. Particular breach in bond for performance of an award must be stated in declaration. See Pleading I. 43. Arbitration Bond. See Bond 27. Covenant. See Pleading I. Scire Facias on inquisition. See Practice BREACH OF AGREEMENT. See Agreement. 1— Unpaid instalment— Damages- Cross Action. In an action for breach of an agreement to convey property to the plaintiff on pay- ment to the defendant of a sum of money by instalments, and which agreement the defendant had disabled himself from per- forming, before the last instalment was due. Held, That the plaintiff not hav- ing paid the last instalment, could not recover it as part of the damages for breach of the agreement. Being part of the same transaction, the defendant is entitled to have the unpaid instalment deducted, and is not driven to bring a cross action for it. Gilbert v. Campbell, 2 Han. 65. 2— Partial Breach— Action. Whor.! goods are delivered under an agree- ment to be paid for by endorsed notes payable days after delivery, the ven- dor may, before the expiration of the term ■!'.' credit, sustain an action against the vendee for a partial breach of his agree- ment, til" vebdee having in part paid for the goods according to agreement. Brown V. Frtnk, Ber. 363. BREAKING OPEN DOORS. Raising a window whereby a constable was enabled to reach and unbolt the door on the inside of a house, and thereby en- ter it, is a breaking. Smith v. Burpee, Mich. T. 1872. See Distress — Notice of Action — Criminal Law — Constable. Breaking into field under lawful fence — What does not constitute. See Trespass II. 2. BRITISH NORTH AMERICA ACT 1867. 1— Provincial Legislatures— Powers of —Insolvency. Insolvency being one of the subjects upon which the exclusive right to legislate is vested in the Parliament of Canada, the Legislature of New Brunswick has no right to pass an Act relating thereto, since the " British North America Act" came in force. Reg. v. Chandler, 1 Han. 648. 2— Imprisonment for debt. The Act 33 Vic. o. 22 relating to imprison- ment for debt, does not come within the prohibition of the 91st sec. of the British North America Act 1867, paragraph " Bakruptcy and Insolvency." Valentine V. Hazleton. Equity 1870. (See Practice in Equity 22. Same case.) 86 BRITISH N. AMERICA ACT. BRITISH STATUTES. 3— Bailwajrs. The Provincial Act 33 Vic. c. 47, autho- rizing the issue of Debentures to the Houlton Branch Railway Company, to aid in the construction of a railway from Houlton, in the State of Maine to the New Brunswick and Canaua Railway in this Province. Held, To be beyond the powers of the local Legislature under tiie "British North America Act 1867." See 92. Sub aoc. 10. Ex parte. Marku, mi. T. :872. 4 — Plaintiffs were incorporated in 1851 by an Act of the Legislature of New Bruns- wick for tlie purpose of constructing a railway from St. John to the boundary of the United Stat«s ; the stock not having been subscribed, nor the assessments on the stockholdci*s made according to the conditions of the Act, and it being doubt- ful whether subscribers for stock were liable to pay the calls, another Act (32 Vic c. 54) was passed to obviate the ob- jections — declaring in what manner the subscribers for stock should be liable. Held, That this Act was not beyond the powers of the local Legislature under "The British North America Act." Sec. 92. Sub Sec. 10. E. and iV. Ame- rican Railway Co, v. Thomas. Hil. T. 1872. 6— Branch Pilots St. John— Begula- tiona— Authority to make. By Act 3 Vic. c. 70, the Corporation of Saint John was authorized to make laws and ordinances for the regulation of the Branch Pilots of St. John. Under this authority bye-laws were made before the passing of " The British North America Act 1867." Afterwards in 1869 the Corporation made another bye-law relat- ing to pilots. Hold, That the regulation of pilotage belonged to the Parliament of Canada under the Olst 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 f)OWors of the Corporation to make bye- aws relating to pilotage ceased, and there- fore the bye-law of 1869 was ultra viri:» (per Fisher and Wetmore, J. J.) that under the 129th Section of the British North America Act, the power of thu Corporation to make byo-Iaws under the Act 3 Vic. c. 70 was continued until tho Parliament of ( :uuada legislate on the sub- ject, and therefore the byo-law was valid. Hey. V. Ffittn, Ilil. T. 1873. The Act 33 Vic. c. 47 i^ ultra vires under the British North America Act 1867. Section 92. Sub sec. 10. Ruff. v. Dow, Hil. T. 1867. (See Supra Ex parte Marks.) Provisions for Non Sectarian Schoolc. Sec Common School Act. Acts of local Legislature relating to attend- ance of Grand and Petit Jurors in crimi- nal matters in County Courts are not vlfru vires. See County Court 10. BRITISH STATUTES. 1— Statutes not in force in Keiw Brund- wick. The Act of Parliament 7 Geo. 2, c. 20, authorizing a stay of proceedings iu ejectment on a mortgage, on payment of the debt and costs, does not extend to this Province. (But see 2 Wm. 4, c. 23, ». 3.) Doe dem Owen v. Hatheway, Hil. t. 1827. 2— The Acts of Parliament 5 Geo. 2, c. 19, and 13 Goq. 2, o. 18, reifying to the pro- ceedings for certiorari, do not oxtona to this Province. Ex parte Ritchie, 2 Kerr 75. Ex parte Bustin, 2 All. 211. 3— Tho Statute 1 Rich. 2, cap. 12, under which a Sheriff was held liable in an action of debt for an escape, is not applicable to this Province. Wihun v. Jones, 1 All. 658. 4— The Statute 29 Eliz. c. 4, relating to Sheriff's fees, is not in force in this Pro- vince. Kavanagh v. Phelun, 1 Kerr 472. 5— The Act 2 Geo 2, c. 23, requiring the delivery of bill o^' costs a mouth before action, is not in force here. See No. 16. 6— The Statute 33 Hon. 8, c 39, s. 60, giv- ing to bonds to tho King the force and effect of a Statute Staple, extends to this Province. Rex v. MvLauqhlin, Mirh. T. 1836. 7— The Statute of Uses V Hen. 8, c. 10, and the Statute of Enrolments 27 Hon. 8, c. 16, extend to and are in force in Umh Province. Doe dem Hanmnqton v. Mr- Fadden, Bert. 153. 8— The Statute S3 Hon. 8, o. 39, a. 79, au- thorising tho Court of Exchequer to givu relief to Crown debtors, extends to this Province, and by virtue thereof tho Su- preme Court may relieve from an estri'iit- ed recognizance (Parker, J., dubitantv). Rex V. Appleby, Ber. 397. BYE LAW. BYE LAW. 8T 3choolc. Sec Jontu, 1 All. 9— The Act of Parliament 9 and 10 Wm. 3, 0. 15, relating to submissions to arbitra- tion, held to be in force. (See No. 13.) Doe dem Allen v. Murray, 2 Xerr 359. 10— The Statutes 43 Eliz. c. 6, and 13 Gar. 2, 0. 2, relating to costs, are in force in this Province. Kelli/[ v. Jones, 2 All. 473 ; Gilbert v. Sayre, 2 All. 512. 11— The Statute 43 Eliz. c. 6, authorising a Judge to certify to deprive a plaintiff of costs, being part of the practice of the Court of King's Bench when the Supreme Court of this Province was established, is in force hero, and is not affected by a subsequent repeal of it in England. Kelfi/ V. Jones, 2 All. 473. 12— The Act of Parliament 3 Jac. 1, c. 7, requiring the delivery of an attorney's bill of costs before action brought, ex- tends to this Province. See No. 16. 13— The Statute 9 and 10 Wm. 3, c. 15, docs not apply to references under the Act of Assembly. See Brown v. Hard- ing, 3 All. 351. 14 — Certificate under English Bankrupt Act pleadable in this Province. See Bankrupt. \fi—quaire, Whether the Statute 13 Eliz. c. 10, applies to Church Corporations in this Province ? See Bedell v. Rector &c, of Christ Church, Fredericton, 3 All. 217. 16— Bill of OoBts— Delivery of. The Act of Parliament 3 Jac. 1, c. 7, re- quiring the delivery of an attorney's bill of costs before action brought, extends to this Province, but the Act 2 Geo. 2, c. 23, requiring the delivery a month before action, is not in ibrco here. James v. McLean, 3 All. 164. 17 — The construction given in England to the Statute 22 and 23 Chas. 2, c. 9, is part of the law of this Province, and is not affected by the Act of Assembly 13 Vic. c. 32. See Costs 24. BYELAW. Suinj, for calls-^No bye-laws made. See Joint Stock Company. See Fredericton, (City of.) -Proof— Neoeuity of. In a prosecution for a penalty under a byo-law of a Corporation, .he bye-law must bo proved. Reg. y. Wortman, 4 All. 73. 2 — ^In a prosecution tried before the Mayor of Fredericton for violating a bye-law of the Corporation, the bye-law must be prov- ed. Ex parte Mtdligan Mich. T. 1862. 3— Not fixing time for payment— 8eU- ing without License— Penalty— Bight to recover. A Bye Law of Fredericton, to regulate the public market, requii'ed the stalls in the market to be leased annually, and de- clared that the lessee of a stall should receive from the Mayor a license to occu- py, and that any person occupying with- out license should be liable to a penalty. Held, In a prosecution for the penalty, that the only question was whether the defendant had a license. Ex parte Mulli- gan, 2 All. 583. Where the bye law fixes no time for pay- ment of the purchase money of a stall, it may be done by conditions of sale. Ibid. (See Justice of the Peace.) 4— Power to make Bye-Laws— Autho- rity to impose a toll. Power given to the Corporation of Fred- ericton by the Act. 22 Vic. c. 8, to make bye-laws '* to regulate the anchorage, lading and unlading of vessels'' does not authorize the imposition of a toll for anchorage. Reg. v. Dowling, Mich. T. 18G2. 6— Corporation limiting by Oontraot— Their power to make bye-laws. The Corporation of St. John being by Charter the conservators of the harbour, with power to regulate the navigation, anchoring and fastening of vessels, and to make bye-laws, etc., {.^ranted to the plaintiff the right to build a wharf ex- tending into the harbour, and to receive the wharfage and emoluments to be de- rived from vessels lying at such wharf — tho plaintiff built a wharf, and the Cor- poration afterwards passed a bye-law that no vessel should lie at (Lat wharf with her bow to tho south ; in consequence of which the plaintiff lost the wharfage of a vessel. Hold, In an action against the Corporation, that they had no right to limit by contract their power to make bye-laws relative to matters within their control under the charter, and that the plaintiff's grant must be taken subject to their right to make such bye-laws fVom time to time, as they should deem neces- sary for the anchorage of vessels. Wal' kitr V. Majfor, dbc. of St. John. Nil. T. 1872. 88 CARRIER. CARRIER. Power in Corporation St. John to make bye-laws for pilotage since passing of " The British North America ^c<1867." See The British North America Act 1867. CALLS. See Winding Up Act — Note may be given for assessment due on. See Bills and Notes I. 9. CANADA. Jurisdiction — Seizure of timber. See Tim- ber. CANADIAN COURT. See Judgment III. CAPIAS. See Practice IV. Misnomer. See Identity. Wrong Name — Pleading. See Pleading II. 20. It is not an irregularity in a capias ad res- pondendum, that it requires the defend- ant to answer the plaintiff in a plea of debt, instead of trespass, the usual form. Campbell v. Mossop, 0, Ms. 164. CARLETON WATER WORKS. Issuing Notes. See Mandamus 9. CARRIER. 1— Master of Ship— Loss by Jettison. The master of a ship who has signed the usual bill of lading, is not liable for a loss by the jettison of goods, which have been laden on deck with the knowledge and consent of the shipper and consignee. Such master is not eeitopped by the bill of lading {torn shewing that the goods are to be laden on deck. Johnston and an- other V. Crane, 1 Kerr 356. 2 — The master of a vessel in not liable for the loss occasioned by the jettison of goods, which have boon laden on the deck with the privity and assent of the shipper. Johnston V. Crane, 2 Kerr 39. Under the facts of this case as already re- ported, ante, vol, 1, p. 356, the Court did not think there was sufficient ground fur reconsidering their former judgment, though they wore not fully agreed upon the question, whether the shipper's assent to the goods being taken on deck would under all circumstances be a bar to his recovery for a loss by jettison. Johnson V. Crane, 2 Kerr 39. 8— Loss of Lumber— Jus tertii. By agreement between the plaintiff and M., the latter was tQ furnish plaintiff with supplies to get lumber, which was to be the property of M., and was marked ac- cordingly : a portion of the lumber was sold, and M. took part of the proceeds — allowing the plaintiff to receive the re- mainder — and afterwards sued him for the balance of his account for supplies. Held, That M. had thereby repudiated all claim to the rest of the lumber, and that in an action against the defendant as carrier for loss of part of it, he could not set up the right of property in M. under the agreement, as an answer to the action. Forbes v. ffoHz, 4 All. 611. 4— Bailway Company— Liability. The Commissioners of E. and N. Ameri- can Railway in the absence of any regu- lations approved 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. Willis v. The Com- missioners of the European and North American Railway, 2 Han. 157. 6— Delivery to carrier— Aoceptance for vender. A delivery of goods by a vendor to a common carrier without any specific di- rection or authority from the vendee, will not amount to an acceptance by the latter within the Statute of Frauds. Daley v. Marks, Ber. 346. 6— Delivery not complete— Loss. Plaintiff sent boards alongside of defend- ant's vessel to be shipped, but before being taken on board, they had to be sur- veyed and classified by the plaintiff, and before this was done, they were stolen. Held, That until the survey and classifi- cation, thoy wore not in defendant's pos- session, and ho was not liable for their loss. Cushivg v. Roberts, Ilil. T. 1861. 7— ITegligenoe of servants. A common carrier is liable for the negli- Eonoo of his servants in taking goods on oard his vessel in his absence, though ho may have directed them not to receive goods — the plaintiff having no notice of such instructions. Street v. Morrison, East. T. 1862. CERTIORARI. CERTIORARI. 89 8— xreglig^enoe in ludng improper gear. In patting a large cask of brandy on board a vessel from a wharf, a carrier used can-hooks. In lowering the cask from th^ wharf one of the chains (by which the hooks held the cask) broke and the cask fell into the hold and was de- stroyed. Held, That it was negligence to use can-hooks instead of slings to lower the cask. Street t. Morriton, Ecut. T. 1862. CA. SA. See Bail 7, 1». Practice IV. CASUAL EJECTOR. Judgment against. See Ejectment III. " Practice VIII. CAVEAT EMPTOR Sale and conveyance of land — No Fraud — Eviction of purchaser by title paramount — Action for money had and received for purchase money, not maintainable. See Assumpsit 24. CERTAINTY. See Justice of the Peace. (Conviction.) CERTIFICATE OF JUDGE. See Judge. CERTIFIED COPIES OF DEEDS. See Evidence VII. Semble, Whether certified copies of deeds are properly receivable in evidence under Rev. Stat. c. 112, B. 12, without a new affidavit and notice since first trial of cause. See Gilbert v. Catnjtbett, 2 Han. 66. CERTIFIED FEES. Gonstable — Right to Recover. See Criminal Law IV. CERTIORARI. I. When it Liis. Whin Obantbd. II. TiMB or Appuoation. Dilat. III. MrSOILLANIOUSi. I. Whin it Liaa — Whin Gbantbd. 1— Prooeedingi of Trusteai of Sohooli. The Supreme Court has power to graut « ctrttorari to remove the prooeedingi of 12 trustees of schools under the Parish School Act 16 Vic. c. 40, and to quash them if defective. Ex parte Joc«lj/n, 2 AU. 637. 2— Judgment of 'City Court. A certiorari lies to remove a judgment from the City Court of Saint John ; and the power will be exercised where the case involves questions as to the right of real property and the construction of Statutes, though the amount in dbputo is trifiing. Ex parte McNichol, 3 All. 493. a— Important T^rinoiple— Oity Court. Where an important principle was in- volved in a case tried before the City Court of St. John, the Court granted a certiorari to bring up the proceedings, though the case might have been reviewed before a Judge at Chambers. Ex parte Foye, Ea»t. T. 1873. 3— Proceedings of Justice of Peaoe. Qusere, Whether a certiorari to remove proceedings before a Justice of the Peaoe in a civil suit, is not taken away by the Rev. Stat. o. 137. But if not, some rea- son must be shewn for not proceeding by review. Ex parte Ellis, 3 AU. QOl. 4— Insolvent Debtors Act. A certiorari lies to remove into Supreme Court the proceedings before Justices under the Insolvent Confined Debtors Act. White V. Coleman, 4 All. 630. 6— Insolvent Aot of 1860. A demand was made upon « 'debtor un- der sect. 14 of the Insolvent Act 1869, requiring him to make an assignment of his estate and efiiects for the benefit of his creditors. The debtor presented a peti- tion under beotion 16 to the County Court Judge, upon hearing which he decided that the demand was inoperative, and ordered that no fVirther proceedings be taken. Held, That aa there was an ap- peal from the Judge's decision, a certio- rari would not lie to remove the proceed- ings. Ex parte Thomas, 2 Han. 163. 0— Summary conviotions. The power given to a Judge by the Rev. Stat. c. 161, 8. 32, to hear appeals firom summary convictions before Justices of the Peaue, does not take away the right of the Supreme Court to grant a certiorari to remove such convictions. En parte Montgomery, 3 AU, 149. Qitmre, Whether such mode of appeal is ap- Slioable to ofiisnoes not created by the lev, Stat. Also whether, in deciding a case on appeal, the Judge !■ to be gov- 90 OEBTIORARI. CERTIORARI. erned by strict legal principles or by tbe equitable principles on which reviews of civil cases are determined? Ex parte Montgomery, 3 AU. 149. 7— ComniiBBionerB alterine^ road. The granting a ceWtbrart being discretion- ary it was refused to bring up the pro- ceedings for the alteration of a public road, where the applicant had allowed one term to elapse, and tlie road had been opened in the moan time. Rex v. Heavi- tide, Hil. T. 1833. 8— Senate of Umveraity. A certiorari is only granted to bring up the judicial acts of some inferior tribu- nal. The acts of the Senate of the Uni- versity of New Brunswick in dismissing one of the professors are not judicial acts, and therefore not subjected to be reviewed by this Court. Ex parte Ja- cob, Trin. T. 1861. 8— Frooeedings before Police Uagis- trate, St. John. A conviction before the Police Magistrate of St. John for a breach of the bye-laws of the Corporation cannot be removed by certiorari, the provisions of the 36th and 37th sections of the Portand Police Act 11 Vic. c. 12, by which the certiorari is taken away, and an appeal given being incorporated in the St. John Police Act 12 Vic. c. 18. Ex parte HarUy, East. T. 1862. 10— AflseaBment— Water Oommiasion- ers of St. John. Certiorari ref\ised to bring up an assess- ment of the Water Commissioners of St. John under the Act 18 Vic. o. 38, though the certiorari was not taken away by the Act. An appeal to the Common Conn- oil being given to persons aggrieved by the assessment. Ex parte Noiolin, Trin. T. 1864. 11— Question of Fact. A certiorari will not in general be grant- ed, when tuo case in uie Court below depends on a mere question of fact. Lord V. Turner 2 Han. 13. 11. TiM> OF Application — Dklay. 1 — The time for granting a certiorari to re- move proceedings of Trustees of Schools under Parish School Act 16 Vict. c. 40, is not limited by Act 13 Vic. o. 30, s. 2. E» parte Joceljfn, 2 AU. 687. 2 — An application for a certiorari to remove proceedings under the Highway Act 13 Vic. c. 4, though no time is limited by law, should be made without unreasonable delay. A delay of one term held not unreasonable. Ex parte Herbert, 3 All. 108. 3 — ^Where an appeal from a summary con- viction is made to a Judge of the Court under the 1 Rev. Stat. c. 161, s. 32, and refused by him, a subsequent application to this Court for a certiorari should in general be made at the first term after- wards. Ex parte 0' Regan, ^ All. 2Q1. The Court refused to interfere in such a case after the lapse of one term, where the conviction appeared to be sufficient on the merits. Ibid. 4 — An application for a certiorari should be made at the first term after the convic- tion ; but where the Justice had no juris- diction in the matter, a certiorari was granted, though a term had elapsed. Ex parte Mulhem, 4 AU. ?59. 5 — An application for a certiorari to remove an assessment, should be made promptly. Where a party had notice of an assess- ment in December, and his property was sold under execution for non-payment early in February, an application made in Laster term for a certiorari to remove the proceedings was refused, though the assessment appeared to have been impro- perly made. Ex parte Gerow, 4 All. 269. 6 — When an order of affiliation was made in January 1865, but the defendant did not enter into recognizance to support the child, and in January 1866 the Sessions adjudged him to be imprisoned for not obeying the order. Held, Too late to apply for a certiorari to remove the pro- ceedings for an alleged defect in the order of affiliation. Ex parte Kennedy, Hil, T. 1866. 7— Improper Entry— Delay. Where a rule niti for a certiorari was granted in Easter Term, and the rule improperly entered Ob the pleas side of the Court, in consequence of which it was discharged in Trinity Term ; it is too late to renew the application in Michaelmas Term, and Qusere, Whether it would have been granted in Trinity Term. i?o- bin» v. Watts, Mich. T. 1866. 8— When in time. When an asBeument was ordered on the CERTIORARI. CERTIORARI. 91 20th October and a role nisi for a certio- rari obtained at Chambers on 27th Feb- ruary returnable in Easter, the Court held the application to be in time. lie- gina v. The A»sesaor» of Rates, Kings, 1 JIan. 520. 8— Irregularity— Lateness in applica- tion. Where the proceedings of Commissioners appointed to lay out a street under the authority of an Act of Assembly, had been filed in a public office, as directed by the Act, in November 1864, and the par- tics objecting to the laying out, and whose property had been taken by the Commis- Hioners, applied to the Legislature for compensation in the following year. Held, That it was too late afterwards in 1865 to apply for a certiorari to bring up the proceedings of the Commissioners on the ground of irregularity. Reg. v. Flewel- ling, East. T. 1866. 10— Refusal to act— Payment of services. It is no objection to the proceedings of the Commissioners that they refused to act until the Corporation of Saint John guaranteed the payment for their ser- vices, the street being in the city and the Act under which they proceeded having made no provision for paying them. Ibid. III. Miscellaneous. 1— Bond before appeal— Certiorari not taken away oy Act of Assembly. The Act 18 Vic. c. 36, to prevent the traffic in intoxicating liquors, authorised a Justice of the Peace to impose fines and to order liquors to be destroyed in certain cases ; and the 17th section declared that no order of the Supreme Court, or any other Court for review or removal, or other appeal frot:* the judgment of the Justice, should be allowed, unless the ap- pellant should give notice to the Justice of his intention to appeal, and within ten days after the conviction execute a bond with sureties to prosecute the appeal with efibot, and to pay the fine and costs imposed upon him, in case the conviction was affirmed. Held, That the fvrtiorari not being taken nwoy by the Act, it was not necessary to give a bond to proBoouto as a preliminary proceeding to applying for a certiorari to remove a oouviotioQ under the Act. Ex parte Ctiff, Mirk. T. 1856. 2— Allowing return to be amended— Ordenng Airther Certiorari. A certiorari having issued to bring up the proceedings and order made in the case of an insolvent confined debtor, the Justices stated in the return that the or- der was not in their possession, the return was allowed to be amended, by the Jus- tices stating the substance of the order, if in their power to do so, or if not, by stating how the original order went out of their possession, or what has become of it, or otherwise, that a further certio- rari might issue. Reg. v. Vail, East. T. 1861. 3— Costs -Conviction. When a rule nisi for a certiorari to re- move a conviction is discharged, the suc- cessful party is not entitled to the costs of opposing the rule. Ex parte Daly, 1 All. 435. 4— Judge in vacation. A Juage of Supreme Court may grant a rule nisi for a certiorari returnable in Term. Ex parte McNeiU, 3 All. 493. 6— Special provision in Act. A Judge in vacation has no authority to make an order to shew cause in Term why a certiorari should not issue to remove proceedings under the Act 13 Vic. o. 53. Ex parte Irvine, 2 All. 516. 6— Short Service- Enlarging Bule^ Where an order nisi for a certiorari had been served only four days before the first day of the term at which it was re- turnable, the Court refused to make the rule absolute, and enlarged it till the next term. Ex parte Lyons, Mich, T. 1866. 7— Security for costs— School Aot— Provisions of other Act— Ap- plication of. The provisions in the School Aot 21 Vic. c. 9, s. 16, that the proceedings for levy- ing and collecting assessments shall bo the same as provided for County and Pa- rish rates, applies to the mode, machinery and forms by which these rates are levied and collected, and does not require secu- rity to be given for costs before a certio- rari is granted to remove the assessment, nor give an appeal to the Sessions, nn provided in the case of County rates by the Rev. Stat. o. 53, ss. 6, 22. Reg. v. Jardine, Mich. T. 1863. 8 — The provisions of 1 Rev. Stat. o. 53, s. 6, requiring security for costs before granting a certiorari to remove a rate is not incorporated in the Parish School 98 CERTIORARI. CH£CK. Act. Reg. ▼. Assettors of Rates, King's Count}/, 1 Han. 520. 0— Betum not under seal— Ol^eotion. A party appearing to support a conviction cannot object to the cause being proceed- ed with, because the Justice's return to the certiorari is not under seal. Regina V. Oulton, 1 All 269. 10— Application to Judge at Chambers — jPraotioe. On an application to a Judge at Cham- bers for a certiorari, there should be a summons or rule nisi in the first instance. Ex parte Howell, 1 All. 584. 11— Contradictory Affidavit& Where the affidavits in answer to an ap- plication for a certiorari to remove the proceedings in a prosecution under the Act 5 Wm. 4, c. 2, for non-performance of statute labour, stated that the party had been dulf/ notified; the Court made the rule absolute in order to ascertain what the notice was — the applicant in his affidavit having denied notice. Ex parte Ferguson, 1 All. 663. IS— Betum firom Justice. A return from Justice should be before the Court. See Lord v. Turner, 2 Han.Vi. IS— Benewal of application. When a rule for a certiorari is discharged because the affidavits are improperly en- titled, the application may be renewed on amended amdavits. Ex parte Bustvn, 2 All. 211. M-Beflisal. An application for certiorari was refused where three former applications had failed, twice in consequence of a defect in the jurat of the affidavit, and onoe in con- sequence of the rule having been impro- perly granted by a Judge at Chambers. Ex parte Irvine, 2 All. 519. 15— Copies of prooeedinss- Betum. It is the duty of School Trustees to keep a minute of their proceedings, and if the original orders have been filed with the Clerk of the Peace or Assessors, copies may bo returned with the certiorari. Ex parte Jocelyn, 2 All. 637. 16— Mistake in name of applicant- Quashing— Ordering new Cer- tiorari Where the Christian name of the appli- cant for a certiorari was misstated in the writ, it was quashed, and a now certiorari ordered to issue. Reg. v. Waiters, Hil. T. 1866. 17— Affidavits— When may be used.' After the return of a certiorari, affidavits may be used to shew want of jurisdiction in the Justice, when that fact does not appear on the return. Reg. v. Simmons, Trin. T. 1872. 18— Betumable when— Fractioe. By the practice of the Court a certiorari is returnable (unless otherwise ordered) at the term next after that in which the rule for it is granted ; and if not issued and served before such term, it is too late. Reg. V. Harshman, Mich. T. 1872. 18— Contradicting Betum— Use of affi- davits. The affidavits on which a certiorari was obtained cannot be referred to, for the purpose of contradicting the return. Ibid. (See Allen's Notes to The King v. Justices of York. C. Ms. 110.) Statute 13, Geo. 2, c. 18 not in force. See British Statutes. CESTUI QUE TRUST. Relatir i of Trustee and Cestui que Trust crec jd. See Equity 2 a. CHALLENGE. See Jury. To fight a DueL Whether a letter be a challenge to fight a duel or not, left as question for the jury. It is no objection that the question has been left to them when their finding ac- cords with the Judge's own opinion. Dolby V. Kinnear, 1 Kerr 480. CHAMBER PRACTICE. Attendance of competent agent — Taking out summons — One sufficient for attend- See General Rules 9, 63. anoe. CHATTEL. Unrep.isir, . .* ;i»; — Transfer — Revesting prop«»:i - ..■4'idencft. See Shipping Lav,' e. Trees severnu ^.cum land. See Assumpsit 49. Manure, a chattel. Sec Trover 15, 16. CHECK. 1 — An unstamped cheek drawn upon a per- son, not being a chartered or licensed banker, or the manager of a savings' bank, is void under the Canadian Statute 31 Vic, 0. 9, and cannot be received as cvi- CHURCH OF ENGLAND. 93 rt, affidavits dence of payment. 1 Eon. 615. Gandy v. Staples, Use of affi- 1 force. See 2— Initialing of by Cashier— Aooept- anoe^^Hset-oft. In an action on a bill of exchange, the defendant claimed to set off 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 1867 L. gave the check so initialed to Q. 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 agree- ment by the plaintiffs to pay the amount to L., it was only a chose in action which the defendant could not avail himself of in this suit. Commercial Bank v. Flem- ing, m. T. 1S72. CHILD. See Illegitimate Child. CHOSE IN ACTION. Beoognition of assignment. B. agreed, bv a note in writing, to pay A. £20, in lumber, by a certain day, oefore which time A. assigned the contract to C. Held, That B. was not bound to re-: cognize the assignment, but might deliver the timber to A. which would be a good discharge. See Green v. WilUston, 3 Kerr 58. Check operating as an agreement by plain- tiff to pay amount. See Check 2. CHURCH OF ENGLAND. 1— Land granted as a Qlebe— Trespass — ^ht of Beotor. 77here land is granted to the Rector, Church Wardens and Vestry of a Parish, incorporated under the Act 29 Geo. 3, c. 1, as a glebe for the use of the Rector, and he has been inducted and taken possession, an action of trespass for entering on the land and cutting down trees, must be brought in the name of the Rector. Rrc tor rf-c. of St. Stephens v. Tortelot, 1 Kerr 637. |2— Style— ITo Beotor appointed— Grant. A Church Corporation may exist under the Act 29 Geo. 3, o. 1, by the stylo of " the Hector, Church Wardens and Ves- try of &c.," though no Rector has at the time been appointed, and a grant to the Corporation by that name is good. Doe dem. Rector dkc. of Qiteensbury v. Guion, 1 AU. 6. 8— Powers of Church Wardens and Vestry. The Church Wardens and Vestry may exercise the powers given to the Rector, Church Wardens and Vestry by the Act 29 Geo. 3, c. 1, as well where there never has been a Rector appointed, as where a vacancy is created by the death or ab- sence of the Rector. Ibid. 4— Grant— Intention. A grant of land to the Rector, Church Wardens and Vestry of a Parish " for a glebe," sufficiently indicates that it is in- tended to be for the use and benefit of the Rector under the Act 56 Geo. 3, c. 11. Rector dec. nfHamptony, Titus, 1 AU. 278. 6— Beotor- Incumbenoy— Legal Estate. Under the provisions ot the Act 56 Geo. 3, c. 11, the Rector of a Parish has, dur- ing his incumbency, a legal estate of free- hold in glebe lands granted to the Church Corporation, and may uAke leases thereof, binding upon himself, without the assent of the Corporation. (Street J., dissenti- ente.) Ibid, f 6— Lease by Beotor. Qurnre, Whether a lease of glebe lands by the Rector and Church Corporation for a term not exceeding 21 years would be binding on a succeeding Rector ? Held, Per Street J., that it would. Semble, Per Carter J., that the lease should be confirmed by the Ordinary. Ibid. 7— Property in Trees— Trover. The property in the trees growing on glebe lands is in the Church Corporation as the owners of the inheritance, and they may maintain trover for them, if wrong- fully severed, against a tenant of the Rec- tor, or any person acting under the ten- ant's authority. Ibid. 8— Statute. Quare, Whether the statute 13 Eliz. c. 10, relating to leases by ecclesiastical per- sons, applies to Church Corporations in this Province. Bedell v. The Rector &c. of Fredericton, 3 All. 217. 9— ITo Beotur— Action in name of Church Corporation. An action of trespass for injury to a Par- ish Church may bo brought in the name 94 CITY COURT. COMMISSIONER. of the Church Corporation in the absence of evidence of there being a legally in- ducted Rector. Rector &c. of St. George's Church V. Cough, 1 Ilan. 609. 10— Closinfc Church— TTnlawftil aot. In an action of trespass for boarding up the doors and windows of a church, the defendants justified ns Church Wardens, and that they had dosed the church for repairs ; but it was proved that they closed it to prevent a clergyman, who claimed to be Rector, from officiating there. Held, That even if the defend- ants were Church Wardens and there was no Hector, they had no right to close the church against other members of the cor- poration, or to prevent public worship being held there. Ibid. 11— Vacant Bectory— Bight of presen- tation. Prior to the Act 32 Vic. c. 6, the Lieut. Governor of the Province had by virtue of the Queen's prerogative, and the laws relating to the Church of England in this Province, the right to collate and to pre- sent to a vacant rectory. Doe dem. Rec- tor of St. George'i Church v. Cnugle, 2 Han. 96. 12— Bector— Bents of Glebe— Liability to assessment. Under the Act 26 Vic. c. 35, which ex- empts from taxation the income of the inhabitants of Fredericton derived from real or personal property, the Rector of the Parish is not liable to be assessed upon the income derived from the rents of his glebe. Lee v. Mayor of Fredericton, East. T. 1873. CHURCH CORPORATION. See Church of England. CHURCH WARDENS. See Church of England. CITY COURT. Practice in judgment by deflftult. A practice in the City Court of St. John of awarding to the plaintiff on judgment by default, the amount claimed in his particulars of demand filed at thnt time, without any proof of the amount, or any copy of the particulars served on the de- fondnnt, is bad, and cannot bo rendered valid by the length of time the City (>ourt has been in existence; neither is this practice confirmed by the Act 5 Wm. 4, 0. 45, 8. 7, never having been allowed by any superior legal tribunal before the passing of that Act. AUen v. Mackay, 1 All. 365. CITY COUNCILLOR. Election— Disqualification. A contractor with the Commissioners of the Alms House for the County of York, is disqualified from being elected a City Councillor in Fredericton, under the Act 22 Vic. c. 8. Ex parte Cameron, 1 Han. 306. CITY OF FREDKRICTO.V. See Fredericton (City of.) COGNOVIT. See Warrant of Attorney. 1— Costs— EstoppeL Where a defendant has given a confession of judgment for £50, he is estopped from requiring that summary costs should be taxed, although the sum really due and for which execution is to issue, be under £20. Booster v. Brown, 1 Kerr 200. 8— Conditions— Liberty to enter up judgment. 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 bo at liberty to enter up judgment and sue out execution for such sum and costs. Held, That there was no forfeiture of the cognovit until the costs were taxed, and the amount made known to the defendant. Snodgrasn t. WiUon, 1 All. 373. 8— Waiver. A cognovit may be given before declara- tion filed, and is a waiver of any irregu- larity in the previous proceedings. Mv- Namee v. O'Brien, 4 All. 548. -Dismissal — Costs. Motion to set oside- See Costs 85. Costs. See Costs 19. COLLECTOR OF CUSTOMS. Liability for accidental fire destroying goods detained after request. See Action on the Case I. 1. COMMISSIONER. Of Highways. See Justice of the Peace (Summary (Con- viction.) COMMISSIONER. COMMON SCHOOL ACT 1871. 96 ssue, be under See ActioQ at Law (Notice) XI. 13, 14. " Highways. " Trespass V. 6. Of Insolvenoy— Affinity— Disqualifica- tion. A commissioner appointed to examine confined debtors, was held disqualified from holding an examination in a case in which the plaintiff was a first cousin to his wife. Peck t. Barberie, 1 Han. Ci5. Commissioners of European and North Am- erican Railway — Duty of — Damage to land — Prevention of- — Right of Action against. See Damages 30. 1— Of Sewers. The acts of Commissioners of Sewers ap- pointed under the Act 22 Vic. o. 53, are not judicial acts, therefore they are not disqualified from assessing the proprietors of land ^or the purposes of the Act, by reason ot their being interested as owners of land in the district assessed. (Ritehie, J., dmentiente.) Ex parte Calhoun, Hil. T. 1863. 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. c. 53, being of a judicial character — per Ritchie, C. J., and Wel- don, 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. c. 73.) Reg. v. Commissioners of Germantown Lake, 1 Han. 343. 3 — A Commissioner of Sewers who is inter- ested in a contract for the performance of work done under the Commissioners, is , disqualified from acting with the other Commissioners in the approval of the work ; and if ho docs so, an assessment on the proprietors of land, in which an amount foi- payment of such work is in- cluded, is bad. Ibid. 4— The intention of the Act 32 Vic. o. 73, being to remove the disqualification of Commissioners of Sewers, bv reason of their being interested in the lands in the District to be assessed ; it necessarily in- cludes the interest of a Commissioner arising from relationship to a proprietor of such lands. E» parte Peck, nil. T. 1871. 6— Swearing in of— Assessment with- out— Bflbot. By 1 Rev. Stat. c. 17, Commissioners of Sewers shall bo sworn into office within one week after their election, or shall be deemed to have refused. Held, That the Act was imperative, and that a Commis- sioner elected on the 2nd August could not be legally sworn in on the 8th Sep- tember — the office at that time being va- cant ; and that Lis jo' ling with the other Commissioners in i.^. .king an assessment, rendered it void. Reg. v. Commissioners of Hopewell, Trin. T. 1872. 6 — Semble, That if an objection is made to a proposed assessment by the Commission- ers of Sewers, and some of the proprietors of lands in the District give an undertak- ing to the Commissioners to indemnify them against all damages and costs in case they make the assessment, and they after- wards proceed with it, the assessment will be set aside. Ibid. Commissioner to take affidavits in Supreme Court — Authority to administer Oaths. See Criminal Law II. 21. Commissioners of Water Company — Owner of land — Compensation — Assessment of Damages — Proceedings — Construction of Act 2 Wm. 4, cap. 26 — Application for Mandamus — Failure — Renewal of Mo- tion. See Mandamus 11 COMMISSION MERCHANT. See Warranty 5. COMMON CARRIER. See Carrier. COMMON COUNTS. See Assumpsit. . Recovery Under. See Assumpsit. Counsel not claiming under common count in opening case. Right to recover under particulars. See Trial Carrick v. Atkin- son. COMMON SCHOOL ACT 1871. Trustees— Dut^— Inspectors authority. If a requisition is made to the Trustees of Schools by a majority of the rate- payers of a district, to call a special meet- ing for a purpose authorized by " the Common School Act 1871," it is their duty to call the meeting under the 28th sec. of the Act; and if they refuse, the Inspeo- 96 COMPULSORY LIQUIDATION. CONDITION PRECEDENT. tor is anthoriied to appoint new Trustees, under the 37th sec. of the Act. Ex parte Gilbert, Hil T. 1873. Ixuneotor— Appointing Tnutees., Tne Inspector of schools is authorised on a proper requisition made under the 37th sec. of " The Common School Act 1871," to appoint a new Trustee, either where a Trustee elected declines to accept the office; or, where after acceptance of it, he declines to do his duty. Ex parte KHhy, Hil. T. 1873. Constitutionality— Non-seotarian. The Parish School Act, (21 Vic. c. 9,) conferred no legal right upon any class of persons, with respect to Denominational Schools; therefore " The Common School Act 1871," which declares, that the schools conducted under its provisions shall be non-seotarian, is not ultra vires, as being contrary to " The British N .rth America Act 1867," s. 93. Ex parte Renaud, Hil. T. 1873. Begulations— Effect of. The constitutionality of " The Common School Act 1871," cannot be affected by any Regulations of the Board of Edu- cation, made under its authority; and, Semble, If the Board of Education have made regulations which they ought not to have made, or have not made regulations which thoy should have made — it is a case within sub-sec. 4 of " The British North America Act 1867," 8.93. Ibid. ASSESSMENT FOR SCHOOL PUR- POSES. See Assessment II. COMPARISON OF HANDWRITING. See Evidence XL 16. Practice in Equi- ty 30. COMPETENCY. See Witness. COMPOSITION— AGREEMENT. See Bills and Notes V. 9. COMPOSITION DEED. See Deed. See Insolvent Debtor. COMPULSORY LIQUIDATION. Petition — Hearing of before Judge of County Court. Seelnsolyent Actofl869. CONDITION. See Covenant 8. See Crown Grant II. 1. Deed I. 25. Pleading. Insurance. CONDITION PRECEDENT. See Vendor and Purchaser. " Landlord and Tenant. 1— Loss payable after proof. The following clause m 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 interest in the said assured," has the operation of a condition precedent; and the judgment was arrested in an action by the assured a^^inst the insurer fur the want of any averment in the declaration, that such preliminary proof had been fur- nished to or dispensed with by tho de. fendant. Watson v. Swmmer$,2 Kerr 101. Arbitration before Action. See Action at Law II. 2— Tender of Deed. The defendant gave a bond to the plain- tiff for the price of land, conditioned to pay £50 on tho Ist June 1849, and the remainder in three annual instalments; and on making the first payment and re- ceiving a deed from the plamtiff, to give a mortgage for the balance. Held, That a tender of a deed was not a condition precedent to the right to recover the first instalment. Dykeman v. Craig. 2 -4//. 265. 3 — Where A. agreed to sell B. a i)iece of land, and B. agreed to pay £100 for the the same on or before Ist May, on pay- ment 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 1st May. Hanford v. Gidney, 1 Kerr 82. 4— Payment of costs— Insolvent debtor. Payment of costs on failure of a previotu application, not m?.(Jle a condition prece- dent to a second application. See Mc- Farlane 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. CONSIDERATION. CONSIDERATION. 9r See Action at CONDITION IN RESTRAINT OF MARRIAGE. See Will 8. CONFESSION. See Cogaovit. See Criminal Law. CONFUSION OF GOODS. See Trover 26. Replevin 20. CONSENT RULE. See Ejectment VII. CONSIDERATION. See Assignment — Assumpsit — Bills and Notes — Contract — Declaration — Deed — Fraudulent Conveyance — Guarantee — Insurance — Pleading — Usury. 1— Executory promise— Compensation for iitjury. An agreement, whereby B. who had per- mission to cut down a certain quantity of pine timber on public laud belonging to the Crown, assigns his right and interest to A. by way of compensation for an in- jury 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 execu- tory 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 plantiif 's rights in a schooner, of which he and defendant and others were possessed as part owners, is a good consideration to support a pro- mise by the defendant to pay the plain- tiff his proportion of the profits. Murray V. Seelffe, 3 Kerr 212. 3— Value— Equality. In order to constitute a valuable conside- ration to support a conveyance, it is not necessary that the money paid should be of equal value with the property convey- ed; provided the transaction is botia/ide. Pajfson 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 per* 13 mit, for which B. was to allow him what* ever the timber sold for, after deducting B.'b 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 tim- ber without adolivery. Voombetv. Ilathe* way, 3 Kerr 592. 6— Illegal contract— Subsequent repeal of Statute. A sale of liquor (not by a licensed manu- facturer or agent) being illegal by the Act 15 Vic. c. 51, is not made good by a subsequent repeal of the Act. Dever v. Corcoran^ 3 All. 338. The original contract being illegal, a prom- ise to pay, made after the repeal of the Act, is void for want of a consideration. Ibid. Queere, If the liquor had been in the de- fendant's possession at the time of the subsequent promise, whether the plaintiff could have recovered ? Ibid. 6— Valuable consideration- Deed. To constitue a valuable consideration to support a deed, it is not necessary that it should be a money consideration : becom- ing bail for the grantor is sufficient. Vrock/ord v. Equitable Insurance 6'oni- pany, Mich. T. 1863. 7— Lien— Parting with. Parting with property on which the plain- tiff has a lien, may be a good considera- tion to support an express promise, but not an implied one. See Hartley v. Fisher, 1 AU. 439. 8— Evidence— Explanatory of conside- ration—Admission of— Contribu- tion. The plaintiff having purchased land from D. in May 1845, took a deed thereof to himself, and gave a mortgage thereon for the purchase money, as was stated by D. at the trial, and also the joint and seve- ral promissory notes of himself and the defendant, no stipulation having been made with D. for the security of the de- fendant. After the purchase, the defend- ant claimed and exercised a part owner- ship on the land. Afterwards, in March 1846, the plaintiff gave a conveyance of an undivided moiety of the land to the defendant, expressed to be " in conside- ration of £160 to the 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 98 CONSTABLE. CONTEMPT. execution of the deed from the plaintiff to the defendant, but nothing whatever vas then said about the purchase from DeVe- ber. u' the defendant's joint liability on the notes. The plaintiff having afler- vards 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 defendant, and the defend- ant was a principal and not a surety on the note. Held, (Parker J., dmentiente,') That he was entitled to recover, and that it might be inferred from the circumstan- ces that the original purchase was on joint account; and that the plaintiff's acknowledgment of payment for the moie- ty in the deed might be explained by cir- cumstances 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 satis- fied. Read \ McClelan, 1 All. 81. 9— Sheriff's sale of goods— Agreement as to bidding— Becovery of dif- fierenoe 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 Wvtre to sell them within a certain time, and the plain- tiff was to have the benefit of any advance in the price over the sheriff's sale. Th-) goods were bid in, and sales of them after- wards made under the agreement at an advance. Held, That there was a suf- ficient consideration for the agreement and that the plaintiff could recover the differ- ence on the re-sale. Fraser v. DetbrUay Trin. T. 1866. CONSIGNEE. Representations made by — Liability. Warranty. See CONSTABLE. See Action at Law (Notice of Action.) 1— Mileage. Not entitled to, under Justice's Act, for each defendant, when more than one, un- less he actually and necessarily travels twice to effect the service of summops. Jordan v. Coates, 2 All. 107. Certified Fees — Bight to recover. See Criminal Law. 2— Refusing to Arrest— False Return— LiaMfity. 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. Power v. Stephenson, Hil. T. 1861. 3— Breaking open doors— Warrant. 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 spiritu- ous liquors without license. Smith v. Burpee, Mich. T. 1872. 4— Arresting Debtor— Duty as to levy on goods first. A constable is liable in trespass, if he ar- rests a debtor under an execution issued out of a Justice's Court (1 Rev. Stat. c. 137) before he has used reasonable dili- gence to find goods to levy on. Where the debtor points out property to the con- stable, it is his duty to seize it, unless ho has reasonable grounds for believing that it does not belong to the debtor, and this question should be left to the jury. Hunter V. Maddox, 1 Han. 162. 6— Notice of Action. A constable appointed by the Sessions, under the Rev. Stat. c. 56, and acting under the Justice's Act 1 Rev. Stat. c. 137, is entitled to notice of action. Rohi- cheau v. Arsineau, East. T. 1864. See further Action at Law (Notice of Action.) When not entitled to BTotice. When executing process in which he is plaintiff. See Action at Law XL 12. CONTEMPT. Commitment 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 com- mit to prison orally without warrant, for contempt committed in the face of the Court. Armstrong v. Mc Caffrey, 1 Han. 617. They have no power to commit to lock-up house where that place is intended as a place merely ol temporary security until prisoner can be taken to gaol. Ibid. Witness in Contempt See Attachment. CONTRACT. CONTRACT. 99 CONTINUING SECURITY. See Warrant of Atturney. CONTINUANCES. Amending Roll by Entry of. See Amend- ment III. .\fter interlocutory judgment continu- ances may be entered at any time before final judgment. McDonald v. Upton, 3 Kerr 565. CONTRACT. See Agreement. Partias disabling themselves from Perform- ing — Uecovery on Common Counts. See Afisumpsit 52. Immediate right of action attaching. See Action at Law IV. Rescinding of — Can only be rescinded by the consent of all the parties contracting. See Action at Law 15. Acquiescence — Deviation — Recovery on Common Counts. See Assumpsit 42. Fixtures — Effect of Contract as to Gas Fit- tings. See Fixtures. Contract under Seal — Partnership — Pro- perty — Liability of Firm. See Partner- ship 5. Contract with Society supposed to be incor- porated. See Equity 5. Corporation — Entering into Contract under Seal — Estoppel. See Contract 12. 1— Sale— Vesting of Property— Suffi- cient delivery. Dofendant agreed to purchase from plain- tiff for 8800 the machinery of a mill, which was partly covered with sand, and paid him earnest money to bind the bar- gain. About ten days afterwards, the plaintiff signed a writing by which he guaranteed that certain of the machinery (specified) was under the surface of the ground where the mill had stood, and agreed to deliver all the machinery be- longing to the mill for $800, and acknow- ledged the receipt of $2 on account of the sale. He atlerwards made a formal de- livery of part of the machinery in the name of the whole, but the defendant re- fuHcd to take it unless it was put on the surface of the ground. Held, That the title to the machinery vested in the de- fendant by the verbal agreement when the earnest money was paid, no act re- maining to be done by the plaintiff but that' if by the writing any delivery was necessary, ' o plaintiff had made a suffi- cient delivery, and was not bound to put the machinery on the surface of the ground. AUingham v. O* Mahoncy, Eatt. T. 1873. 2— Construction 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 them with a promissory not« for the price. J. A. had no timber belonging to the defendant, but he accepted an order drawn by him for the delivery of the tim- ber to the plaintiffs, on the defendant's promise that it should be in his (J. A.'s) hands at the time the plaintiffs required it. In an action against the defendant for not delivering the timber, (J. A. never having received it) the defendant gave evidence of a general usage in the timber trade by which the acceptors of such orders were alone responsible to the purchasers ; and the plaintiffs gave evidence denying such usage. Held, 1st, That the defendant was liable to the plaintiffs on his contract for not delivering the timber, and that the jury were properly directed that there was no such proof of usage as would dis- charge him from his liability. 2nd, That the acceptance was onlv a prospec- tive delivery order, designatmg the me- dium through which the timber was to be delivered, and that unless J. A. re- ceived it for delivery to the plaintiffs, they could not maintain any action 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 properly declared on as a contract to deliver in a reasonable time. Rankin v. Gof to establish a substituted contract. 4th, That during coverture C. could not enter into a contract to abandon the rightti she acquired under the will of 8. 5th, That the provisions in the will for the benefit of C. inured for the benefit of the plaintiff her son. 6th, That the plain- tiff'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 objec- tion in his answer. 8th, That under 17 Vict. cap. 18, it was nut necessary for M. to bo a party to the suit. Gilpltu v. Scn- vit, 1 //««. 87y. 16— With Partnership or personally— Question for jury on whole evi- dence. Where A. brings assumpsit for money had and received, against B., who defends on the ground that he is answerable to the representatives of' A.'s deceased partner, and the testimony thereof is to be gather- ed from the entitling of accounts, the address of letters, as also from other cir- stances. Held, That it was properly left to the jury on the whole evidence to de- termine whether H. had contracted with the firm, or personally with .\. lidi/umiiff V. Jfdt/, 1 Ktn- m. 16— Statute of Frauds -Operation of— Year. A contract, not in writing, entered into on the 2Gth May, i'or the supply of a regi- ment with groceries for a year from the 1st Juno following, subject to bo sooner determined in case the regiment should leave the I'rovince, is void under Statute of Frauds. Jin:d v. Jfurdiiuj, 2 Jfaii, 137. 17— Bill of Lading— Entire contract. As a general rule the bill of lading, though containing different descriptions of goods belonging to the same person, is considered as an entire contract. iWci/l V. liei'if, 4 Aft. 24(5. 18— Specific performance -Lapse of time. Though in e(|uity, time is not always the essence of a contract : Si mfi/r. That alter a delay of four years, spccifie perrorniancc will not in general be deereed. /'(/cccs v. Hume. 'A All 2!«l», (See K(|uity 2.) 19— Want of acquiescence in termina- ting contract. Where A. delivered timber to B., under an agreement that']}, should ship as much as he could, and give A. credit for the amount, and B. having shipped what he thought fit, and given notice to A. to take away the remainder, and subsequent tn such notice shipped a further quantity. I Held, In the absence of any proof of I acquiescence in such notice by A., that H. [ was not liable in an action of trover fur] the quantity shipped after the notice. Hiiyhes V. Siithcilund, 1 Kerr 574. 20— Bescission of c^ntraot— Evidence I of— Substitution of new contract —Liability— Question for jury. Defendant agreed with the plaintiff in March 1863, to carry deals from the plain- tiff's mill at Fredericton to St. John dur- 1 ing the whole of the coming season, at 2^. 6(1. per thousand, and if plaintiff \va« obliged to give 2.s. 9rf. per thousand to others, he was to give that sum to the defendant. The plaintiff had made con- 1 tracts for the delivery of deals in St. John, which ho afterwards assigned to T. & P, I (lumber merchants), together with the defendant's contract ; and he also agreed to saw lumber by the thousand for T. Hi P. ; and did saw i'or them under such contract from the beginning of the season till October. At the opening of the sea- son the defendant went with his boats to | the plaintiff's mill, but no deals were of. fered to him, and he heard that the plain- tiff had sold his mill : in consequence of I this, he agreed with T. & P. to carry their f deals for 55 cents per thousand, and con- tinued to carry them from the plaintiff's I mill, where they were sawed, till the hit- ter part of September, when the mill stopped. Held, per Fisher and Wctuioro. I J. J. (\V»)ldon, J., ilis.'^intunlf), That tliero was evidence of the rescission of the con- 1 tract between the parties, and of the sub- stitution of a new contract with T. & 1'., which ought to have been left to the jury; I and that the defendant was not liable on the contract for not carrying deals which the plaintiff cut on his own account atlor the 1st October. Morrhon v. Gale., Midi. T. 1872. 21 -Liability to insure goods— Comple- tion of contract. Plaintiff ap))lied to the agent of an Kx- press Company in Fredericton, to forward I u ease of furs to Hulititx, ttt be scut tv | liondon, statin]; that he wished to hiive 3T. CONTRACT. CORONER. 103 noe in termina- mber to B., under ould ship as much A. credit for the shipped what he lOtice to A. to take nd subsequent to further quantity. I of auy proof of| tico by A., that 15. stion of trover fur \ after the notice. 1 Kerr 574. tract— Evidence I of new contract | jtion for jury, h tlio phiiutitf ill | uals from the plain- )a to St. John dur- 1 coming season, at ind if plaintiff was I per thousand to c that sum to the tiff hud made con- if deals in St. John, | ssigned to T. & P, together with the I and he also agreed thousand for T. & them under such ming of the scusun )pening of the sea- t with his boats to I t no deals were of- 1 Mird that the plain- in consequence of I it F. to carry their | lliousand, and coii- i:om the plaintiff's | sawed, till the lut- when the iitill tier and Wctmore. I scission of the con- es, and of the sub- 1 ract with T. & I',, on loft to thejurjil was not liable on rying deals which own account ntWrj I'mn V. (fale, Mid. goods— Oomple- agent of an I'ls- ericton, to forwarJI iliix, t4> be scut to he wished to hiivc | them insured. The agent said that he could not get marine insurance in Fred- cricton, 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 Fredericton received the furs from the plaintiff, and signed a receipt stating that they were to be forwarded and delivered to the nearest connecting Express, — no- thing 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 plaintiff stated that he wished S. to insure 8600 on the furs, and to forward them to Halifax immediately, as ho wished to have them in London at u particular time. S. did not insure. — Held, In an action against the Company for neglecting to insure, that the contract w«8 complete when the agent in Freder- icton received the furs and gave the re- ceipt, which contained the terms of the contract; and that the letter to S. was only a request to insure, and formed no part of the contract for the transmission of the furs. Mi: GoMrkk r. Eastern Ex- press Company, East. T. 1872. |22— Quality of article— DeBoription— Representation. Vcfeudauts agreed to furnish the plaintiff with a quantity of coal from their mines. Coal from these mines, known as *' Albert coal," was used almost exclusively for the manufacture of oil and gas, and the de- fendants knew that the plaintiff required the coal for the purpose of manufacturing it into oil, and they could have supplied an article fit for that purpose. Hold, That the plaintiff was entitled to receive Albert coal ol'a liiir merchantable quality, and fit for the purpose for which ho re- quired it; and that the contract was broken by the delivery of coal fVom the niinos, so mixed with shale, as to bo com- paratively valueless for the purpose for which the plaintiff required it. Spurr v. Albert Mimwj Co., East. f. 1871. tn contracts of this nature, it is not so much a question whether there has been a war- ranty, as, whether the article delivered by the defendant fairly answers the de- scription of that which he agreed to sell. Spurr V. Albert Mining Co., East. T. 1871. Damages — Non-assignment of judgments, etc — Injury to business. See Damages I. 9. CONTRIBUTION. Loss of Goods by Jettison. See Shipping Law 10. Action for, on note — Surety. See Consid- eration 8. CONTRIBUTORIES. Liability of Stockholder. See Winding Up Act. Executors — Stock in name of, in bank — Liability. See Winding Up Act. CONVERSION. Sec Trover. CONVEYANCE. See Deed. Wife should be party to — Seller of land should prepare Conveyance. See Ven- dor and Purchaser. CONVICTION. See Justice of the Peace. CORONER. See Venire. — Jury. 1— Authority to take limit bond where writ directed to, and arrest made by him. The Coroner, though not specially named, has the same authority as the Sheriff to take a limit bond under the Act 6 Wni. 4, 0. 41, where the writ has been directed to, and the arrest made by him. Earle v. Bivebcr, 1 Kerr 348. 2-Jury process— Sufficiency of. Qutcre, Whether it is necessary to direct any other but jury process to a Coroner, where the only objection to the Sheriff is that ho is related to the defendant. Sec Stevenson v. Douglas, Her. 281. 3— Duty of— Judicial— Absence of any juror. A Coroner's duty is judicial, and ho can only take an inquest tupcr visum corporis / and an inquest where the CJorouer and 104 CORPORATION. CORPORATION. jurors were not all present at the same time is void. Ex parte Wilson, Trin. T. 1871. 4— Inquest— Expenses. Where an inquest has been duly taken — Qusere, Whether the Sessions are justified in refusing to pay the expenses under 1 Rev. Stat. c. 132. Ibid. CORPORATION. 1— Suiumary proceedings. Since the Act 6 Wm. 4, c. 33, estab- lishing the writ of summons, a Corpora- tion ui.ay be procendcd against in a summary action ; and, in cases where the proceedings ought to be summary, the plaintiff will only be entitled to summary costs. O'Connor v. The N. B. and N. S. Land Company, 1 Kerr 276. 2— Agent— Authority— Extent of. The Tobique Mill Couipauy (an incorpo- rated company) authorized their agent, by power of attorney, " to manufacture logs into lumber at the mills, transport them to market, and dispose of them" for the company's benefit. Held, That this did not authorize the agent to deliver over ■ lumber at the mills, in p^tyment of secu- rities given by him on behalf of the com- Eany for debts contracted in the course of is agency ; and that such delivery vest- ed no property in the creditor. Lom- bard V. Winnloic, 1 Kerr 327. 3— Making promissory notes. Qtisere, Whether the company could authorize their agent to make promissory notes ; and if they could, whether he had a right to make notes in his own favour in payment of a debt due himself for his services , Ibid. 4— Contract not under seal— Agent— ■ Authority— Estoppel by plead- ing. A written contract made in the name and on behalf of a corporation, called " The Lancaster Mill Company," by their agent, with the plaintiffs, whereby the plaintiffs for certain stipulated payments, which would amount to over jCGOO, to be made by the company, engaged to cut, raft, and drivo to the company's mills a large quan- tity of logs in the course of the ensuing season, is of such nature and extent as could only bo made under the common seal of the corporation. Hold therefore. In assumpsit brought for the recovery of the stipulated pitynient after the delivery of the logs ut the mills, that the corpora- tion was not liable — per Chipman, C. J., Botsford, J., and Carter, J. The corpora- tion was not liable on the contract, be- cause 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 appointment of officers under the act of incorporation to manage the busi- ness of the company — per Parker, J. The defendant, being sued as a corporation, and appearing and pleading 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 thut capacity. Seeh/e v. Lancaster Mill Company, \ Kerr 377. 6— Assumpsit— When it lies against. Where money has been received by a manufacturing corporation under a parol agreement to make payment for the same in articles of their manufacture, which they have failed t() perform ; an action of assumpsit lies to recover back the money. Diamond v. The St, George Lime Com- pany, 2 Kerr 537 6— Letters patent— Presumption of— Proper issue of. Where a corporation is created by letters patent under the great seal of the Prov- ince, and under the signature of the Lieut. Governor, it will be presumed that such letters patent were properly issued. Doe dem. Commercial Bank v, Wiltiston, 3 Kerr 101. 7— Admission of existence of corpora* tion by what. Giving a mortgage to a corporation, and entering into a consent rule in an action of ejectment brought by a corporation, are admissions of the existence of the corporation. Ibid. 8— Not liable to attachment for costs. A corporation is not liable to an attach- ment for non-payment of costs ; therefore where a peremptory undertaking was en- larged on the application of a corporation (plaintiffs), the defendants was allowed to sign judgment of non>suit if the costs were not paid in a limited time. Trustees of (ireenoek Church v. Loue, 3 Kerr 179. See also Doe v. Crawford, 3 All. 266. 0— Non-payment of money by oolleo* tor- Action by. Wh' an Act authorized the corporation of a city to raise money by nssessniciit, and directed that the person appointed by them to collect the money, should pay it CORPORATION. CORPORATION. 106 mption of— e of oorpora- >y by oolleo* over to the chamberlain of the city ; the chamberlain, being only the servant of the corporation, cannot sue the collector for not paying over the money : the action must be brought by the corporation. Mai/or t&c. of St. John v. Baldwin, 3 Kerr 477. 10— Church Corporation— Existence of — ICame. A Church Corporation may exist under the Act 29 Geo. 3, c. 1, by the style of " The Rector, Church Wardens and Ves- try" et«., though no rector has at the time been appointed ; and a grant by that name is good. Doe dem. Rector •'' the death or absence of the Rector. Ibid. 12— Contract under Seal— Estoppel. A Municipal Corporation with certain de- fined powers, is not, by entering into u contract under seal, estopped from shew- ing its incapacity to make such a contract. Jamiemn v. The Vity of Frcdcricton, 2 AH. 128. 13— Authority by Statute to erect building— implied power. The Corporation of the city of Frederic- ton entered into a contract with the plain- tiff for the erection of a building for a market house. Held, That sufficient au- thority was given them by the Act of In- corporation (11 Vic. c. 61), and therefore that the contract was valid. Ibid. 14 — A power to establish Fairs, necessarily includes a power *o establish Markets. — Ibid. 16— Crown right— Setting up same to invalidate Contract. Qiittrc, If the Corporation had no author- ity to establish a Market without license from the Crown, whether it could, ailcr the performance of the contract, and in the absence of any interference by the Crown, set up the Crown right to invali- date the contract 'f and Sembte, That after the perfornmnce of the contract, the corporation could not resist payment bo- cause of a defect in the title to the land on which the market-house was built — they retaining the pussession of it. Ibid. U 16— Seal— Resolution not under seaL 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 resolution, allowing him therefor, the amount of rent he would be liable to pay for the land for a certain time. Held, That not being under seal, the resolution was not binding on the corporation, and that the defendant could not set off the amount of rent so allowed, in an action by the corporation to recover money in his hands belonging to them. Mayor (fee. of St. John v. Wilmot, 2 All. 665. 17— British Statute— Restraint of— Leases. Quarre, Whether the Stat. 13 Eliz. c. 10, restraining ecclesiastical persons from making leases for a longer term than 21 years, applies to Church Corporations in this Province. Bedell \. The Rector &c. of Frcdericton, 3 All. 217. 18— Negligence— Liability for. A Municipal Corporation is liable to an action for negligence in the discharge of any duty imposed on them by their char- ter. Green v. The Mayor &c, of St. John, 1 Ifan. 525. 10— Trespass— Action by Corporation- No Rector. 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 cor- poration. Rector tfec. of Saint George's Church v. Couijle, 1 Han. 609. 20—Summons— Requisite statement of cause of action. The summons issued against a corporation under the Act 12 Vic. c. 39, s. 16, should state the cause of action truly : where the summons was to answer m a plea of "debt," and the declaration was in cove- nant, an interlocutory judgment was set aside. Gilmore v. The Liverpool tfec. As- mrance Co,, Ilil. T. 1871. An affidavit of the service of a summons issued against a foreign Corporativ>n, stat- ed that the copy was servea upon E. A., " the agent of tne above named Company." Hold, That as by the Act 12 Vic. c. 39, B. 16, service upon an agent was only good in a suit against a foreign Corporation, the affidavit was insufficient, as it did not state that the dofendaui was a foreign Corporation. Ibid. 106 CORPORATE NAME. COSTS. ^S,'-,.-,*- .V. SI— Payment of money to a Society does not incorporate. The mere grant by an Act of the Legis- lature of a sum of money to a Soci- ety for a particular purpose, does not constitute it a corporation. The Munici- pality of York was authorised by Act 23 Vio. c. 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 an- nual shows and fairs. Held, That this did not create " The York County Agri- cultural Society " a Corporation. Hodge V. Reid, Mich. T. 1872. 22 — Policies signed by president and coun- tersigned by secretary as required by Act incorporating Insurance Company, valid without seal of company. See Evidence VI. 5. Agent Accredited. Agent 23. Sec Principal and 23— Corporation of City of St. John. Are not bound by their charter as gran- tees of Crown to build or keep in repair wharves or sea walls for the protection of the city lands from the sea. No such implied duty by charter. See Coram v. Mayor &c. of St. John, 1 Han. 441. Water Company — Obligation to keep sup- ply of water. See Water Company. Corporation of Saint John have no right to limit by contract their power to make bye-laws within their control under the charter. See Bye-Liaws 5. See Joint Stock Company. CORPORATE NAME. See Church of England. See Corporation. MiBdesoription. 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 Westmore- land Bank, in the County of Westmore- land," — 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 locality. McKcnzic v. Wiiwell, 1 JIan. 603. COSTS. I. Record and Summary — (Allow- ance OR Disallowance of Costs.) II. Taxation of Costs — (What al- lowed.) III. Notice of Taxation. IV. Review of Taxation. V. Particular Proceedings — Par- ticular Persons. VI. Several Defendants — Several Issues. VII. Security for Costs. VIII. Double Costs. IX. Offer: to Suffer Judgment by Default under Act 18 Vict. CAP. 9. X. Miscellaneous. Record and Summary — Allowance or Disalloavance of full Costs. 1— Becovery iinder £6. Where plaintiff recovered less than £5, in u case referred at nisiprius, the original demand being also less than that amount, a suggestion will bo entered on the roll to deprive him of costs under the Act 50 Geo. 3, c. 17. Ferguson v. Holmes, East. T. 1831. 2— Verdict prima fboie evidence of amount. The amount of the verdict is prima facie the amount of the demand for which the action was brought ; and where the amount recovered was under £5 the plaintiff was deprived of costs under the Act 60 Geo. 3, c. 17. Dickenson v, Bal- loch, Jicr. 24. 3— Oircumstanoes of case govern Court in depriving plaintiff of costs. The Court will not deprive the plaintiff of costs in all cases ex contractu, where the verdict is under £5, but will look to all the circumstances of the case. Mc- llhancy v. Wiswcll, lier. 67. 4 — Where the verdict in an action for use and occupation was for less than £6, but the plaintiff's right to the land and the construction of a deed under which ho claimed were disputed, he will not be de- prived of costs under 60 Geo. 3, o. 17. Black V. Kirk, Ber. 81. COSTS. COSTS. 107 lNts — Several evidenoe of 6— Dofendont disputixu; balance on account rendered. Where the verdict was for £11, plaintiff was allowed full costa, though he had ren- dered an account to the defendant before uction brought, shewing credits and a balance due of less than £20 — the de- fendant having disputed the balance and thereby rendered it necessary for plaintiff to sue for his whole demand. Douglas v. JTamon, Ber. 121. 6— Discretionary power. Uetciidaut gave plaintiff a note for £22, payable in timber ; he afterwards deliv- ered him some timber and an ox, which ho cliiiuied to have been received in satis- faction of the note : plaintiff recovered a verdict for £14. Held, That he was en- titled to full costs under the discretionary power given to the Court by the Act 4 Wm. 4, c. 41 . Holland v. Close, Ber. 344. 7— Important rights involved- Trover. When important rights were involved in an action, the plaintiff was aUowed full costs, though he recovered less than £20, and the action might have been brought under the Summary Act (4 Wm.4, c.41). Coombes v. Caldwell, 1 Kerr 127. 8— Reference to Arbitration -Award less than £6. Where a cause was referred to arbitration, the award to be entered as a verdict, and an award was made in favour of the plaintiff for £3, he was allowed summary costs, it appearing by affidavit that his account, us allowed by the arbitrators, was about £20, and was reduced by the defendant's account, — notice of set-off having been given iu the action, and it not being clearly shewn that the defendant's account was a payment. Doyle v. Douyan, 1 Kerr 161. 8— Assault and Battery— Verdict less than 40 8hillinK& In an action for assault and battery where the verdict is for less than forty shillings, it is discretionary with the Judge whe- ther ho will certify or not, in order to entitle the plaintiff to frosts under the Act 22 and 23 Oar. 2, c. 9. Kwini/ v. Scott, Trill. T. 1834. 10-Title to Land. The plaintiff is entitled to costs under the Act 30 Vie. c. 10 in nn action for over- flowing his land by means of a mill-dam; the defendant claiming his right to do so, by permission of a Ibrnior 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— County Court. Where the declaration contained counts for trespass quare clausum /regit, for as- sault, and for slander ; but the plaintiff recovered for the assault only — there be- ing no dispute about the plaintiff's title to the land — a certificate for costs was refused under the Act 30 Vict. c. 10, s. 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. 12 — In trespass quare clausum /reyit, and for an a8sa,ult, the defendant gave notices of defence, — liberum tenementum as to the trespass, and a justification of the as- sault in defence of his possession. The question of title was principally in dis- pute, and the plaintiff recovered on both counts On motion for a new trial, the plaintiff abandoned 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 plain- tiff was entitled to a certificate for costs under the Act 30 Vic. c. 10. Burke v. Niles, East. T. 1871. 12 a— Beoovory for assault only. Where in trespass quare clausum /regit, and for assault, the plaintiff recovers for the assault only ; ho is not entitled to the costs of the pleadings or evidence appli- cable exclusively to the issue, on which he was unsuccessful. Burke v. Niles, Hil. T. 1873. 13— Judge certifying under Act 30 Vic. o. 10. Where a cause is referred to arbitration by an order of nisi prius, the presiding Judge has power to certify for costs un- der the Act 30 Vic. c. 10, s. 21. Patton V. Harding, East. T. 1871. 14— Assignee of Note for lumber- Delivery after action. Where the assignor of a note payable in lumber obtained a verdict for nominal damages, in consequence of the debtor having delivered the lumber to the as- signor after action brought, the Court granted the plaintiff a certificate for full costs, (ircen v. Williston, 3 Kerr 110, 108 COSTS. COSTS. 16— Trespass— Claim of Title- Certificate. Where the trespass is committed under a claim of title, or with the intent to oust the plaintiff from the possession of the land, the Judge may certify under the Statute 22 and 23 Gar. 2, c. 9, to entitle the plaintiff to full costs. Morrison v. McAfpin, 2 Kerr 36. 16— Certifl(»te— Time for granting. Such certificate may be granted within a reasonable time after the trial, and an ap- plication therefor is not too late if made the day after the trial is over. Ibid. 17— Time of making application for 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. 4, c. 14, s. 24, is not too late if made before the judg- ment is signed, though nearly two months after the verdict. Crane v. Cunard, 3 Kerr 407. 18— The Statute 43 Eliz. c. 6, authorising a Judge to certify to deprive a plaintiff of costs, is in force here. See British Statutes. 19— Cognovit— Damages laid at £60, conditioned for payment of £17. Where A., an attorney, sued for a debt of £17 in an action not summary, and the defendant gave a cognovit in which he confessed the damages laid in the de- claration (jC50), but it woB thereby stipu- lated that in case of default of payment of j£17 with costs, to be taxed by a cer- tain day, the plaintiff should bo at liberty to enter up judgment for the £17. — Held, That he was entitled to summary costs only. Ilardimj v. Parker, 2 Kerr 7. 20— Defendant sufibring judgment over £6. When the defendant suffers the damages to bo assessed and final judgment signed for u debt over £5, the Court will not en- tertain a motion to deprive the plaintiff of cudt^f on the ground that a payment had been made before action brought, wlu;reby the debt was reduced below £5. Bennett v. Morse, 2 Kerr G24. 21— Set-Ofi— Appropriation. Where the maker of a promissory note delivered the payee a quantity of hay without making any specific appropria- tion of the amount towards the paying of the note, and on a subsequent demand of payment elaiuicd no deduction on account of the hay. Held, In action on the note, that the value of the hay could only be considered as a set-off, and that the plain- tiff was entitled to costs, though the ver- dict was for less than £5. Barlow v. Clark, 3 Kerr 485. 22— Damages under £20— Assumpsit. When the damages in assumpsit are un- der £20 the plaintiff is only entitled to summary costs though the defendant suf- fered judgment by default and took no steps to be present at the taxation and object to the costs. Street v. The Saint Andretos Steam Mill Co., 1 All. 134. 23— Set-ofi*— Goods fUmished— Verdict below £6. If a defendant gives a notice and particu- lars of set set-off which are principally made up of goods furnished the plaintiff, it shews prima facie that it was not in- tended as a payment, and the plaintiff is entitled to costs though the verdict is be- low £5. White V. Dawson, 2 All. 51. 24— Special notice of defence— ESbct of The construction given in England to the the Statute 22 and 23 Car. 2, c. 9, is part of the law of this Province, and is not affected by the Act of Assembly 13 Vic. c. 32 ; therefore in trespass quare clausum /regit, the plaintifi' is entitled to full costs though the verdict is under forty shil- lings, if the defendant gives notice under the Act, of leave and license, and relics solely on that defence. Marks v. Gil- mour, 3 All. 170. 26 -Or- Cause referred at Nisi Prius- der of Judjge for fbll costs. Whore a cause is referred at Nisi Prim, and judgment on the award is to be en- tered as a verdict, the Judge of the Court of Nisi Prius may make an order for full costs, where the plaintiff's demand is re- duced by sct>off ; and such order may bo made ex parte. Seeli/e v. Stj/les, 3 ^■1//. 246. 26— Justices Court— No jurisdiction- Contract. The Rev. Stat., c. 137, s. 43, depriving » plaintiff of costs where he does not recover more than £5, only applies (o cases in which Justices of the Peace have juria- dietiou ; therefore in an action for non- performance of a contract to deliver goods, the plaintiff is etititled to cuHts without a Judge's order, though ho ri;- covers less than that amount, Jiidevut v. Stevens. X Ilan. 28. COSTS. COSTS. 109 ion on the note, J could only be 1 that the plain- though the ver- £5. Barlow v. -AssumpBit. sumpsit are un- jnly entitled to 3 defendant suf- lit and took no le taxation and et V. The Saint , 1 All. 134. Bhed— Verdict ice and particu- are principally led the plaintiff, t it was not in- 1 the plaintiff is he verdict is he- on,2All.51. fence— I England to the r. 2, c. 9, is part nee, and is not ssembly 13 Vic. IS quare clatimm tied to full costs nder forty shil- vcs notice under lense, and relics Marks v. Gil- ui Prlus— Or- ill costs. at Nisi Prim, rard is to be en- igc of the Court n order for full s dcnuind is ro- ll order may bo ir. Styks, 3 All. urisdiotion— m, depriving » does not recover lies to cases in uaco have juris- action for nun- act to deliver ntitlcd to costs though ho ro- ouut. JiiiUvut II. Taxation op Costs. 27— What allowed— Commission to example. Cost of a Commission to examine wit- nesses are costs in the cause under Act Wm. 4, c. 34. Fergus v. Mcintosh, Ber. 91. 28— Setting aside verdict— Ofibr to confess judgment — Costs of lirst trial— Commission. A verdict for plaintiff in an action on a policy of insurance 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. Held, That he was not entitled to the costs of the first trial. Wood v. Sternest, Hil. T. 1863. 29 — The expense of a Commission to exa- mine witnesses taken before the first trial of a cause, but not used, will not be al- lowed to the plaintiff as a necessary pre- paration for the second trial. Ihid. 30— Attendance of Solicitor— Evidence not used. The charges of a Solicitor attending the execution of a commission to examine witnesses in England, and the expense of taking evidence de bene esse in this Pro- vince, were not allowed on the taxation of costs, the evidence not having been used on the trial. Mc Givern v. Stymest, Trin. T. 1862. 31 — A fee of one shilling only is taxable for an attorney attending a Judge on sum- mons. Ibul. 32— Witnesses. The expenses of a witness coming from England to this Province to give evidence will be allowed in the costs. Light v. Abel, Ilil. T. 1866. 33 — The mileage of a witness travelling from the State of Maine to the County of Northumberland in this Province, al- lowed in the taxation of costs. Judkins V. Parker, C. Ms. 151. 34— Materiality of witnesses. Where issues are found for both parties, it must appear on taxing costs that the witnesses wore material to prove thu issue found for the party who charges for their attendance, and where the affidavits wore not sufficient for that purpose, and copies had not been served on the opposite ut- turuey, tiie Court set aside the judgment and ordered a new taxation. Crookshank v. McFarlane, 3 All. 18. 84 a— iSeotion Law— Allegations- Materiality of witnesses to pro^e. ^ Where on the trial of an Election Peti- tion, the Judge disallowed the costs of certain allegations in the petition, the affidavit of the attendance of witnesses used in taxing costs should shew that the witnesses were material to prove these allegations in the petition on which costa were allowed. Herbert v. Hannington, East. T. 1873. 34 b— Notices -Publication— Costs. Publication of notices in a newspaper — "for three consecutive days" — under the 69th Sec. of the Act 32 Vic. c. 32, cannot be made in a weekly newspaper. The petitioner is not entitled to the costs of publishing notices in a newspaper, and of posting. Ibid. 35— Cause put off— Order to pay ex- penses— Prima facie taxable costs. A trial being put off by a Judge's order upon the defendants paying to the plain- tiff " all costs incurred in preparing for trial and the expenses of one D. M. from Canada who was sent for, should he at- tend as a witness." Held, That the prima facie construction of the order was the taxable expenses of the witness, and if any thing more was agreed to be paid, the onus was on the claimant to shew it. Pollock T. Ritchie, 3 Kerr 351. 36— Voluntary attendance. If a witness attends voluntarily, it is not necessary to serve him with a subpoena in order to be entitled to charge for his attendance. Flaglor v. Richards, 1 All, 599. 37— Attendance as juror. If a person subpoencd as a witness at- tends the Court as a juror, or is too much intoxicated to be examined, he cannot recover his fees ; but if they have have been paid, the party paying tnem is entitled to have them taxed, and the or- dinary affidavit of the witness's attend- ance and materiality prt'nift /acj'e shews the payuieut. Murray v. Witliston, 1 All. 492. 38— Sufficiency of affidavit— Payment by adverse party. It is sufficient, in order to obtain the tax- ation of witnesses fees, to shew by affida- vit that they have attended during the period charged, and were material, with- 110 COSTS. COSTS. out shewing the payment of their fees ; and it will be no answer that they were also subpoened and paid by the other party, unless ho has given timely notice o^such payment to the successful party. Murray v. WiUlMon, 1 All. 492. (See General Rules 32.) 39 — Affidavit should state belief that the witness attended the number of days charged. See Taylor v. Travis, 3 All. 505. 40— Evidence— Application to one coiint of declaration— Costs confined to same. In an action for libel, consisting of five counts, and resulting in a verdict for de- fendant, a new trial was ordered; after which it was consented that the deposi- tions of the witnesses, taken under a commission obtained by the plaintifis, and made use of in evidence, might be used again on the next trial, whereat the wit- ness himself appeared, and was examined for the plaintiff vim voce; after which his depositions under the commission was put in and read with the consent of all parties ; and there was a verdict for the plaintiff on the first count of the declara- tion, and no finding on the other counts. Held, That the taxing ofiicer was right in disallowing the expenses of the commis- sion, and also the costs of the declaration, nisi prinx record, and judgment roll, ex- cept so far as related to the first count of the declaration. Andrews v. Wihmi, 3 Kerr 127. 41— Evidence generally— Qeneral issue. In an action of trespass, in which the gene- ral issue only was pleaded, a verdict was given against the plaintiff on the ground of his not shewing sufficient possession. Held, That the defendant was entitled to the costs of all his evidence, thougii part of it was adduced to prove title in him- self, in which he failed. Gauilin v. J/c- Killujau, 2 All. 477. AUter, If the evidence had been offered un- der a plea of Itherum tmemcntum, or a special notice of defence, not admissible under the general issue. Ibid. If a clear case of over allowance for the at- tendance of witnesses is made out, the Court will review the taxation of costs. Ibid. 42— Allocatur. A new trial having been granted on pay- ment of costs, an allocatur allowed for shewing cause was taxed against the par- ty who obtained the new trial. Held, That such taxation was wrong, and the costs accordingly deducted. McEachern V. Ferguson, 3 Kerr 355. 48— Bribery Act— Counsel Fee. A Judge has no power to tax a higher counsel fee than five guineas on the triul of a cause under the Bribery and Cor- ruption and Election Petition Act 1869. Herbert v. Ilannington, Trin, T. 1.S72. 44— Copies of deeds. Where copies of deeds are adduced under the Act of 7 Wni. 4, c. 15, the success- ful party is entitled to the costs of all copies actually read in evidence. Doc d. Thomson v. Allanshaw, 1 Kerr 93. 46— Change of Attorney— Subpoenas. Costs of changing the attorney are not taxable against the adverse party. The number of subpoenas allowed must depend upon the particular circumstances of each case. Boberts v. White, Trin. T. 1831. 46— Beplevin— Costs— Claim by third party. Quaere, Whether the plaintiff in replevin is entitled to recover against the defend- ant as part of the costs in the cause, the costs of the proceedings taken under a writ de proprictate probanda issued upon a claim of property put in by a third per- son under the 1 Uev. Stat. c. 126, s. 12? Held, per Ritchie, C. J., and Allen, J.. That he is : N. Parker and W ilmot, J. J., contra. Goddardx. Tuck, Tfil. T. 1866. 47— Difibrent Issues. In replevin, where some issues are found for the plaintiff and some for the defend- ant, each party is entitled to costs on the issues found in his favor. Dickinson v, Kctchnni, Br.r. 03. 48 — Where a defendant pleads non ccpit, and property on which issues are joined, and succeeds on the first issue only, he is entitled to the general costs of the cause and is liable to pay the costs of the other issue. Stephenson v. Milliken, 1 KerrM. 49— Inquisition. When the verdict is for the defendant on an inquisition taken on u writ dc proprif- tate probanda, under the Act 4 Wm. 4. c. 38, the defendant is not entitled to the costs of the inquisition. Wilson v. 6'wrr^, Mich. T. 1834. a— Replevin bond— Counsel fees. The plaintiff's attorney in an action on a replevin bond, cannot add to the taxed COSTS. COSTS. Ill 31aim by third i.saues are found for the defend- id to costs on the Vic/cimon v. pleads non ccpll, issues are joined, issue only, he is osts of the cause costs of the other lliken, lKcrrb6. costs, a sum paid by the plaintiff for coun- bel fees. The costs meationed in the condition of a replevin bond mean tax- able costs. Steen v. Hanson, 4 All. 589. SO-Sheriffs Fees. Sheriff's fees, on executing a writ of re- plevin, 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 improperly issued. Me- Goican v. Beth, Mich. T. 1871. IJ eplevin — "Witnesses — Materiality. See No. 96 a. 61— Beferenoe of cause to arbitration —No direction as to entering up judgment. A cause was referred to arbitration, un- der a Judge's order, which directed that the costs should abide the event of the award, and that judgment should be en- tered up for the successful party, but without directing in what manner it was to be entered up — (the arbitrators made an award in favour of the plaintiff for i £2 4s.) Held, That as no judgment could be entered up on the award, the plaintiff was not entitled to costs, either under the Act of Assembly 4 Wm. 4, c. 45, or the Statute of Gloucester. Burns V. Chapman, 3 Kerr 192. 62— Charge of Arbitrators— Taxed costs. Where a cause was referred at nisi prius the award to be entered as a verdict — "' with costs to be taxed " — the charge of the arbitrators for their services cannot be allowed in the costs. JUcMuhcu v. Dibble, Trin. T. 1831. 63— Motion for Judgment. A counsel fee is taxable on a motion for judgment as in case of a non-suit, though the motion is not opposed. York County Mutual Insurance Co. v. Hartley, East. T. 18G5. 64— Rule Nisi for new triaL Where a rule nisi for a new trial is re- fused, a fee of 6». 8 LAR Persons. 80— Persons— Bzeoutors. Executors are liable to costs on a non-suit in an action where ne unques executor is pleaded. Mitchell v. Long, C. Ms. 76. 81 — W^here an executor declared, upon pro- mises to himself, and upon an account stated with him as executor, as well as upon promises to the testatrix, and was non-suited, the Court allowed the defend- ant her costs. Executors of Grosvenor V. Agnew, Ber. 29. 82 — An administrator will not be relieved from his liability to the payment of costs under Act 7 Wm. 4, c. 14, s. 23, where he moves, not on matters appearing at the trial, but upon affidavits which are suffi- ciently answered by the defendant. Semble, The Act extends only to cases itt which executors or administrators were before that exempted from the payment of costs. Thompson v. Allanshaw, 1 Kerr 209. 88— Insolvent Debtor— Application. Cobts '(rill not be given on refusing tho first application of an insolvent debtor except in an extreme case : but the rule is otherwise on a second application, where the objections made to the former one are not fully answered. McFarlane V. Gordon, 2 A:1. 162. 84— Payment of costs— Condition- Second application. Where an application to discharge an in- solvent debtor was refused with costs, the Court refused to make the payment of the costs a condition precedent to another application. McFarlane v. Gordon, 2 All. 201. 86— Motions — Cognovit. — SatiiSfiictory answer. Where a motion was made to set aside a cognovit for fraud and collusion, and the charge was satisfactorily answered; the Court dismissed the charge with costs, to be paid by tho applicant, though the matter had not been moved with costs. Doe V. Crowley, 3 Kerr 294. 80— Quashing conviction. Court has no power to allow costs on 114 COSTS. COSTS. quashing convictions. 3 Kerr 356. Regina v. Stevens, 87— Mesne profits— Costs— Damages. As a general rule the plaintiflf after judg- ment against casual ejector is entitled to recover the costs thereof as part of the damages in an action for mesne profits. See Doc v. Dobson, 2 All. 446. 88— Discharging rule.— Mandamus. No costs are allowed on discharging a rule nisi for a mandamus, on account of the affidavits being improperly entitled. Re- gina V. Justices of York, 1 All. 90. 89 — A rule dischargeable without costs, if moved with costs will bo discharged with costs. Porter v. Bums, 1 All. 106. 90 — If a rule for setting aside proceedings with costs, is discharged on shewing cause, the costs of opposing it do not fol- low as of course. Kelli/ v. Wilson, 1 All. 199. 91 — The successful party should apply for costs at the time of discharging the rule. Ibid. 92 — When a rule nisi for a certiorari to re- move a conviction is discharged, the suc- cessful party is not entitled to the costs of opposing the rule. Ex parte Daley, 1 All. 435. 93 — Where a rule was discharged on the authority of a modern English case alter- ing the previous practice, the costs of opposing the rule were refused. Simonds V. Simonds, 2 All. 468. 04— Vexatious action— Staying pro- oeedings until payment of costs. Defendant obtained judgment ns in case of a nonsuit because plaintifl' did not try his cause pursuant to a peremptory un- dertaking; plaintiff having brought a second action for the same cause, the Court stayed the rrocecdings until the costs of the first suit were paid, the de- fondant's affidavit alleging his belief that the plaintiff was insolvent, and the second action \oxatiou8 — though the plaintiff stated that ho was prevented from trying his first action by iho absence of a mate- rial witness. (iJut See Danvers v. Mor- gan, 17 V. B. 630.) Estabrooks v. Mc- Kenzic, V. Ms. 41. 06— New triaL Where a now trial is granted " the costs to abide the event of the suit" and tho same party succoodB on the second trial, he is not entitled to the costs of shewing cause against the rule for setting aside tho first verdict. Nice v. Coi/le, Jlil. T. 1832. 96 — If the rule for a new trial is silent as to costs, the successful party on the second trial is not entitled to the costs of setting aside the first verdict. Weldon V. Weldon, 3 All. 148. 96 a — Beplevin — Plea - - Witnesses — Materiality. Where, in replevin, the substantial issue was the right to tho property, which was found for the defendant, ho is entitled to the costs of the ^ritnesscs called to sup- port his plea, though their evidence may not have been exclusively applicable to that issue. Fearon v. Murray, Trin. T. 1861. 96 b— Mortgagee— Bedemption of Mortgage. As a general rule, a mortgagee is entitled to his costs in a suit for the redemptiun of his mortgage ; but whore he had boon in possession of the property, and l.ad not kept accurate accounts of tho 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 as tho mortgagor hud improperly disputed part of tho amount claimed by tho mortgagee, he was not allowed costs : each party being ordered to pay his own costs of the suit, Livingston v. Bank of New Brunswieh; JUL T. 1865. VI. Several Defendantb— SEVEnM, Thsijks. 97— Several Defendants— Acquittal. Where four defendants, sued in trcNpuHB, entered a joint defence, in which i«HUt'» "^ere ioined in fact and in law, the plain- tiflf obtained a verdict against one, but the oiV iv three wore uc(|uitted on tho trial, and judgment was given for all the defendants on tho issues in law, which did not go to the whole cause of action ; after the lapse of more than one yviir from entering up tho judgment, the dolcndaut's agent having attended tho taxation of tho plaintiff's costs, and made objections without making any claim of costs, and soon afterward the dofeudiint against whom the verdict was found voluntarilv paid to tho plaintiff the da- Dir;^os and costs; and it not appearing in COSTS. COSTS. 115 ituntial issue this application that the defendants who wore acquitted incurred any costs, or that the other defendant had incurred niiy further costs in the joint defence than if he had been sole defendant: Held, That it would require a strong and clear case to authorize the Court to iiiturfure at such a distance of time. Held also, That the issues in law not goiu^ to, the whole cause of action, the defendants were not entitled to costs under the 7 Wm. 4, c. 14, s. 26. Mc- Lauchhin v. Wilson^ 3 Kerr 105. 98— Allocatur. liy the Ordinance an allocatur is allowed to un acquitted defendant entitled to judgment for his costs under 7 Wm. 4, c. 14, s. 24. Killeen v. Burke, 3 Kerr 419. 08 -jSntry of Jud^ent. Where, in an action of trespass against four defendants, the plaintiff obtains a verdict against one upon which judgment is entered, and the other three are ac- quitted, the acquitted defendants cannot enter up a separate judgment for their costs, but the award of costs should be entered on the plaintiff's judgment roll — same rule as to demurrer. McLauch- lan V. Wilson, 2 Kerr 626. 100 — Entry on Judgment Roll — Applica- tion — Lateness. See Ibtd, 3 Kerr 105. 101— Several Issues— Difibrent Find- ings. In replevin, the defendant pleaded non rrpi't, and property in himself; a verdict was found for the defendant on the first issue, and for the plaintiff on the other. Hold, ist. That as the plea of non cepit went to the whole cause 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 pro- vincd to support that issue. 2nd, That the plaintiff was entitled to the costs of « the other issue, and to h&^o them de- ducted from the defendant's costs. Ifol- (kriusHV, McKcndrk'h, 2 All. 21 3. • It must clearly appear that witnesses whose expenses are claimed, were necos- siiry to support the issues fouud for the nrty claiming. Ibul. 102 — Where on an issue on a plea of pro- perty in rtplovin, the jury find the property in part of the goods to be in the plaintiff, and the remainder in the do- fnndant, the plaintiff is entitled to tho costs of all the pleadings ; but each party is entitled to the costs of the evidence arising on that part of the plea which is found for him. Read t. Botsford, 4 All. 476. Separate executions may be awarded; or the Court may order tho costs of one party to be deducted from those of tho other, and execution to issue for tho bal- ance. Ibid. If, in such a case, the plaintiff neglects to enter up judgment within a certain time, the defendant will be entitled to the postca. Ibid. 103— Several Counts. If the plaintiff obtains a verdict on one of several counts, and there is no finding on the other counts, he is only entitled to costs on that count on which he ob- tains judgment. Wahh v. Fairweather, 2 All. 423. Taxation of costs on different issues. Costs 74. See 104— Nolle Prosequi Where plaintiff enters a nolle prosequi to one count of a declaration, the defendant cannot enter up judgment for his costs till tho other counts are disposed of. Allison V. ,S'»mVA, 4 All. 238. VII. Secuuity for Costs. 1 — A demand of particulars is not such a step in tho cause as to require the defend- ant to shew that at tho time of making tho demand, he did not know of tho plain- tiff's residence abroad. Johnson v. Gla- fier, Ifil. T. 1828. 2 — A company incorporated in Canada, and having no property in this Province, re- quired to give security for costs. Where security was demanded before pleading, and refused, defendant was allowed to ap- ply, and obtain seouritv at the next term, though ho had pleaded in the mean time. Quebec and Halifax Steam Navigation Co. V. Williston, Mich. T. 1834. 3 — A demand for security of costs sent by post, held sufficient. Abbot v. Ledden^ Bert. 33. 4 — Defendant must apply promptly after knowledge of tho plaintiff's absence ; and if he allows a term to pass without apply- ing, after ho knows of tho absonco, bocu- 116 COSTS. COSTS. rity for costs will not bo granted. V. De Veber, Her. 78. Gibbs 5 — Security for costs, without stay of pro- ceedings, ordered by the Court after plea, and notice of trial, though the defendant might have applied sooner to a Judge at Chambers : the practice of making such applications at Chambers not being of long continuance in the Province. Vance 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 application may be made to the Court on amended affidavits. Foster v. Amiraxix, 2 All. 541. VIII. Double Costs. If judgment is affirmed after error assigned, the defendant in error is entitled to double costs under the Stat. 13 Car. 2, c. 2, s. 10. Qumre, Whether the defendant is entitled to such costs where the writ of error is nonprossed. Gilbert v. Saj/re, 2 All. 512. IX. Offer filed undeh Act 18 Vic. c. 9, TO suffer judgment bv default. Where the defendant, before pleading, filed an ouurt. COUNTERM* .,!>. Notice of —Time wl'd given to save custn See (ieneral Rules 77. Notice of in(|uiry to save costs — liiHufli- cieuey of. See Practice IX, 10, 11. COVENANT. COVENANT. 119 COVENANT. 1— Construction— Mutual and Indepen- dent. The detiendant covenanted with the plain- tiff to teach him the trade of a blacksmith, and tiie plaintifi' covenanted to serve the defendant faithfully for five years, and not to absent himself from the defendant's service without leave. Held, That these covenants were mutual and independent, and that the non-performance by the plaintiff was no defence to an action a"ainst the defendant for breach of his . covenant. Hunter y, GIfford, 1 All. 701. 2— Breach of. A covenant "to keep up" a mill dam is broken by allowing it to remain out of repair after notice. Leonard v. Yming, 4 All. 111. 3 — To keep dam in repair, is a covenant running with the land. See Infra 10. Philps V. St. John Water Co. 4— Assignee of— Privity of estate- Conveyance. Where the assignee of a covenant running with the land, had parted with his estate therein previous to bringing the action — Held, That he had parted with his action also. Wallace v. Vernon, 1 Kerr 5. 6— Action— Lessor against lessee— Reversion parted with— Rent. 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 apportionablo. Hector (fcc, o/ l^ac/c- villc V. Bacon, Trin. T. 1864. Particular Covenants — Assignee of Term — Improvements. See Landlord and Ten- ant VI. 2. 6— For quiet enjoyment— Dam over- flowing. The defendant by deed, containing the words " gratit, bargain and sell," convey- ed to the plaintiff a mill and mill privi- lege, and aftitrwurds erected a dam on his own land further down the stream, by which the plaintiff's laud was overflowed, and his mill prevented from working. Hold, That this was a breach of the cov- enant for quiet enjoyment given by the Act 10 Vie. c. 42. Wells v. Trenholm, 2 All. 371. 7— Against Breotions— Assignee— Bstoppel. Plaintiffs being owners of land below low- water murk 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 brilt. H. afterwards extended his wharf beyond low-water mark and assigned to the de- fendant, who erected buildings on the wbarf. Low-water mark had receded to the outer end of the wharf since the grant was made. ~ ■ - bound the assignee, Held, That the covenant issignee, and that he was estopped from denying that the wharf was built and occupied subject to the con- ditions of the grant, and from claiming a right to build, as owner, of the land by accretion. Mayor &c. of Saint John v. Smith, 3 All. 103. 8— Lessee— Rights— Renewal of lease —Appraisement— Payment for improvements— Enforcing valid covenants. .A lease by a Church Corporation created by Act of Assembly 29 (jco. 3, c. 1, con- tained a oovenant, that, if at the expira- tion 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 pre- mises, erected by the lessee, should be ap- praised, and that the lessor Jir»t 2^">/"iff to the Iv.ucc the amount of such appraise- ment, 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 ap- praisement, that then the lessee should be entitled to receive " a new lease of the premises for a further term of twenty-one years upon the same terms and conditions of this present lease." Held, on renewal of the lease, that the lessee was entitled to the same covenants for payment for improvements and for delivering up pos- session on receiving such payment, as were contained in the former lease. Be- dell v. Hector ikc. of dhrist's Church, Frcdericton, 3 All. 217. Qurcre, Whether by the words " first pay- ing," etc. in the 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 whe- ther the lessor would only be liable on the covenant if ho re-entered without pay- ment. Ibid. 120 COVENANT. COVENANT. A covenant to do one of two things at the option of the covenantor, one of which is lawful and the other not, may be enforced as to that which is lawful. Thus a coven- ant in a lease by a Church corporation to pay the lessee for the buildings on the land 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 condi- tions at thi^ former lease, may be enforced so far as relates to the payment of the buildings, though that part which relates to the renewal may be void under the Statute 13 Eliz. c. 10. Bedvll v. Rector &c. of Christ's Church, Frcdcricton, 3 All. 217, Quwre, Whether the Statute 13 Eliz. c. 10, applies to Church Corporations in this Province ? Jbid. 1>~Oood Title— Existing Lease— Siur- render. The defendant demised land to M. for a term of years, by lease under seal, and afterwards, with the consent of M , oon- ve} ;o ^auic land, with an adjoining pie' J. tc the plaintiff in fee, and oovc- uanted that it was free from incumbran- ces. M. remained in possession of the land after the conveyance, but paid no rent. Held, 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 covenant. Babbit v. Cow- perthtoalte, 3 All. 254. The mere consent of the lessee to a convey- ance by the owner of the land, of his in- t«reBt in the reversion, will not constitute a surrender of the lease by the operation of law. He must bo a party to some act done, the validity of which he is estopped from disputing, and which would not be valid if the lease had continued to exist. Ibid. 10— To keep dam in repair— Construc- tion. Defendants being the owners of land through which a stream of water flowed, and across which they had built a dam connecting with a natural bank or point of land which formed part of the dam, leased the laud adjoining below the dam to the plaintiffs and P. (who afterwards assigned to the plaintiffs) and their as- signs, and covenanted to maintain and keep the dam in good repair at all times during the term : proviso, that if the sup- ply of water should be cut off by the de- struction or injury of the dam, the rent should be suspended. The bank was broken by an extraordinary flood, which overflowed and injured the plaintiffs' pro- perty. Held, Ist. That the covenant to repair only extended to the artificial dam built by the defendants, and not to the natural bank. 2nd. That even if it did extend to the natural bank, the accident was no breach of the covenant, if the de- fendants repaired the dam within a reason- able time. 3rd. That even if there was a breach of the covenant, the plaintiffs were not entitled to recover for the destruction of their property and suspension of their business, as damages resulting from such breach. Philps v. The St. John Water Compaiij/, 4 All. 24. The covenant to keep the dam in repair ia a covenant running with the land ; and semble that the damages recoverable for breach of such a covenant, are confined to those sustained by the covenantee or his assigns, from the privation of the pro- per use of the demised premises by the default of the covenanter. Ibid. Scmble, That if the injury to the plaintiffs' property was caused by the negligence of the defendants in not keeping the dam in repair, the plaintiffs might recover the consequential damages in an action on the case. Ibid. 11— For title to land— Eviction. The defendant conveyed land to A. iu 1844, and covenanted that ho had full power and authority to sell ; A. put a tenant in possession who gave up the pro- perty to I)., who claimed title to it as heir to his father. B.'s father took possession of the land in 1814, and died seized in 1824 leaving a widow, who a few years after conveyed her right and gave up pos- session to a person under whom the defen- dant claimed. Held, 1. That B. had a good title against every one but the origi- nal grantee, and therefore had a right to enter and evict A. 2. That B.'s entry having been made under his own title, and not under that of A.'s tenant, it amounted to an eviction, and that A. was not bound before bringingan action on the covenant, to resume possession of the land, or to give notice to the defendant of B.'s claim. liec/c v. Barlow, 1 All. 465. 12— Breach— Pleading- Judjpnent non obstante Teredicto— Bight of immediate action. To an action of covenant upon the words " grant, bargain and sell,' in a convey- CREDIBILITY. CREDITOR. 121 ance of land, assigning as a breach the existence of a prior mortgage, the defen- dant pleaded that the mortgage was re- corded in the public records, and that the plaintiff received the deed subject to such mortgage : an issue thereon having been found for the defendant, judgment was given for the plaintiff, non obstante vere- dicto, the plea being no answer to the action. The covenant is broken immedi- ately, and the plaintiff need not wait until ho is evicted before bringing his action. Good V. End, 1 All. 603. 13— Breach in Lifetime of Covenantee —Action— By whom— Heir— Exe- cutor. 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. Beele v. Barlow, 1 All. 465. 14 — Where the breach of a covenant for title, and the damage arising therefrom, both occurred in the lifetime of the tes- tator, the action for such breach should be brought by the executor. Cunning' ham V. Scoullar, 4 All. 385. 16— Policy of Insurance— Indorsement —Not under Seal— Covenant not maintainable. A policy of insurance on goods against loss by fire was effected in the name of G. F. & Co. ; the plaintiff H. F. having afterwards become the owner of the goods, the agent of the company made and signed the following indorsement on the policy: "This insurance is hereby continued in the name of H. F." Held (assuming that the agent had power so to continue the assurance for the benefit of the plaintiff), That the indorsement not being under the seal of the company, the plaintiff could not maintain covenant on the policy. Frost v. Liverpool, Lon- don and Olobe Insurance Co., Hil. T. 1871. Assignee of Lease against Lessor — Privity of Estate — Possessory Estate. See Assignment 3. Property taken subject to Covenant. See Equity 4. See Witness. CREDIBILITY. 16 CREDIT. Repairs of Ship — Agent. See Assumpsit 45. Unexpired Credit. See Action at Law VII. 2. Privity — Personal Responsibility. See New Trial II. 22. Salary of Preacher— Committee. The plaintiff was engaged at a certain salary as a preacher at a meeting of the members of the church to which he belonged, and where a committee was appointed to collect subscriptions to pay his salary. The defendants were deacons of the church present at the meeting, and there was conflicting evidence whether they were the committee and whether they had made themselves liable to the 1)laintiff. Held, That it was properly eft to the jury whether the plaintiff had engaged on the personal responsibility of the defendants, or whether he depended upon the voluntary subscriptions of the church. Queere, Whether the mere nomination of a party on a committee renders him liable on contraota entered into by the other members, unless he has taken some part in the proceedings. Latoton v. Wikler, 2 AU. 416. Intoxicating; Liquors. The prohibition in the Act 17 Vic. o. 15, B. 13, against selling liquors on credit only applies to inn-keepers and tavern- keepers. See McAuUy v. Lawlor, 4 All. 600. Inquiry— Judgment by Defbult— Evi- denoe. After judgment by default on common counts, defendant, on execution of writ of inquiry, may shew that he contracted merely as agent of third person to whom credit was given. See lault v. Sargent, 3 Kerr 248. Contract — Whether with Firm, or personal member of. See Contract 15. Insurance Broker — Credit to — Agent. See Principal and Agent 1, 2. Work and Labour — Agreement to Credit towards Rent. See Assumpsit III. 40. CREDITOR. Seo Insolvent Act of 1869. I Ju4guiont Creditor — Remedy at Law before — ApplioatioD in Equity. See Equity 6. 122 CRIMINAL LAW. CRIMINAL LAW. I. Procedure and Practice. II. Indictment. , Prosecutor. Allegations. Stealing Place. Smuggling. Copies of Indictment. Embezzlement. Different Counts — Separate Offences. Fraudulent Appropriation. Death — Cause of. Feloniously Striking. Resisting Constable. Regulations — Breach — Misdemeanour. Forgery — Perj ury. III. Evidence. IV. MiSCELI-ANEOUS. Summary Conviction. Peace IV. See Justice of the I. Procedure and Practice. 1— Bevenue Aot— Operation. The Revenue Act, 15 Vic. c. 28, s. 68, enacted that any penalty or forfeiture inflicted under that Act should be reco- vered by action of debt or information ; section 72 enacted that if any person should assault any revenue officer in the exercise of his office, ho should on con- viction, pay a fine not exceeding £100, nor less than £50, which fine 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 than three months, at the discretion of the Court. Held, That the Act only limited the discretion of the Court aa to the amount of fine and imprisonment on conviction for an assault under section 72, but did not alter the ordinary mode of proceed- ing by indictment. Rea. v. Walsh, 3 All. 54. 2— Alteration by Statute— EfEbot of. All offence committed before, though tried after the Revised Statutes came in force, is not indictable under those Statutes, though the words creating the offence are not altered thereby. Jie^, y McLmghlan, 3 All. 159. The forms of indictment in the Schedule to Title XL. of the Revised Statutes are inapplicable to offences not referred to in that title. Rey. v. McLauchlan, 3 AH. 159. 8— ITeoeasary Allegation— Grievous Bodily Harm. An indictment under the Act 12 Vic. c. 29, for causing grievous bodily harm, must allege the offence to have been committed " maliciously" in the words of the Act. It is not included in the word " feloniously." Reg. v. Jope, 3 All. 161. 4— Adjournment of Court. Where a Circuit Court is adjourned to a future day, in consequence of unfinished civil business, the criminal jurisdiction of the adjourned Court is not confined to the trial of offences committed before the adjournment. Reg. v. Dennis, 3 All. 423. 5— Arrest of judginent— Objections. Objections on motion to arrest judgment are confined to the questions in the case stated by the Judge under the Act. See Reg. V. Fenety, 3 All. 132. 6— Authority to find lesser ofltenoe— Mode of procedure established. The Revised Statutes c. 159, s. 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 misdemeanor, if the evidence warrants it, establishes a general mode of procedure in all criminal cases, and is not confined to. felonies ex- isting at the time of the passing of the Statute ; therefore, on an indictment for a felonious assault under the Act 25 Vie. c. 10, the prisoner may bo found guilty of an assault only. Reg. v. Ryan, 1 Ilan. 116. 7— Jury recommending no bill— Ter- mination. Where a bill of indictment laid before the Grand Jury was returned by them into Court with an indorsement " the Grand Jury recommend no bill," and no further proceedings are taken against the party, it IS a termination of the prosecution. Al ward V. Sharp, 1 Han. 286. 8— Assault— Revenue officer- Breaking { open building— Justification. By the Revenue Act 11 Vic. c. 2, a re- venue officer is authorized to enter any I building wherein he shall havo cause to suspect smuggled goods to be concealed, provided that before entry, information I on oath shall bo given to a Justice of tho Peace, that such officer has roasouablc cause to suspect such goods are concealed | therein, and that such Justice shall go CRIMINAL LAW. 123 LO bill— Ter- with the officer to such building, and au- thorise 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 Jus- tice to direct the officer to enter the build- ing and search for goods. Held, That to justify the breaking open a building, there should have been, 1st, a written in- formation on oath ; and 2nd, the actual presence of the Justice at the breaking ; his being near to the place is not suffi- cient. Reg. V. Wahh, 2 All. 387. Not opening a building after a proper de- mand, is a sufficient denial within the Act. Ibid. If the breaking open is unlawful, the officer cannot justify the seizure of smuggled goods found within the building. Ibid. Semite, 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. 8— Information to recover penalties- Breach of Revenue Law— Duti- able articles. By Act of Parliament 8 and 9 Vic. c. 93, gunpowder is prohibited from being im- ported into the British possessions in America, except from the United King- dom or some British possession. Held, 1st. That gunpowder coming from a for- eign country, could not be proceeded against as a non-enumerated dutiable ar- ticle, under the Provincial Revenue Act 11 Vic. c. 1, for being imported into the Province at a place not a port of entry, contrary to the Act 11 Vic. c. 2, s. 21. But 2ud. That it was liable to seizure and forfeiture under the seventeenth section of that Act, for being landed without en- try at the Treasury. The Attorney Oen- cral V. four hundred kegs of Gunpowder, 2 All. 493. The Provincial Legislature has power to impose additional grounds of forfeiture for breach of the revenue laws, on goods subject to forfeiture under an Act of Parliament. Ibid. II. Indictment. I l—Proseoutor— Qrand Juror. Where one of the Grand Jurors, by whom au indictmoDt for forcible entry and de- tainer was found at the Sessions, was the prosecutor, the indictment having been removed into the Supreme Court, was quashed, though after plea. Reg, y. Cunard et. al., Ber. 326. Affidavits shewing that the prosecutor was not present when the bill was found by the Grand Jury, and took no part in the matter, were not received : his name ap- pearing as one of the jurors in the caption of the indictment as returned on the certiorari. Ibid. 2— Allegation— Liability to Bepair. The Corporation of St. John being bound by public law to repair the highways in the city, it is sufficient in an indictment for not repairing, to allege that the de- fendants "ought of right" to repair, etc., without setting forth the particular ground of liability. Rex. v. Mayor (fee. of St. John, Hil. T. 1828. The Corporation is not bound to widen a bridge. Ibid. 3 — In an indictment under 1 Rev. Stat. o. 147, for unlawfully and maliciously pull- ing down a building, it is not necessary to allege that it was done " riotously. Reg. V. Ehton, Hil. T. 1861. 4— Malice. If a building is pulled down unlawfully, and without any bona fide belief by the defendants that they had the right to do it, the jury may infer malice; malice may be infericd from the commission of a wrongful act, forbidden by law, without any personal malice against- the owner of the property. Ibid. 6— For Stealing— Restoring Goods- Order by Judge. On an indictment for stealing goods, the prisoner was acquitted, the defence being that the goods were his own. Held, That it was virtually a finding by the jury th-nt the goods were not the property of the prosecutor, and therefore, that the Judge had no right to order them to be restored to him. Reg. v. Evelcth, Trin. T. 1861. —Stealing Goods in Foreign Country. On an indictment for stealing, it appeared that the goods were taken in the State of Maine, aud brought into, this Province. Held, That in the absence of proof, that the taking was larceny according to the laws of Maine, the prisoner could not be convicted of larceny here, Reg. v. Hill. Mich. T. 1863. 124 CRIMINAL LAW. 7— Murder— C>onviotioii for Assault. On an indictment for murder, the jurv found the prisoner guilty of an assault only, and that such assault did not con- duce to the death of the deceased. Held, on this finding, That the prisoner could not he convicted of an assault under 1 Rev. Stat. c. 149, s. 20. Reg. v. Oregon, 1 Han. 36. 8— County— Vessel passing through. By the Act 12 Vic. c. 30, s. 34, where any felony or misdemeanour is committed on any person on board any vessel em- ployed on any voyage on any navigable river, etc., such ofiience may be dealt with, tried, determined, and punished in any county through any part of which such vessel shall have passed in the course of the passage in which the offence was committed, in the same manner as if it had actually been committed in such county. Held, In an indictment for an assault committed on board a steamboat, on its passage between A. and B., but before it came within the county of B., that it was sufficient to allege that the assault took place within the county of B. Reg. V. Webster, 1 All. 589. 8— Bodily Harm— Design— Setting out means used. By the Act 12 Vic. c. 29, " whosoever shall maliciously by any means manifest- ing a design to cause grievous bodily harm, attempt to cause grievous bodily harm to any other person whether any bodily barn) be caused to such person or not, shall be guilty of felony." Held, That an indictment charging the prisoner with having maliciously assaulted J. M. and cut him with a knife, with intent to dn him grievous bodily harm, concluding com. a /ormam statuti, was bad ; the means used to manifest the design to commit a felony not being set out with sufficient particularity. Reg. v. Magee, 2 AU. 14. Held also. That the conviction could not stand for an assault, as the Act [Art. 17] did not apply where the indictment was defective, but where the evidence proved an assault under circumstances not amounting to a felony. Ibid. If the indictment docs not charge a felony including an assault, the prisoner cannot bo convicted of an assault under Art. 17. Ibid. 10— Smuggling— InsufBloient Allega- tion. An indictment for smuggling, under the Revised Statutes, c. 29, charged in several counts : 1st. That the defendant unlaw- fully landed alcohol, subject to duty, and thereby smuggled the same. 2nd. That defendant unlawfully landed alcohol, sub- ject to duty, without reporting to the Treasurer, and thereby smuggled, etc. 3rd. That the defendant landed the alcohol without a permit, and thereby smuggled, etc. 4th. That the defendant landed alcohol without paying the duties. Held, 1st. That the indictment was in- sufficient ; as the mere unlawful landing of goods, without alleging any intent to defraud the revenue, did not constitute the offence of smuggling. 2ud. That the landing of goods without reporting them to the Treasurer, or without obtain- ing a permit, though it subjected the party to a penalty, did not amount to smuggling. 3rd. That the mere landing of goods without a previous payment of duties is not a breach of the revenue laws. Reg. V. Cassidy, 4 All. 623. 11— Furnishing copies of indlotment after aoquittaL After an acquittal, no copy of an indict- ment should be furnished without the order of the Judge or the fiat of the At- torney General. Heaney v. Lynn, Ber. 27. 12— Embesslement- Property not in prosecutor. The prisoner was apprentice to a baker, and had authority from his master to de- liver bills for bread to customers, and re- ceive the amounts. In payment of one account he received a bank check payable to his master " or order," upon which he forged his master's name, and received the money from the bank. Held, on these facts, That ho could not be convict- ed on an indictment charging that he did, by virtue of his employment, as the ser- vant of A. B., take into his possession a certain sum of money, for and on account of the said A. B., and did feloniously em- bezzle the said money, so being the pro- perty of the said A. B., the money re- ceived by the prisoner never having been the property of A. B. by reason of the forgery, but the property of the bank; and not having been received by virtue of the prisoner's employment as the ser- vant of A. B. Reg. V. Hatheway, Hit. T. 1866. CRIMINAL LAW. 125 Lent Allega- >f indictment iperty not in 13— DifEbrent Counts— Separate offence —Evidence. Where a prisoner was convicted on an in- dictment containing two counts, charging separate offences and sentenced, and the evidence did not sustain the charge in one of the counts, but proved an offence of a different character, the judgment was arrestfid. Reg.y.Hatlieway, Hil. T.\%6Q. 14— Larceny— Place of trisL Larceny committed on the high sea on a voyage from Ireland to Saint John, does not come within the 1 Rev. Stat. c. 158, s. 10, relating to the place of trial of of- fences committed during a voyage, but may be tried under the Act of Parliament 18 and 19 Vic. c. 91. Reg. v. Dillon, Hil. T. 1864. 16— Fraudulent appropriation— Place. The prisoner received from the prosecu- tor, in the County of Westmoreland, a quantity of boots and shoes to be sold on commission ; he took them to the County of Kent, where he resided, and then to the County of Glocestcr, where he sold them, and frauduloutly appropriated the money to his own use. On an indict- ment for larceny in the County of Kent, under the Act 27 Vic. c. 6, s. 1, which makes the bailee of a chattel, who fraud- ulently converts it, guilty of larceny, — the jury were unable to agree whether the prisoner fraudulently intended to ap- propriate the property in the County of Kent, or not until he had sold it in the County of Glocestcr. Held, That he could not be convicted on the indictment. Reg. V. Cormier, Mich. T. 1865. 16— Death caused by drowning. An indictment charged the prisoner, be- ing the mother of an infant of tender age, and unable to take care of itself, with feloniously placing it upon the shore of a river in an exposed situation, where it was liable to fall into the water, and aban- doning it there with the intent that it should perish ; by means of which expo- sure the child fell into the river and was suffocated and drowned, of which suffoca- tion, etc. the child died. Held, That to support the indictment it was necessary to prove that the death was caused by drowning or suffocation. Reg. v. Fenety, 3 All. 132. The objections on a motion to arrest judg- ment, are confined to the questions in the cose stated by the Judgo under the Act. Ihid. 17— Feloniously striking— Cause of death. An indictment charged the prisoner with feloniously striking the deceased on the head with a handspike, giving him there- by a mortal wound and fracture, of which he died. It was proved that the death was caused by the blow on the head with the handspike, but that there was no ex- ternal wound or fracture, the immediate cause of death being concussion of the brain, produced by the blow. Held, That the evidence supported the indict- ment. Regina v. Shea, 3 All. 129. 18— Besisting Constable —Form of ex- ecution. An excoution issued by a Justice of the PeaM i« suffioient, if it substantially fol- lows tht form K in the Schedule to the Rev. S*at. o. 137 j and any person resist- ing a eonstable in executing it is liable to indictment. Reg. v. McDonald, 4 All. 440. 19— Begulations — Penalty — Misde- meanour. By Act 3 Wm. 4, c. 28, s. 5, Boards of Health were authorized to make such rules and regulations for the preservation of the public health, and the prevention of infectious distempers, with such penal- ties and forfeitures tor breach thereof, as they might deem necessary. By subse- quent sections of the Act they were au- thorised to enter buildings and cause the removal of anything injurious to health; to close up streets, etc. ; to prevent inter- course with vessels, and order them to quarantine; and by section 11 whoever should violate any of the orders of the Board, or wilfully neglect to act in obe- dience thereto, or should resist or obstruct the lawful execution of any such orders, should, for every offence "bo deemed guilty of, and punishable as for a misde- meanor." The Board made a regulation against the use of slaughter houses with- in certain limits. )>i)t attached no penalty to the breach ol it. Held, Ist. That the omission of a penalty did not render the regulation void ; and that the defendant was liable to indictment for a breach of it either at common law or under the 11 section. 2nd. That the 11th section ap- plied to the violation of any regulation or order the Board was authorized to make, and was not limited to the orders authorised by the sections of the Act, subsequent to the fifth section. Regina v. Ilartt, Trin. T. 1833. \m 128 CRIMINAL LAW. CROSS EXAMINATION. 20— Forgery— Bank Note— What amounts to. Forgery, or uttering in this Province a writing purporting to be a bank note is- sued by a Banking Company in the State of Maine, amounts to the crime of forgery, though it is not proved that the Com- pany had power by its charter to issue notes of that description. Heg. v. Brown, 3 AU. 13. 21— Perjury- Power to administer Oath. A Commissioner authorised to take affi- davits 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 a party swearing falsely in such an affidavit cannot be indicted for perjury. Jieg. v. Mcintosh, 1 Ban. 372. 22 — Semhle, Perjury maybe assigned where the oath has been administered on the Common Prayer Book of the Church of England. See McAdam v. Weaver, 2 Kerr, 176. See Perjury. III. Evidence. 1— Evidence— Confession of Accom- plice. In an action of trespass for false impri- sonment, the defendant pleaded that a felony had been committed, and he had reasonable grounds to suspect the plaintiff, and therefore arrested him and detained him until he was taken before a magis- trate. 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. Blair v. Hopkins, 1 Kerr 640. 2— Wife of one of two parties on trial not competent witness for either. A. and B. were tried together on a joint indictment for an assault on a peace officer, and the wife of A, was offered as a witness to disprove the charge against B. Held, That her evidence was pro- perly rejected, but had the husband not been on his trial she would have been a competent witness. Tlie Queenv. Thomjp- aon and Conroy, 2 Han. 71. Idem, (See The Quern v. Thompson and others, L. R. 1 Vol. Crown Q. Reserved 377.) 3— Deceased Witness— Statement. The statement of a deceased person, taken on oath by a magistrate, detailing the circumstances under which a felony was committed upon hiui, is admissible ia evidence on the trial of the accused under 1 Rev. Stat. c. 156, s. 7, though it is headed, "The complaint," etc., in- stead of " The e ""ation," etc., and does not appear o :oe to have been taken in the preseuue of the accused, it being proved that it was taken in his presence. Reg. v. Afillar, Hll. T. 1861. IV. Miscellaneous. Constable— Fees— Judge certifying. A Judge presiding at a Court of Oyer and Terminer has no power to make an order for the payment of constable for attending the Court, or swearing the at- tendance of witnesses in a criminal trial. (But see Acts of Assembly 35 Vic. c. 12.) Mulligan v. Rainsford, 2 Han. 1, Certified fees of a constable may be recov- ered in an action before a Justice of the Peace, when suffir funds in County Treasurer's hand y them. Ibid. Acts relating to at^^.. .ce of (irand and Petit Jurors in criminal matters at Coun- ty Court are within powers of local Legis- lature. See County Courts 10. CRIMINAL INFORMATION. 1 — If the conduct of the prosecutor has been blameablo, the Court will not grant a criminal information against a magis- trate, at his instance ; but if the conduct of the magistrate is not justifiable, the rule will be discharged without costs. Rex V. Munro, East. T. 1831. 2 — A rule for a criminal information will be discharged with costs, where the facts upon which it was granted are disproved by the affidavit on shewing cause. Rex V. Bates, Trin. T. 1832. CROSS ACTION. See Damages 11. CROSS EXAMINATION. No right to prove justification upon, before defence opened. Re-examination upon. As to contents of written statement. See pjvidcnco VIII. CROWN GRANT. CROWN. Bight to enter on land used as a public road. See Highway 17. CROWN BONDS. The Statute 33 Hen. 8, c. 39, extends to this Provinoe, and therefore the lands of a bond debtor to the King are bound from the date of the bond. Rex. v. JMc- Lawjhlan, Mich. T. 1830. 1— AdmiflBion— No Estoppol. In an action on a Crown Bond, in which the defendant pleaded nan est /actum, Eroof of an admission by h'"; ;hat it wns is bond, is not an cstopp<^l ; iii>J evidence having been given by the Crowr of the handwriting of the subscribing witness, the defendant was allowed to give evi- dence that the signature of the witness was a forgery. T. 1864. Reff. T. Robertton, Hit. 2— Summary Application for Belief— Scire Facias. Where the Attorney General had insti- tuted a suit on behalf of the Crown by scire facias on a Treasury bond, condi- tioned for the payment of duties, the Court refused upon a summary application on affidavits for relief under the Statute 33 Hen. 8, c. 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. Sureties application for relief under 33 Hen. 8, c. 39, s. 79. . See Principal and Surety 7. CROWN GRANT. I. CONSTRUOTIOX. BOUNDARIES. Evidence. Possession. Meaning of Words. Necessity of Inquest of Office. II. RiaHTS. Mines and Minerals — Fishery — Glebe— Seizin— Ferry— Right to Soil. III. Exceptions. Mines — Minerals — Coals. IV. Admission. Adverse Possession. Against Crown. Extention of boundaries by. Subsequent Grant. I. Construction. 1— Controlling Iiine. . 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 the second alternative in the description should be the controlling one, and that the land was bounded by the road. Rex v. WHson, Ber. 1. 2— Bounded by lake— Margin. A grant of land bounding on a lake, con- veys the land to the margin only, and not to the centre of the lake. Miles v. Burke, HU. T. 1873. 3— Dividing LineB— Boundaries— Sev- eral grants— Courses inconsistent. The course laid down for the rear or dividing line between two several ranges of lots, granted by the Crown in two contemporaneous grants, founded upon one general survey of land lying between the Saint John and Kennebecoasis rivers, is not conclusive, where it is manifest that such course does not correspond with the delineation on the grant plan; is inconsistent with other parts of the de* scription in both grants, and will not properly divide the land, or give the lots their several lengths and quantities. Fowler y. Dowling, 1 Kerv 581. 4— Boundaries— Protraction. In construing the description of boun- daries in a grant, ascertained lines, in the nature of fixed objects, will control courses and distances, when the course of a line is not expressed, protraction on the plan of the grant may be resorted to as an element for ascertaining the course. The marks of the original survey are to be sought for and adhered to in deter- mining the boundaries of a grant. Whelp- ley V. Lyons, 2 Kerr 276. 6— Subsequent Grants— Beference to. If the bounds of a lot of land are clearly ascertained by the grant, it cannot bo extended by subsequent grants; but if there is any uncertainty as to the lines of a grant, subsequent grants of the Crown to other persons of adjoining lands on which the lines of the prior grant are described, may be referred to, in order 128 CROWN GRANT. to shew where the Crown considered the lines of the prior grant to be. Doe dem. Pcnsford v. Vernon, 2 Kerr 351, 6 a— Adoption of Line by Crown— De- soniption in Previous Qrants. Plaintiff claimed, under a grant issued in 1868, which described his land as run- ning to the roar or last line of the Pcnobscott Association Grant, and re- ferred to the plan annexed, which laid down that lust line; but the plaintiff contended that the line so described on the plan was not the correct line of the old Pcnobscott grunt, and that his land therefore would extend beyond that to where be contended the correct line was. The defendants shewed that by several other grants besides the one to the plain- tiff, the same line as laid down on the plaintiff's plan had been described on the plans as the said last line, and the Court Held, That in that way the Crown had adopted that as the true lino of the Pcnobscott grant, and that the plaintiff could only claim to it. Ar'-'a v. JMc- Clure, East. T. 1871. 6— Subsequent grant— Evidence of possession out of Crown. Where land granted by the Crown in 1889 was described as being in rear of a certain lot No. 33, and between that lot and a lot No. 39, granted in 1784, subse- quent grants from the Crown in 1786 and 1787 of adjoining lands to third persons, in which lot No. 33 is described as ex- t«udiug to and bounded on lot No. 39, an evidence to shew the Crown out of pos- session of the land described in the grant of 1839, so as to prevent that grant from operating without a previous inquest of office to re-vest the possession in the Crown. Doe dem I'om/ord v. Vernon, 2 Kerr 351. 7— Explanatory, but not to alter or vary. If there is any uncertainty as to the lines of a tract of land granted by the Crown, eubHcquont grants from tho Crown to other persons in which tho prior grant is referred to, may be looked to for tho pur- pose of considering where tho Crown con- sidered tho linos of the prior grant to be ; but not to vary its duseription, or alter its construction. Dved, Carpenter \, Jo7ics, 3 Kerr 165. 8— Evidence— Bound a. A grant fVom the Cr"wn is not oonolusivo ovideoco as to tho bounds of any grant referred to therein, further than such bounds affect the premises of the grant itself. Doc d. Carpenter v. Jones, 3 Kerr 155. 8— Courses and lines by description in grant. The true lines of a tract of land must be ascertained by the courses and distancea specified in tho grant, and particularly delineated on the plan of survey annexed, When there is no ambiguity in tho de- scription, and no proof of any actual sur- vey contemporaneous with the grant, varying from tho courses and distances therein specified. Doe dem MorriBon v. McAlpin, 2 Kerr 467. 10— Fnor and subsequent grants- Description. A prior grant must have its effect, and the Crown cannot by a subsequent grant derogate from its own act, and limit the boundaries of the prior grant. Thui;, where a grant to tlie plaintiff ..... de- scribed as commencing at a stake stand- ing at the south east angle of lot Nq. 8, and by the plan annexed to tho grant this stake was represented as distant 12 chains from the south east angle of lot No 7 (a fixed point), thereby shewing lot No. 8 to be 12 chains wide, and by a subsequent grant of lot No. 8, also de- scribed as commencing at the south cast angle of tho same lot No. 7, it was repre- sented as being 15 chains wide, Held, That this could not interfere with the prior grant to tho plaintiff. Robinson v. Wilson, 3 Kerr 301. 11— Lines agreed and acted upon— Beo' tifying Error- Reasonable Time. In ejectment, tho lessor of tho pluintifT for upwards of twenty years before the defendant's occupation, was in posscssiun of the locus in quo ns part of lot 43, granted in 1809, up to tho rear of the boundary of that grant, ran by a Crown surveyor in 1828; and it appeared in defence that the lino so run in 1828 wiui at the instance of the lessor, who took part in the survey and cstablislicd tho rear boundary, and this rear boundary was made tho base lino of a second tier of lots surveyed and returned to the land oflice, upon which a grant of such lots atlerwards canto out and was predicated, and tho defendant became tho purchnncr of lot 43 at Sheriff's sale, and went into posBOSsiou of tho locus in quo as part of it about oightoon months boforo tiio trial; CROWN GRANT. 129 the lessor in reply, shewed that after such possession he, without the assent of the defendant, got another surveyor to run the rear line, who made it eight rods fur- ther in than the Grown surveyor had done, and endeavored to shsw 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 defendant'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 pe- riod, but the first line having been agreed to ut the time, and acted on by all parties interested, neither the Grown itself nor any person coming in under it, could then dispute such line. On motion for a new trial, on the ground of misdirection — Held, That such direction was right. Sembk, That sixteen years is not a rea- sonable time within which to rectify such an error. Doe dem. Belding v. Hallett, 3 Kerr 359. 12— Lines ascertained by earlier nrant —Exterior Boimouuries and Inte- rior Divisions inconsistent— Ao- quiesoenoe. The plaintiff and defendant being pro- prietors of adjoining tracts of land, the boundary between which . tracts had not been ascertained by actual survey at the date of the grant and was in dispute — the tract belonging to the plaintiff being contained in a grant made by the Grown in 1809, and that of the defendant in a grant made in 1806. Held, That the true lino must bo ascertained by the terms of the earlier grant, regard being first hud to the natural boundaries 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. Govnnj, 4 All 144. The oxprcHsion of quantity in a grant is descriptive, and is not to bo disregarded where the boundaries are doubtful. Ibid, The courses and distances of the exterior boundaries of a grant are rather adhered to, than tlioso of the interior division of tliu tract into lots, where both cannot be reconciled, and the dispute relates to the extorior^boundary. Ibid, 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 ou the condition 17 that the true line should be aaoertained and run, cannot establish it as a conven- tional boundary until it is acquiesced in and acted upon by both parties. Brevier T. Govany, 4 All. 144. 13— Boundary by Shore of Tide Biver —Land below high water mark. A grant bounded by the shore of a tido river does not convey any title to the land below high water mark, though it is described as one tract of land situated on both sides of the river. Lock v. Cleve- land, 1 AU. 390. 14— Controlling Distances— Ascertain- ed Angle. Where one of the lines of a grant was described as running a certain number of chains, or to the northwesterly angle of a grant to A., such angle being capable of ascertainment, controls the distances men- tioned in the grant, whether it exceeds or falls short of the specified number of chains. Hanson v. Mawheney, 2 Han, 11. 16— Land Unimproved or Unoccupied within Twenty Years— No Ad- verse Possession. The grantee of the Crown, according to the ordinary mode of granting wild land in this Province, being deemed prima facie in possession of the land granted when there is no adverse occupant, it is sufficient for a plaintiff in ejectment, who claims under such a grant more than twenty years old, to shew that the land within tnat period remained in its natural state and unenclosed. Doe dem. Des Barren v. White, 1 Kerr 595. 16— Beoitals—liron-BegiBtry— Inquest. A grant of land from the Grown to A. in 1805 recited that a prior grant of the same land had been made to B. in 1765, under the great seal of Nova Scotia, and that such grant had not been registered in this Province, as reciuired by the Act of Assembly 26 Qeo. 3, o. 2, and also recited that it had been represented to the Gov- ernment of this Province that the land had been sold and conveyed by B. to A. Held, 1st. That the recitals must bo taken together, and that in the absence of any other evidence of the grant to B., and of the oonvoyanco 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, e. 2, need not be found by inquest of office in order to onublo the Grown to 130 CROWN GRANT. re-grant, at least, to the original grantee or his assigns. Doe dem DesBarres v. WkUe, 1 Kerr 595. 17— Subsequent Qrant— Beoocniition of Lines of Prior Orant— Presump- tion of Adoption by Crown. A grant from the Grown to A. and others, was described as extending from the first bound 500 chains, or until it met the prolongation of the rear line of a prior grant. The line of A.'s grant was ex- tended the 600 chains, and a rear line run at the end of that distance, upon which rear line the Crown afterwards bounded several grants of land by actual Purvey. Held, That as between the owners of lots in the grant to A., and the grantees in rear, that line must be considered as the boundary between the grants, though it appeared by a subse- quent survey that it was twenty c'-iains too far to the roar. Held also, Thai, -"s the Crown, after discovering the error, took no steps to rectify it, it might be presumed to have adopted it as the rear line. Gaudin v. McKilltgan, 2 All. 392. 18— Conditional Orant— Information for Intrusion— Inquest of Office —Authority to give ITotioe. The Crown by letters patent under the groat seal, granted to the defeudiint the right to occupy land for twenty-one years, unless the same should sooner bo reciuircd by tho Crown, on notif^c of whicn the grant was to cease and bo void. Held, on an information for intrusion, after notice and refusal to give up possession, That as tho removal of tho dufendunt was not founded on any broach of condition, or forfeiture, no inquest of office was necessary to terniinato his right. The Queen v. Ilehcrt, 2 All. 427. Semblc, That a notice that tho Qovcmment required tho land, signeil by tho Surveyor General of Crown lands in his official character, was sufficient, without proof of any previous authority from tho Crown to tho give notice. ll)i ored in the land. Such an exception, t it lout reserving a right to enter and dt^, will not, 08 a legal incident thereU), give a right to do any act on the land which will injure tho surface; and Qtuere, Whether a bare right of entry would be given as incident to such exception. Ibid. Sctnblc, That if tho mine had been opened and worked by the Crown before tho grant of the land, tlio righta incident to tho ex- ception would have been more extensive. Ibid. 2— All Ooals—Oonstruotion— Injury to Burftioe— Lioenae. An exception in a Crown grant of " all coals, and all gold and silver and other mines and minerals" extends to all car- bonaceous minerals; and thoroforo n 132 CROWN TIMBER. CUSTOM & USAGE OP TRADE. mineral, though not strictly coal, is ex- cepted. Gesner v. Cairns, 2 All. 596. The construction of a Crown grant cannot be limited by the Royal instructions, di- recting the Governor of the Province to reserve to the Crown certain minerals. Ibid. A license from the Crown to dig minerals in granted land where the mines are ex- cepted out of the grant, will not justify an injury to the surface soil. Ibul. IV. Admission — Adverse Possession AGAINST Crown. 1 — An admission in a grant from the Crown under the great seal of the Province, is evidence against the Crown. Rex v. Wil- son, Ber. 1. 2— Adverse possession against Crown— Sufflciency. To prevent a Crown grant from taking effect on the ground that the Crown had been out of possession for twenty years before that grant issued, the adverse pos- session should be defined, continuous and unequivocal. Mere isolated acts of tres- f)ass, without visible limit, and merely umbering on the wilderness land of the Crown, without clearly defined bounds, are not sufficient. &m,ith v. JUorrow, Mich. T. 1872. 8— Extending boundaries by Crown after grant. 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 par- ties claiming under the respective grants, intivr ««, though the Crown may not bo estopped thereby as against the grantee in the first grant. Aiton v. Bemill, Trin. T. 1872. CROWN TIMBER. 1— SeiBure of Timber— Flaoe— Onus proband!. Certain sticks of white pine timber hav- ing boon soiled by the proper officers of the Crown, as forfeited under the Acts of Parliament 8 Goo. 1, o. 12, and 2 Goo. 2, c. 35 — Hold, That upon the prosecution of such soiisuro, the onus proband i as to the placo where tho stickit wore cut being privuto, iind not Crown prupiTty, Huh up- on the claimant. Iteijina v. licveridae, 1 Kerr 58. 2— Liability to seisure— Disputed Territory. If timber has been cut upon Crown lands over which this Province has exercised and uontinues to exercise jurisdiction, it is liable to seizure here, though the ter- ritory where it is out is claimed by the Government of Canada as being part of that Province, and license to cut timber has been granted by that Government. Tibbits v. Allan, 3 Kerr 280. CROWN OFFICE. See General Rules 98. CURRENCY AND STERLING. Bills of Exchange— Premium- Standard. Where accounts are kept in Sterling uio- ney, the premium on bills of exchange drawn on England is not to be taken as the standard to ascertain the difference between currency and sterling, unless the money is payable in England. Qutere, Whether in such a case the value of ster- ling money, fixed by the Act 15 Vic. c, 86, should not be taken as the standard. Spurr V. Allison, 3 All. 464. CUSTOM AND USAGE OP TRADE. As to Bills of Exchange — Drawing — Lex Mercatoria, See Bills and Notes I. 6. Signing Judgment by default. See City Court. Practice contrary to regulations of Govern- ment — License cutting Timber — Whe- ther evidence of practice allowable. See Evidence III. 13. Issue on Invalid Custom. See New Trial III. 33. As to Payment of Rent. See Landlord and Tenant III. 13. Timber Trade — Acceptors of Timber Or- ders. See Contract 2. Port of Call and Discharge and Loading- Construing Policy of Insurance in refer- ence to. See Insurance 21. Scowagc — Loading Ship. See Contract 3, Goods laden on board 8hip dock according to custom of particular trade — Owner is entitled to contribution in general aver- age for a loss by jettison. See Shipping Law 10. Pond Keeper — Lien on Timber. See Lion 7. JiOHH of JiOgH by Stt)rm — Liability. Sco Pond Keeper. DAM. DAMAGES. 133 CUSTOM DUTIES. 1— British North America Act— Foreign GkK>d8— Onus proband! Certain liquors manufactured in Ontario, prior to July 1867, warehoused for ex- portation and having paid no excise duty, were exported to Portland, U. S., where they were landed and immediately export- ed to St. John, N. B., where they arrived after the British North America Act came in force, being under the control of the Customs authorities during the whole period of transit until they letl Portland. Held, That by passing through the Unit- ed States they did not become foreign goods, and were entitled to be admitted free of duty under the 12l8t section of the British North America Act That com- ing from a foreign country they were prima facie foreign goods, and the bur- den of proving that they wore not so, to the reasonable satisfaction of the Custom House authorities, was on the importer. Kinnear and another v. Robinson, 1 ffan. 659. 2— Lumber— Defence in action for penalty. Where the proper steps have not been taken to obtain exemption of the duty im- posed by the Act of Assembly 7 Vic. c. 18, on lumber shipped for exportation after the 1st May 1844, it cannot bo set up as a defence to an action for the penalty im- posed 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 boon taken to obtain exemption. Watson v. Marks, 2 Kerr 694. 3— Forfeiture of Qoods. An entry at the Custom House declared that the packages contained articles not subject to duty ; but some of them con- tained contraband goods. Held, That it was but one entry, and that being false as to some of the packages, tho goods were not duly entered, and the wholo wore for- feited under 1 Rov. Stat. o. 27, s. 10, — Rrjina v. *Si«Ja! barreh of Hams, 3 All. 387. COURTESY. See Tenant by Courtesy. DAM. See Mill Dam. Soo AHsuuipHit — Covoniuit — Negligonco — Damages — Waste — Ac- tion on tho (joso. Erection of Dam in stream capable of being used as a highway — Persons not injured have no right to destroy Dam — Injunc- tion to restrain. See Water Course. DAMAGES. I. Peinciples. Reoovery. II. Evidence. III. Pleading. IV. Default. V. Setting aside Assessment. VI. Excessive. VII. Miscellaneous. I. PaiNOIPLES — RECOVEaY. 1— Action on the Case— Waste— Da- mages confined to actual injury- Tenant in Common— Proportion. In an action on the case for waste by one tenant in common against his co-tenant, the damage must be confined to the actual injury done to tho premises, and to such portion thereof as the plaintiff's undivided share bears to the whole estate. Linton v. Wilson, 1 Kerr 223. 2— Erection of Dam —Overflowing Land. A., tho owner of land through which a rivor flows, is entitled to recover damages in an action on tho case from B., the owner of tho 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— Obstructing Biver — Corresponding Advantages. In an action for obstructing a river by orocting a mill-dam, it is not a proper question for the jury, whether the benefit derived by tho public from tho mill is sufficient to outweigh tho iuconvonicnoos occasioned by the dam. Jlowc v. Titus, 1 All. 326. 4— Sterling; and Ourrencv. Ill an action brought in this Province for tho value of goods sold and dulivored in England, tho plaintiff is entitled to re- cover such a sum in currency as will bo oquivalont to the donmud in sterling uionoy, according to tho rate of ^xohiiiigo at tho tiuiu of trial. (Sec Curroncy'nnd Sterling.) Vamphcll\. Wilson, Jicr, 205, mummmm^mmF 134 DAMAGES. DAMAGES. 5 — Such allowance recoverable under Oom- inon Counts, without specific averment of contract in sterling money, or state- ment 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 loft when forbidden by the plaintiff, and took no part in subsequent acts of trespass; the plaintiff's counsel elected to gu against all the defendants for the trespass. Held, That the da- mages were properly confined to such trespasses as were committed when all the defendants were upon the land. Mc- MlUan V. Fairlej/, 1 Han. ;J25. 7— Pailiire on delivery— Pall in Market Frioe. In an action for the wrongful detention of timber, the plaintiff is entitled to dam- ages for a loss sustained by reason of a fall in the market, between time when the timber should have been delivered to him, and the time he received it. God- ard V. Fredertcton Boom Co., 1 Han. 536. 8— Detention of Alcohol- Measure of Dama^e& In an action for wrongfully detaining n ?|uantity of alcohol belonging to plaintiff rom September 1867 till May following, when it was delivered to plaintiff, short 408 gallons ; the proper measure of dam- ages is — interest on the value of the alco- hol during its detention, the value of the 408 gallons short, with interest from Sep- tember 1867, and any depreciation in the value of the alcohol during its detention. Kinnear v. Robinson, 2 llan, 73. 9— Injury to Business -Agreement to assign Judgments, eto. In an action for a breach of a contract t^) assign to the plaintiff curtain judgments and mortgages upon his property, he cannot recover damages for injury done to his business and credit in consequence of the sale of his property under a doereo in a suit for the f()reelosure of the mort- gage, (idbirtv. (hmjihiil, 1 Jfau,4T\. 10— Wrongful Taking of Ooods~Mea- sure of Damages. Where the plaintiff has the immediate right to the possession of goods, the proper measure of damages in an action against the sheriff lor wrDiigCully taking them is, the vaiuo of the gonds at the time of the eimversion, though thoy were taken under an execution against a \)v.r- son who had performed labor upon them, and for which the plaintiff would be bound to account to such person. Ran- kin V. AfitcheU, 1 San. 495. 11— Disabling from Performance— De- duction of Money -Breach of Agreement to convey— Cross Ac- tion. In an action for breach of an agreement to convey property to the plaintiff oa payment of a sum of money by instal- ments, and which agreement the defend- ant had disabled himself from performing before the last instalment was due ; the plaintiff not having paid the last instal- ment, cannot recover it as damages for breach of the agreement ; being part of the same contract, the defendant is en- titled to have the unpaid instalment deducted from the damages, and is not driven to bring a cross action for it. Gilbert v. Campbell, 2 Han. 55. 12— Escape— Pinal Process— Debtor returning; to custody. If a prisoner in execution on final process escapes, and afterwards returns into cus- tody, the proper measure of damages is not necessarily the whole debt, but such sum as the jury think the detention of the debtor's body would have been worth during his absence. If there is no actual loss proved, the plaintiff is entitled to nominal damages. Kellj/ v. Jones, 2 All. 465. 13— Mesne Process— Sheriff not arrest- ing. Sheriff not liable for neglecting to arrest on mesne process, unless some damage sustained by his neglect. See Curran v. Beckwith, 3 All. 365. 14— Limit Bond— Rule of Damages- Execution. 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 execution. (See Limit Bond,) Mr.Kenzic v. Marsh, 2 Kerr 629. 16— Master and Servant— Entire Odd- tract. The defendant agreed to employ the plain- tiff for three years at an annual salary, I commencing on the 1st April 1848, but dismissed him without sufficient cause be- f )ro the end of the second year. Held, | That tliu plaintiff had an immediate right of action for broach of the agreement, in I which ho was entitled to recover damiigw for the loss sustained by tho hroacli of DAMAGES. DAMAGES. 135 not arrest- intire Con- the entire contract, and was not limited to the sum due at the time of his dismis- sal. Meade v. Doherty, 2 AIL 195. 16— Tenant in Common— Sale of Goods. In case of sale of goods by one tenant, his co-t«nant may affirm 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. Tay- lor, Ber.20\ . 17— Replevin— Plea Non Oepit. The defendant in replevin is entitled to damages on a verdict in his favor on the plea of 11071 ccpit if he gives such evi- dence as would have supported an avowry under the former law. See Pleading II. 28. 18— Interest— Instalment— Act silent as to. Interest not allowed on the instalment in assessment of damages. See Interest 2. 19 — Illegal exaction of Duty — Interest not recoverable on money paid, as damages. . See Interest 1. 20— Covenant to pay for Improve- ments — Appraised Amount — Interest recoverable on. Sec Landlord and Tenant VI. 2. 21— Nuisance— Owner of House not in actual occupation. The owner of a nouso of which ho is not in the actual occupation, may recover from a person who has placed an offen- sive nuisance on adjoining premises, damages for the injury sustained in not being able to lot the house advantageously in consequence of the nuisance. An owner is liable if ho let a building which required particular care to prevent the oocupation from being a nuisance, and the nuisance occurs for want of such care on the part of the tenant. Smith v. Humhert, 2 Kerr 602. 2— Trover for Bill of Exchange— Non- fulfilment of Agreement. An action by the payee ugaiiist the draw- er of a bill of exchange was discontinued im the terms of the acceptor placing the amount of the bill to tlie payee's credit with a third person ; and on the accept- or's representation that this had been dune, the bill was given up to him. Held, in an action of trover for the bill against the acceptor — Qtho amount not having been placed to the payee's credit) — That it might be presumed, under the circuni- Ntances, that the payee had given notice of dishonour to the drawer, and that the plaintiff was entitled as damages to the value of the bill at the time of the con- version, which, prima facie,, was the amount of the bill. McDonald v. Eoe- ritt, 3 Kerr 569. 23— Revocation of Arbitration Bond- Award. Where arbitrators, after a revocation, make an award which is otherwise unim- peached, the amount awarded is a proper measure of damages in an action on the arbitration bond. Hatheway v. Cliff, 2 All. 267. 24— Mesne Profits— Costs. As a general rule, the plaintiff, after judg- ment 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. Dohson, 2 All. 446. 25— Counsel Fees. The plaintiff in replevin cannot recover as part of his damages, an amount paid to counsel on the execution of a writ de proprietale probanda issued on a claim to the property put in by the defendant. Davi^ v. Vushing, Mich. T. 1863. 26 — Substantial damages may be recovered in replevin, though no special damage is alleged in the declaration. (Per N. Par- ker, J., special damage should be alleged. Firth v. Fitzgerald, lid. T. 1866. 27— Tort— Actual Damage — Jury not limited to. In actions of tort, tho jury are not limited to the actual damage sustained by tho plaintiff; therefore, where the actual damage was only ?2, and the jury gave a verdict for 840, it was held not exces- sive, lioic v. Belyea, 1 Han, 109. 28— Bill of Exchange— Damages. Semhle, That tho acceptor of a protested bill of exchange drawn in this Province, and accepted payable in England, is not liable to 10 per cent, damages under 1 Rev. Stat. c. 116, in an action brought here. Morrison v. Spurr, 3 AIL 288. 20— Vendor— Sum agreed to be paid for Land by Vendee. In an action by a vendor, for breach of an agreement to purchase land, tho plain- tiff cannot recover as part of his damages the sum which the defendant had agreed to pay for tho land. Fiujdey v. Gillcs' pie, Mich. T. 1872. 30— Subsequent neglect— Damage to Land. A Btroam diverted into a now channel by 136 DAMAGES. DAMAGES. the Commissioners of the European and North American Bailway under 19 Vic. 0. 17, became obstructed in consequence of the new channel filling up and over- flowing plaiutiflf's land. Held, 1st. That the Commissioners wore bound to keep the channel open, and were liable to an action for the damage to the plaintiff's land. 2nd. That the fact of the plaintiff having been paid by the Commissioners, land damages for the diversion of the stream, was no bar to his recovering damages for their subsequent neglect to keep the channel open. McLeodv. Com- missioners of E. and N. A. Railwai/, 1 Uan. 574. 81— Exemplary Damages— Wilftil act— Wrongful intent. In an action on the case for pulling down a house, and thereby preventing a Sheriff from executing a writ of restitution award- ed under 1 Kev. Stat. o. 126, the jury may give exemplary damages if the de- fendant has acted wilfully, and with a determination to prevent the process of the law from being executed. (See Em- blen V. Myers, 6 IT. & N. 54.) Allenach V. Deshrisai/, East. T. 1865. 32— Special Damage— Necessity of statement in declaration. 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 dnuingo is alleged in the de- claration. DomviUe v. Krvan, East. T. 1871. Land Damages — Subsequent damage. See Assessment I, 10, 11. Splitting up claim for. A party cannot split up his claim for damages and proceed for a part of the trespass at one time, and part at another. See Trespass III. 5. II. Evidence. 1— In Reduction— Mitigation. In an action for breach of a written con- tract, whereby defendant in consideration of £500 paid to him by the plaintiffs, agreed to convey to plaintiff a mill at P. as soon as he obtained a grant thereof. Held (Chipman, C. J. disst-ntiente), That the defoimant could not shew in reduc- tion of dauiiiges that at the time the agreement wu.s entered into, ho had delivered a quantity of logs to the plain- tiffs as a part of the consideration for the bargain. Smith v. Jiiliidge, 2 Kerr 408. 2— Warranty— Price— Unsoundness. In an action for the price of fish, war- ranted sound, the defendant may give the unsoundness of the fish in evidence in mitigation of damages, and is not obliged to resort to an action on the warranty. Smith v. Dunham, 2 Kerr 630. 3— Slander— Character of Plaintiff: In an action of slander for charging the plaintiff with stealing, evidence of the general bad character of the plaintiff is not admissible in mitigation of damages. WUlisttm V. Smith, 3 Kerr 443. 4— Plaintiffs Negligence— Destruction of third person's property by- For which Defendant liable. In an action for work and labour in un- loading a ship, the defendant cannot give evidence in reduction of the contract price, of the value of property in the ship belonging to a third person, which was destroyed by the plaintiff's negli- gence in discharging the cargo, and for which the defendant would bo liable to the owner of the property. Wilson v. Jarvis, 3 Kerr 671. 6— Special Damage— Allegation— Ad- missibility. Evidence of special damage in not being able to fulfil a contract for the delivery of logs, is not admissible under an nilv- gation in the declaration that the plaintiff was prevented by the act of the defendant from getting the logs to market, and thereby lost the freight and sale thoroof, Roiec V. Titus, 1 All. 326. 6— Expense of attending before She- riff's Jury. In trespass for taking goods, the expense of attending before a jury called by the sheriff to inquire into the right of pro- 1 perty, is not evidence under an allegation , of special damage by reason of loss of time, etc., in regaining the possession; and Qitiere, Whether it would be evi- dence in any case. (See 2 Han. Memt I v. Vosmnn.) Wilson v. Eills, Her. 324, 7— Mesne profits— Taxed Costs— Pay- ment must be shewn. Where the declaration, in an action fur I mesne profits alleged that the plaintiff waa obliged to, and did necessarily lay out and expend a largo sum of money in recover. ing the possession of the land, he cannot recover, as part of the damages, the costs DAMAGES. DAMAGES. 187 before She- of the judgment by default in the eject- ment, on the mere production of the taxed bill of costs, without proof of payment. Doe V. Cahill, 2 All. 650. 8— Bail Bond— Assignee of— Evidence. In an action by the assignee of a bail bond, when the only plea is rum est fac- tum, the plaintiff need not give any evidence 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. See I. 14. (See Bond — Limit Bond.) Scrihner v. Gibbon, 4 All. 182. 0— Admission- Action against Sheriff. Quxre, Whether in an action against the sheriff for an escape, evidence of the admission of the judgment debtor of his ability to pay the debt was properly rejected. See Kelljf v. Jones, 2 All. 465. 10— Nuisance— Erection of Steam MilL The evidence of persons living in other adjoining premises as to the injurious effect of the steam mill upon them is admiiisible in order to shew by necessary inference the damage done to the plaintiff by the erection. No other damage need bo shewn than the abridgement of the plaintiff's enjoyment in the occupation of his premises. Barlow v. Kinncar, 2 Kerr 94. U-'N'otioe of action— Statement. Where special damage is claimed in con- scquonce of an unlawful imprisonment by a Justice of the Peace, c. g., the cost of obtaining the plaintiff's discharge from prison it should be stated in the notice of action, otherwise evidence cannot be given of it. Seioall v. Olive, 4 All. 394. III. PliEADINQ. 1— Statute 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 — Held, That the effect of the plea of the Statute of Limitations wns not to bar the action, but to limit the recovery of da- mages to six years. Conners v. McLaij- gan, 2 Kerr 446. 18 2— Detention of Lumber— Subsequent replevy by plaintiff— Damages too remote. In an action for wrongfully detaining the plaintiff's timber, in which the declara- tion stated that, by reason of -he deten- tion, the plaintiff was prevented from manufacturing the lumber, and lost the sale of it, and his saw-mill was kept idle ; it is no answer to the plaintiff's claim for damages 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 dam- ages 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 ne- cessary consequence of the detention of the lumber. Godard v. Fredericton Boom Co., Trin. T. 1866. IV. Default. See Practice V. VI. Where damages had been assessed on an account by a Judge at Ohambors, 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. Scoullar v. Webb, 1 Kerr 520. See Judgment by Default. V. Setting aside assessment of pamaoes. 1 — It is no ground for sotting aside the assess- ment 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. Wheeler V. Goss, 1 Kerr 580. 2 — Whore, on a writ of inquiry before a Sheriff's jury to assess damages for the wrongful detention of liquor from Septem- ber 1867 till May following, the plaintiff gave evidence of transactions respecting the liquor prior to September, and also the expense of warehousing, insurance, and legal expenses, and no rule was laid , mi 138 DAMAGES. DEATH. down by the Sheriff for the guidance of the joiy 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. Kiimear T. Eobinton, 2 San. 73. VI. EXOBSSIVE. See Supra I. 27. " New Trial U. 34, III. 13, 14, 16, 17, 18. " Malicious Arrest, etc. "i. VII. MlSOXIiLANIOUS. Good and Ixui Counta Evidence on trial applicable to good Counts, no inference that damages were nven on bad Counts. See Amendment III. 6. Assumpsit — Breach of Agreement — Non- suspension of Action — Liquidated Dam- ages. See Assumpsit I. 1. Damages too remote. See Covenant 10. Breach of Covenant, and damage arising in lifetime of testator, action should bo brought in name of execntor. See Cun- ningham V. Scoullar, 4 All. 385. Conflicting Evidence — Damages l&rgo — Verdict not disturbed. See New Trial III. 17. Highway — Jury assessing, on view of land where no witnesses produced. See Ex parte Hehert, 3 All. 108. See Highways 20. Jury not confined to value of land merely. See Highways 26. Mandamus, requiring appraisers to assess damages. See Mandamus 6. Private Road — Presence of Justices. See Assessment III. 5. Apportionment of Damages — ^Trespass on two distinct lots of land. See Trespass IV. 6. Nominal Damages — Question fairly left to jury. See New Trial III. 18 a. Note pasrable in opeolflo artiolea. Qutere, Whether plaintiff can declare for special damt^ for not delivering articles. See Bills and Notes I. 13. Liquidated Damages — Claim for, provable under Bankruptcy. See Bankruptcy. Writ of Inquiry. Assessing damages on second writ held regular where jury gave no verdict, and were dismissed. See Ward v. Dow, Ber. 21., Assessment by Jury — Limit Bond. See Venire. See Assessment, Practice, Judgment by Default. DAMAGE FEASANT. When Cattle may be taken— Place. 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 he is appointed. The place of tak- ing is a question for the Justices' decision, and unless it is clearly against evidence the Superior Court will not interfere. Sterling v. Jonea, 2 AU. 522. Replevin for — Justice of the Peace — Juris- diction. See Justice of the Peace II. 11, 12. DEATH. 1— Of Husband— Abatement of 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. Ilanningtan t. McManamin, 4 All. 509. 2— Summary Action. On death of one of several defendants, before interlocutory judgment, suggestion should be made on memorandum of judg- ment. See Crane v. Goodine, 4 All. 371. Absconding Debtor. See Absconding Debtor 12. 8— Of Defendant pending motion for new triaL Where defendant died after verdict, and pending the determination of a motion for a new trial, the Court refrained from granting a new trial until the plaintiff had an opportunity of implying to have terms imposed. Kei/ v. Thomson, 2 Han. 224. Death of Intestate — Letters of Administra- tion — Evidence of See Evidence IV. 1. Affidavit endorsed on Deed of Administm- tor, not evidence of death of intestate. See Deed I. 24. DECK LOAD. DEED. 139 mity—Be-swearing— Answer— I)eath of one of several defend- ants. Where one of the persons named aa de- fendant in a suit had died before the summons issued, the pleadings were am- ended by striking out his name, and the answer was re-sworn. Byers v. Sarri- gan, 1 ffan. 231. DEBT. 1— Action— Sheriff. Action of debt will not lie by a sheriff on a limit bond, when he had received the prisoner into close custody after tak- ing the bond. See Campbell t. Henan, Ber. 73. Action of debt against a sheriff for an escape cannot be maintained in this Pro- vince under the Statute 1 Rich. 2, o. 12, which is not applicable to this Province. Wihon V. Jonet, 1 All. 658. 2— Legacy— Termination of trust— Ac- tion by Legatee. See Action at Law IX. 16. 8— Legatee. A legatee may maintain an action of debt against an executor for a certain legacy given by his testator. Ibid. 4— Bequest— Defence— Property un- sold. A bequest by a debtor to his creditor of a legacy to the amount of the debt, pay- able out of the proceeds of certain property which remains unsold, is no defence to an action by the creditor for his debt. See Bishop t. Robinton, 1 Han. 68. ./ DEBTOR. See Insolvent Debtor. Discharge of— At Suit of Executor — Per- sons beneficially interested agreeing to release. See Discharge. Discharge of defendant by one of several plaintiffs. See Discharge. By consent of plaintiff — Remedy on judg- ment. See Discharge. Refusal to discharge — Equitable satisfaction. See Action at Law IX. 1. DECK LOAD. Loss by Jettison — Contribution — Liability of master of ship for loss. See Shipping Law, DECEIT. See Warranty. DECLARATION. See Pleading — Practice. DECREE. See Supreme Court in Equity. DEDICATION. 1— Of Highway— Presumption. Dedication of a road to the public may be presumed from long user and the expenditure of Statute labor on the road, and a party may be convicted under the Act 5 Wm. 4, 0. 2, s. 16, for encroaching upon such a road as well as upon high- ways duly laid out under the Act. Reg. V. Bxuihanan, 3 Kerr 674. 2 — A public highway may be established in this country by dedication and user. See Highways 16. By Crown — Presumptive Evidence. See Highways 30. DEED. I. Dekd. II. VoLUNTAEy CONVKTANOE. III. Trust Deed. IV. Composition Deed. V. Miscellaneous. I. Deed. 1— Registry- BeUttion. A deed, when registered under the Act of Assembly 26 G-eo. 3, c. 3, conveys the estate by relation from the time of the delivery of the deed, when there ia no ftieme incumbrance which has obtained a priority. Doe dem. Bridget v. Q^int^ East. T. 1828. a— Adverse Possession— Registry not giving Possession. A deed registered under the Act 26 Geo. 3, c. 3, will not enure to give possession to the grantee, so as to enable him to maintain trespass against a person in the actual adverse possession of the land, and who took possession subsequent to the registry of the deed and the entry of the plaintiff under it, and continued such possession for several years before the alleged trespaas. Dunham v. King, Trin, T. 1831. ii\ •j-'j.! f 140 DEED. DEED. 8— Words "remise, release and quit olaim"— Execution, aoknowledg- ment and registry— Oood 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 certain described lands, having been duly executed, acknowledged and registered, pursuant to the Act 26 (ieo. 3, c. 3, is a good conveyance of land, within the meaning of the 10th section of the Act. Doe dem. Wilt v. Jardine, Bert. 142. 4— Statute of Uses and Enrolments in foroe. The Sutute of Uses 27 Hen. 8, c. 10, and the Statute of Enrolments 27 Hen. 8, c. 16, extend to, and are in force in this Province; therefore, a deed of bargain and sale, not enrolled according to the provisions of the latter Statute, nor regis- tered according to the Provincial Act 26 Geo. 3, c. 3, does not pass any estate to the bargainee. Doe dem. Sanington v. McFaddm, Bert. 153. 6— Words, priTileges and appurten- ances, etc.— Kight to use stream. A deed by which the grantor conveys a certain piece of land, " together with the " saw-mill thereon, with all and singular "the privileges and appurtenances be- " longing thereto; together with the " mill-pond, mill-dam, and any other " privilege connected with, or belonging " to the said premises," does not convey a right to use a stream flowing 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. Rogers v. Peck, Bert. 318. 6— Grantor disseised— IVo estate pass- ing. 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. Thomson v. Barnes, Bert. 426. 7— Deed destroyed— Bvidenoe—Feoff- ment. Where the only evidence of the contents of a deed destroyed many years ago, and under whioh the plaintiff claimed title, was that of witnesses who had read it, and heard it read; and who stated that it was a deed of the laud in dispute, from A. P., the grantee, to his daughter R. E. (one of the lessors of the plaintiflf ), 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, aud was to K. £., her heirs and assigns, for ever. Held, That sufficient did not ap- pear to enable the Judge to direct the jury that it was a deed of feoffment, or to determine its legal operation. Doe dem. Edgett v. Stiles, 1 Kerr 338. 8—Ezecution— Proof of. The execution of a deed of conveyance ig not proved by the magistrate's certificate of acknowledgment indorsed, without the certificate of registry. Joplin v, John- son, 2 Kerr 541. 8— Identity of Lot. Where the description in a deed desig- nated the lot by number, and referred to an inventory, which was not produced— Held, That there being sufficient evidence from the other part of the description of the identity of the lot to go to the jury, the deed was sufficient. McEachem v. Ferguson, 3 Kerr 242. 10— ITo memorandum of acknowledg- ment. Where a certified copy of a deed tendered in evidence under the Act 7 Wm. 4, c. 15, contained no memorandum by the Justice of the acknowledgment of" the duo execution of the deed, according to the Act 26 Geo. 3, c. 3. Held, That the deed was not duly registered. Doe dem Lyons v. Slavin, 3 Kerr 258. 11— Valuable consideration- Inequa- lity of value. In order to constitute a valuable consid- eration to support a conveyance, it is not necessary that the money paid should be of equal \alue with the property con- vcyod, provided the transaction is lorn fide. Fayson v. Good, 3 Kerr 272. 12— Acknowledgment— Proof of person taking, boinp' ^ -Tustioe of the Peace. Whcr '" morandum of acknowledg- mi ^od on a regi.'-tored deed, was su d, " Josephus y irc, J. Peace," bu. I not state m this Dody of it, that he w.i.~^ a Ja«tu'e of the Peace for the County ; ho • is allowed to be called as a witness to prove that he was so. lioh- inson v. Wilson, 3 Kerr 301. 18— Acknowledgment before Deputy Mayor. A deed acknowledged before a Deputy Mayor of a borough in Great IJritaiii, with the common seal of the boroui.'!) affixed, is a sufficient acknowlod{.a ii DEED. DEED. 141 under the Act 52 Geo. 3, c. 20. BMr V. Amumr, 3 Kerr 341. 14— Subsoribing Witness— Proof by. A power of attorney, proved by the oath of a subscribing witness before a compe- tent authority in Ireland, is sufBcient under the Act 52 Geo. 3, c. 20 : it need not be acknowledged by the person exe- cuting it. Maloneyv. Purdon, 3 Kerr 515. 16— Certificate of Proof— Signature- Judicial Notice. Where the certificate of proof of the execution of a deed was subscribed "Geo. D. Ludlow," without any description of his official character, cither in the certi- ficate or annexed to his signature. Hold (Carter, J. dtssentienle), That the Court would take judicial notice that a person named George D. Ludlow was Chief Justice of the Province at the time the deed appeared to have been executed; and that it was competent for the Regis- trar of Deeds to recognise the certificate as an authentic act of the Chief Justice. Watson V. Bay, 3 Kerr 659. le— Escrow— Need not be by express words. It is not necessary that the delivery of a deed as an escrow should be by express words, though it is in form an absolute delivery ; yet, if from the circumstances attending the execution, it can reasonably be inferred that the delivery was only conditional, it will operate as an escrow. Keator v. Scovil, 3 Kerr 647. 17— Foreclosure— Master in Chancery- Evidence of Proceedings. The deed of a Master in Chancery, pur- porting to be made in pursuance of a decree of foreclosure, duly registered, is evidence that all the proceedings on which it is founded were rightly done, without producing the decree. Jarvis v. Edgett, 1 Alkn 66. 18— Words "adjacent and adjoining." Semble, That there is no distinction between the words " adjacent" and " ad- joining," used in the description of the property in a deed. Doe dem Dunn v. Fitt, 1 Allen 385. 10— Witness deceased— Absence of other— Proof of Deed. A deed appeared to have been executed in the presence of two witnesses, one of whom, u Justice of the Peace, authorised to take acknowledgment of deeds, was dead ; no account could bo given of the other by persons who had the best means of obtaining knowledge of the inhabitants of the place where the deed was executed. Held, That it was properly received in evidence on proof of the handwriting of the deceased witness. Doc dem Chubb v. Haiheway, 2 All 69. 20— Uni'egistered conveyance— Vendee in possession. An unregistered conveyance of land ope- rates as a release, if the vendee is in pos- session at the time ; if he takes possession immediately after, it may operate as a feofiinent, as livery of seisin may be pre- sumed after a long possession. Doe dem McKay v. AUen, 2 AU. 191. 21— Easement— Soil not passinef. A, the owner of a saw-mill to which a pil- ing place was attached, conveyed the mill with " the privileges and appurtenances" thereto belonging : the purchaser ceased to use the piling place, as such, and built upon it. Held, That no title to the soil of the piling place passed by the deed ; but only an easement as appurtenant to the mill, which ceased when the pur- chaser built upon the land. Doe dem Hill v. Todd, 2 All. 261. 21 a— Soil of Mill-pond— Easement. A deed of a piece of land " together with the mill privilege, saw-mill and erections belonging to the same ; and also " all the pond or flowage above the said mill," con- veys no right to the soil of the mill-pond, but only an easement to dam the water and overflow the land for the purpose of the mill below. Herbeson v. Cunningham^ mi. T. 1873. 22— BeKistry before proof— Inadmissi- bility in evidence. Where, by the certificate endorsed on a deed, it appeared to have been registered before it was proved, it is not admissible in evidence as a registered deed by rela- tion from the time of proof. Doe dem Blair v. Ridemt, 3 All. 502. 28— Two deeds on one sheet — One Certificate of Begistry— Begistry Book evidence. Where two deeds were written on the same sheet of paper, and registered at the same time, but only one certificate of re- gistry and one number were indorsed, it may bo proved by the Registry Book that both deeds were registered. Doe dem Kerr v. McCulley, 3 All. 194. Qumrc, Whether a proper certificate of reg- istry could not bo indorsed at the trial. Ibid. 142 DEED. DEED. 24— Affidavit endorsed oi? deed— 7fot evidence of death of Intestate- Evidence of due sale, etc. The affidavit indorsed on a deed purport- ing to be made by an aduiiuistratpr under license from the Probate Court, is not evi- dence of the death, or of the granting of administration ; but only that the land has been duly advertised and sold. Doe dem Simpson v. Donovan, 4 All. 116. 26— Condition— Estate in possession- Immediate right of entry. A deed of land, subject to a condition that the grantor should receive and enjoy all the profits and emoluments accruing therefrom during his life, habeiulum, to to the grantee, his heirs and assigns, with a general covenant of warranty, conveys an immediate estate in possession, and not an estate in remainder after the death of the grantor ; and the grantee's right of entry accrues on the execution of the deed. Doe d. Baxter v. Baxter, 4 All. 131 . 26— Conveyance from grantor to him- self and others. A man cannot convey land to himself; therefore a deed of bargain and sale from B. to 0., M. and himself, and their heirs being inoperative as to B., vests the whole estate in C. and M. as joint tenants, and an action of trespass cannot bo maintained by the three on such title. Cameron v. Sieves, 4 All. 141. 27— Preparation of conveyance— Ven- dor. It is the duty of the seller of land to pre- pare the conveyance ; and if he has a wife who would have a right of dower in the land in case she iv ' -ved him, she should be a party to th< .."nvoyance. Steeenejf V. Godard, 4 All. 300. 28— Acknowledgment in Oreat Britain —Seal of Corporation. The acknowledgment of a deed in Great Britain was in the following form : " Be it remembered that on, etu., before me, T. 0., Mayor of the town of Southamp- ton, in England, porsonully appeared, eto- Given under my hand and seal the day and year first above written," ami signed by the Mayor, with a iioal affixed having the Words "Southampton Villa" inKcribed around what nppoarod to bo the City arms. Held, That it imported to be the corporate seal of Southampton, and not the privaU* seal of the Mayor, and thoro- fon; tlie acktiowicdguient was Huffieii^nt under the ? Uuv. Stat. o. 112. Dr. Vricr V. Jir:l,ii>i, 4 All. 330, 20— Description— Whole lot passing. A deed of conveyance described the land, as a piece of land, "being lot number seven" in the division of a certain pro. perty, and running from Crooked Creek eto. Held, That the whole of lot No. 7 passed by the deed, though the lino of thai lot did not run from Crooked Crook. Stiles V. Kiever, East. T. 1862. 80— Description in part Inaccurate- Effbct. Where part of the description is inaccu- rate, eficct is to be given to the descrip- tion first in order, and to the name ; ami a cumulative description, if it fails in point of accuracy, will be rejected. Ibid. 81— Barrister's Deed— Sale -Immediate execution. The Equity Act (17 Vie. o. 18), directs that on sales by a Barrister, he shall exe- cute a conveyance of the land "immt- diatelj/ upon such sale." Held, That this meant without any improper delay ; and that throe weeks after the sale was not an unreasonable time. Doe dem Jardine t. Coigley, Trin. T. 1863. J2— Consideration— Becoming bail. Becoming bail for the grantor, is a sui- ciontly valuable consideration to support a deed against a prior unregistered con- veyance. Croc/c/ord v. Equitable Insur- ance Co., Mch. T. 1863. 88— Escrow— Delivery of deed. To make the delivery of a deed oporat« as an escrow, it must bo delivered to a stranger, — not to the grantee. Hagyarty V. 0'Lca.y, Ilil. T. 1866. 34— No declaration of use— Oonsidera* tion— Money blank. Under the llegistry Act (1 llev. Stat, 0. 112) a deed from A. to B., ozprewod to bo " for and in consideration of the " sum of lawful money of the Pro- " vince," habendum to B., his heirs and assigns, but without any declaration of the use, is a sufficient oonveyauoo of the land to B. Scmble, That it sufficientiv appeared that the oonsideration of the deed was money, and the amount of consideration being unimportant, that the deed might opcrat« either as a deed of bargain auu sale or m a feoffment, Wortmun v. Ayles, 1 llan. 63. 86— Lunatic. The d(ted of n lunatic is not iibsolutcly void, but voidable, and can only bo avoided by the grantor or his roproNen- DEED. DEED. 148 [naoourate- lon 18 inacou- I— OonsiderS' tatives. Doe dem. Hickman v. King, 1 Han. 330. 36— Date— Sheriff's deed— Affidavit differing. The dato mentioned in a deed is not coDoIusivo, and the actual date of the execution may be shewn. Where a BherifF'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 affi- davit was sworn. Doe dem Connell v. Dickerson, 1 San. 456. 37— Sheriff's deed— Date of deed and af- fldavit- Executing at same time. The affidavit of the sheriflf under the Act 4 Wm. 4, c. 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 tho day it bears dato. Such an affidavit, purporting to have been sworn on the 2nd February, when the deed bore date un the 2nd January previous, is insuffi- cient, there being no other proof of the time of the execution of the deed. Doc dem Btistin v. Donellj/, 3 Kerr 66, 38— Fraud— Want of consideration— By whom ma^ be set up. Fraud or want ot consideration for a deed, can only bo set up by the grantor or those claiming under him. Hickman V. North British Ins. Co., 2 Han. 235. 30- Description— Rejection of part— Oonsfruotion. D. conveyed to his daughter a piece of land in Saint John, described as " a lot on the corner of St. James and Sidney streets, now in the occupation of V. M. and wife (the defendants), subject to unv charge or mortgage now against the same. At tlie time ot making this conveyance, 1). the grantor, owned parts of two lots, Nos. 1086 and 1086, adjoining each other, and purchased at different times. No. 1 USti was situated on the corner of St. Janios and Sydney streets, and was occu- pied by the grantor's daughter and her husband, 1*. M, ; and was also subject to u mortgage given by the grantor. No. 1085 was situated altogether on St. James street, and was occupied by tenants of 1),, who received the rents — his daughter hav- ing uuly the use of u wood-shod and out- house thoruon, in common with the other tenants. Held, per Ritchie, 0. J., Allen and Wetmore, J. J., That no part of the description in the deed could be rejected ; that the lot No. 1086 exactly fitted and corresponded with the description in the deed, and therefore that lot only passed by the deed. Per Weldon and Fisher, J. J., That the words of the deed, coupled with the surrounding circumstances, shewed an intention to convey both lots to the defendiint. Doe dem Donaghve V. McGarrigle, Hil. T. 1873. 40— Defendant's deed under sale by license of Probate Court— Objec- tion to proceedings in Probate Court— Biemedy by Appeal— Irre- gularity of proceedingB cannot be objected to on trial — Deed canno* be avoided on triaL The lessors of the plaintiff claimed as devisees uuder the will of H. P.; the defendant claimed under a deed trom H. P.'s executor, under a license from the Probate Court. The plaintiff contended that the license was void, because H. P. had leil sufficient personal property to pay his debts, and that the executor had improperly expended largo sums in costs in the Probate Court, in proceedings which he had no right to take ; that he had acted fraudulently towards the estate ; and that the defendant, who had been his attorney in the proceedings in the Pro- bate Court, was cognizant of the fraud of the executor, and had no right to pur- chase from him. A verdict having been found for the defendant — Held, on motion for a now trial. That though u largo amount of costs appeared to have been unnecessarily incurred in the Probate Court, and the proceedings there were irregular, it did not avoid the defendant's deed ; that the parties interested under the will should have appealed from the decree of the Probate Court, granting license to sell the real estate, and could not object to the rogulnrity of the pro- ceedings in this action. Doe dim Sulli- van V. Curreff, Trin. T. 1872. Fraudulent Conveyance — Uesulting Trust — Equitable Estate. See Ejectuicnt II, 10. II. VoiiUNTAHY Conveyance. 1— Father to son— Creditors— Taking upon ezeoxitlun. A voluntary ooiiveyanoe of land made by u father to his son, is void as against ;li .''' 144 DEED. DEED. creditors, and the land may be taken and sold by the Sheriff under an execution agaiust the father, founded upon a judg- ment obtained siuc^e the conveyance Doe dem Barlow v, Hatfield, 2 Kerr 122. Although a valuable consideration be speci- fied in the deed, it is a question for the jury whether the same is real or fictitious; and where the consideration is set up as arising out of services performed by the son as clerk to his father, evidence of the mode of living and extravagant habits of the son, and the father's complaints of the SOD s extravagance. and of payment of mouevB for him from time to time, is ad- missible to disprove the validity of the consideration. Ihid. Where the conveyance to the son was at- tacked as well on the ground of fraud as want of consideration, and evidence has been given of other conveyances miidc by the father at the same time to this and other of his children, the effect of which would be to defeat creditors: SemUc, Evidence of the circumstances under which those other deeds were given, in order to rebut the inference of fraud is relevant, but the Court refused to grant a now trial on account of the rejection of such evidence; the verdict of the jury having prciccedcd upon the single ground of the want of consideration for the con- veyance, upon tvhich the present defence rested, the cvidouce ns to the other con- veyance became immaterial. IhUl. 2 — A. made a voluntary conveyance of land to the plaintiff, his infant sou, but with- out any fraudulent intent ; fourteen years aflterwards, the defendant obtained a judgment against A., under which the land previously conveyed to the Kon was sold by the sheriff, and purcliascd by the defendant with notice of the prior con- veyance. Held, per 11. I'arker, J. and Wilniot, J. (N. Parker, iM. R. i/isHfn(i- <;ntc), That under the Ac* of Assembly 2() (ie.). :), c. 12, H. 5, the defendant was a pureh.i.ser for valuable confi'deration, in the same situation as if he had purchased from A., and fhen^t'ore that the deed from A. to his sou was fraudulent and void under the Statute 27 KHz. e. 4. Held, per N. barker, M. 11, Ist. That at the time of the judgment against A, he had no interest in the land which could be sold under the Act 2(i (Jeo. !{, c. 12, anil therefore the sheriff's deed to the I defendant was a nullity. 2nd. That a purchaser at sheriff's sale was not suc'u a purchaser as was contemplated by the Statute 27 Eliz. o. 4. Doe v. McCulley. 3 All. 194. 3 — A., without any fraudulent intent, made a voluntary conveyance of land to the plaintiff, his infant son; fourteen years afterwards the defendant obtained judg- ment against A. in an action of tort, un- der which the land previously conveyed to the plaintiff was sold by the Sheriff, and purchased by the defendant with no- tice of the prior conveyance. Held, per Carter, C. J., Parker, J. and Wilmot, J., (N. Parker, M. 11. and Ritchie, J., dU- sunfiniffi), That under the Act of Assem- bly 26 Geo. 3, c. 1 2, s. 5, the defendant was a purchaser for a valuable considera- tion, in the same situation as if he had purchased from A., and therefore the deed from A. to the plaintiff was fraudu- lent and void under the Statute 27 Eliz. e. 4. Held, per N. Parker, M. R. and Ritchie, J., Ist. That at the tinje of the judgment against A. he had a bare power of sale, and no estate in the land which could be seized under execution ; and therefore that no intercjt passed to the defendant by the Sheriff's deed. 2nd, That to invalidate the plaintiff's deed, a second conveyance by A. for valuable consideration was necessary. And per N. Parker, M. R., that the defendant was to bo considered as a subsequent creditor of, and not as a purchaser from A., and therefore that the plaintiff's deed was good against hiui. Doc v. McCiUlty, 3 .1//. 508. 4— Subsequent Creditor -Sheriff's deed. A voluntary conveyance of land (without fraud) i.s good against a Hub»et|uent cred- itor claiming under a Sheriff's deed, since the 1 Rev. Stat, o, 11!J, Dof dim Jinup v. Tnntuwdy, Mali. T. 18G3. In 1852, A. without valuable consideration conveyed land to J), in trust to hold for the benefit of A.'s wife for life, and alter her death to be div'dc^d among his chil- dren. In 1855, the lessor of the plain- tiff obtained judgment against A, under which the land convoyed to U. was levied on by the Sheriff, and purchased by the lessor of the plaintiff in 1859. The de- fendant claimed under a lease from 11. in 1857. Held, That the conveyance to D. DEED. DEED. 145 was good, and that nothing passed by the SheriflF'a deed. Doe dem Roup v. Trentownky, Mich. T. 1863. III. Trust Deed. 1 -Fraud— Execution of Deed— Inten- tion. In trover for timber seized by the de- f— 'ant, as sheriff of Saint John, under a ■a., issued against P. at the suit of S. yi : >., which timber was claimed by the uiuintiffs, as trustees under a deed of assignment made by P. to them, expressed to be for the general benefit of the credi- tors, and executed just before the signing of ^ judgment in B. & B.'s suit, and the iDtc^ of which was to prevent his pro- perty being taken under the execution upon such judgment, the case went to the jury upon the question of fraud in the asaigumout, who found for the defendant. A new trial was granted on payuiout of costs, it appearing that P. was insolvent at the time of the as<'gnmont, that an actual delivery of the timber had been made to the plaintiffs before the issuing the fi. fa-i and the evidence being insuf- ficient in the opinion of the Court to show that the deed was not intended to bo for the benefit of tho creditors as expressed on the face of it. Ilayward v. White, 2 Kerr 304. Tho question in cases of this sort is w'lother the transaction is bona fide, and really what it purports to bo — lor the benefit of creditors — or a mere pretext or cover in order to protect the property for tho benefit of tho debtor. Ibid, A condition in the r,>iist deed that eaoh trustee shall only bo answerable for hie own neglect or default, is not unusual or improper. Ibid. It is not essential to tho validity of a trust assignment for tho benefit of creditors, that the creditors should be parties to tho deed. Ibid, 2-Bona Fides— Question for jury— In- terferenoe of Court— InsufBoient evidence- Fraudulent clause. Although tho bona fiden of a trust deed, whereby the debtor s property is all as- slguod to trustees for tho benefit, ia the first instance, of certain preferred credi- tors, and nllorwurdH for the benefit of all tho creditors generally, is a question for tho jury, and has been so lofl to them by ll> the Judge, yet the Court will set aside the verdict, and grant a new trial, where the eviUence does not appear sufficient to warrant the inference of fraud which the jury have drawn. Bumham t. White, 2 Kerr 671. The question upon which the validity of the deed depends is whether the assign- ment was really intended to operate, as it purports to operate, for the benefit of creditors, 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 trustees agree to become bail for tho assignors in case they are arrested, or their security for the gaol limits, and are to bo indemnified out of the trust pro- perty, is not fraudulent; such clause, though the terms are general, will bo necessarily confined to arrests for debts existing, at the time of the assignment. Neither is a clause, whereby the respon- sibility of each trustee is confined to his own acts or defaults, unusual or improper. Ibid. 3— Appointment of Trustees in case of death or discharge— 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 cas||^ther of tho trustees should die or bd^sirous of being disohar£":d from, as become incapable to act in tho trusts, it should be the duty of the other trustees for the time being, to call a general meeting of tho creditors of the said mayor, etc., and that it should be lawful for a majority of the creditors present to nominate, substitute, and ap- point any other person to be a trustee m the place or in addition to the trustees thereby appointed, with the like powers to such new trustee to act and perform tho trusts as fully as if he had been origi- nally a trustee, Held, That the nomina- tion of S. by the creditors as a trustee in the place of M., ono of tho five trustees named in the deed, vested no estate in the land in S., but that the legal estate vested in M. by tho deed romained in him until he parted with it by a legal conveyance. Wright v. Robertson, 8 Kerr 78. —Trustee and Creditor also— Execu- tion by— Impeachment for firaud. Where parties to a deed of usslgumont, M' 1 146 DEED. DEED. in trust for the piiyment of creditors generally, were described as trustees of the second and creditors of the third part, and it appeared in evidence that when the deed was executed one of the trustees was also a creditor of the as- signor. Held, That such trustee, in the absence of evidence to the contrary, must be considered to liave executed the deed both as creditor and trustee. Held also, That such trust deed could not be ini- E cached for fraud and misrepresentation y the plaintiff, who claimed through a party whase demand was released by the deed — the same not having been repudi- ated by the parties to it. Hammond v. Barhr, 8 Kerr 634. IV. Composition Dekd. 1— Partners— Assent of-Proof of exe- cution by trustees. One of three partners assigned to trustees for payment of the partnership debts, property which had originally belonged to the firm, the deed reciting that the other partners had conveyed to him. Held, Ist. That such assignment would bo valid if assented to by the other part- ners. 2nd. 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 re- cover the property assigned. McMillan V. Ritchie, 2 All. 242. 2— Sohedule— Omission of. A composition deed recited that the grantor was indebted to certain persons in the sums set opposite their names in a schedule annexed. Held, That the omis- sion of a schedule did not vitiate the deed. Thunjar v. Travin, 2 .1//. 272. MlSCKr.LANKOUH. 1— Exchange of lands- Agreement in writing - Possession Operation— Feoffment Tenancy at will. An agreement in writing Letweeii A. and B. fur thit exchange of lands, although accompanied by possoHsidii, will not oper- ate as a conveyance by way of feoffment to pass the life estate to A., where the terms used do not clearly denote that it was to operate as a conveyance, and a deed of bargain and sale has been since given from A. to B. of the same land in which the agreement is recited as a con- tract for the conveyance of the fee. Sutherland v. Walter, 1 KcrrlAl. 2 — A writing under seal, accompanied by livery of seisin, may operate as a feofl- ment where such intent of the parties is clearly expressed. Where such an agree- ment will not operate as a conveyance, possession under it is only a tenancy at will. Ibid. 3— Pai'ol license to enter. A parol license I'rom the owner of land iu which mines are excepted, to the grantee of the mines to enter and dig them, vests no estate in the licensee, and is no breach of the implied warranty in a deed of bar- gain and sale. flfsncr v. (hiinis, 2 .1//. 595. 4— Bight of way— Bights of public. Thfe owner of land laid out and opened an alley-way leading from a street through his land, and leased the lotA on each side of the alley. After the alley had been used by the public and the tenants occu- pying the lots for more than twenty years, (i., the administrator of one of the ten- ants, assigned to the defendant, and by the description of the land in the deed, conveyed to. him the alley as a part of the property leased. Held, That this con- veyance could not affect the right of the public to use the alley, and that the de- fendant was liable tor obstructing it, though the plaintiff was *}\o tenant nf a house fronting on the alley, and also claim- ed under G. as representing another les- see of the property. Lcary v. Armntromj, 1 Han. 22. 6— Acquiescence- Estoppel. The acquiescence of the judgment debtor in a Sheriff's sale, and subsequent posscii- sion of the land by the purchaser short of twenty years, though presumptive evi- dence that all the necessary proceeding have been taken, will not give a title to the purchaser by estoppel. Dm; v. Ila- ^'■n, 3 All. 87. e—Bstate in remainder, or in presontl —Acquiescence in sale. The plaintiff claimed fitlv acres of liiud under a deed in fee from his father J. 1). in 1822, of a tract of 400 acres, of which the fifty acres were part, which deed \w subject to a condition that J. B, shouU receive and enjoy all the profits and m- oluments accruing from the land during DEED. DEED. 147 his lifc. J. B., iu order to pay a debt, about two years after the conveyance to tlie plaintiflF, and with his consent, caused the fifty acres to be sold by the Sheriff; the plaintiff bid at the sale, and afterwards ii'Tueu with the purchaser upon a division line between that and the remainder of the land. There was no proof of any judguiont or execution against J. ]J., or of any advertisement by the Sheriff under which the land was sold. Held, That if the plaintiff bad a present estate in the land at the time of the Sheriff's sale, his acquiosceuce in such sale would not divest him of his estate. Dof. v. Baxter, 3 All. Qiiirn', Whether the plaintiff took an estate ill pnsrnti under the deed, or an estate in rcnuiinder after the death of his father? If the latter, Scmhlc, That his acquies- cence in the sale and division of the land during his father's life would not operate as an estoppel t'n ^>f'i'.s. Ibid. 7— Executor's Deed— Affidavit— ■ Evidence. QuKir., Whether the affidavit inquired by the Rev. Stat. c. liJG, s. -12, to bo indor.scd ou an executor's deed, is ovideucc of any of the proceedings except the advertising and sale of the laud. Doe v. Thompson, 4 A/l. 483. S-Water-ooiirse—Bight to make. A. being the owner of lot No. 13, through which a stream ran, granted to B., his heirs and assigns,, the right to the waters of the stream and the privilege of uiaking a dam or dams, and cutting a trench there- from across lot 13 and lot O, into lot P, on which H. had a mill. li. made a dam and trench, which did not cross lot 13, and which not answering the purpose, he made a parol agreement with C, who had become the owner of lot 13, under which ho made a second dam and trench. Held, That ho had a right to do t\u» nndcr the deed, and that his parol af^rcemcnt with (!. did not affect that right, particularly as regarded the defen- dant, who shewed no title to lot 13. 3fc- KriiJnH- V. hintnii, U .1//. 28. 8— Wator Privilege— Basement. A deed granting all the right, title, inter- wt, etc. of A. in and to the water privi- lo|i,e ol' a piece of land described, convoys only an easement, and no interest in the land itself, therefore the grantee cannot by virtue oi' the deed, maintain trespass for an entry on the laud. Wntson v. Sin- clair, 3 .1//. 343. 10— Mortgagee in Fee— Estate passing —Requisites. The (.'State of a mortgagee in fee of land cannot pass by deed of bargain and sale, without enrolment or registry, nor by feoffment without livery of seisin. Doe tially to tlie attorney alone. 2nd. That DEFAMATION. DEFAMATION. 149 though the words might amonnt to a charge of embezzlement, they were not intended to impute larceny. Carvil v. McLeod, 4 All. 332. 5 — A written paper charging the plaintiff with having wrongfully taken the defen- dant's logs, sawing them up and selling the lumber, i& libellous, without any aver- ment or proof that larceny was thereby imputed. Connick v. Wilson, 2 Kerr 496. The charge in question was contained in a letter written by the defendant to McK., an intimate friend of his, who was a near relative to the plaintiff, but in no way in- terested or concerned in business with either party, with the avowed object of the defendant's availing himself of McK's influence and good offices in his contro- versies with the plaintiff, and to warn the plaintiff and his mother against the con- sequences 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 was not a privileged communication. Ibid. 6— Actionable Writing. A writing which tends to vilify and de- grade a person, is actionable, although no crime be imputed. Connick v. Wilson, 2 Kerr 617. 7— Prefatory Averments. In a declaration for a libel prefatory aver- ments are not necessary, where the charge is apparent on the face of the paper, with- out reference to extrinsic facts. The ques- tion after verdict is, whether enough ap- pears on the record to sustain the action. Ibid. 8— Professional misoonduot— Charge. A written paper charging the plaintiff (an attorney) with being governed en- tirely 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 now trial if they think the verdict is wrong, though the Judge left the ques> tion of libel to the jury, without express- ing any opinion upon the writing. The charge in question was contained in a let- ter written by the dofondnnt to McK., a friend of his, but who had no interest in the business, with tho object of obtaining MoK.'s influence in settling certain law suits in which tho defendant was engaged. Held, That this was not a privileged com- munication. Held also, That the defen- dant, intending tho letter to be confiden- tial, would not justify him in casting injurious imputations on the plaintiff's character. Andrews v. Wilson, 3 Kerr 8Q. 0— Forswearing Allegiance— Charge— "Ptoot of Slanderous Matter. Libel, charging the pl^}fltiffifint~"Eng- lishman, wij^,u£irili|^rror8Worn his alle- gianee t()'hiB country by enlisting in the American army, and afterwards deserting therefrom. Plea of justification. Held, That an Englishman who enlists in tho army of a foreign country, and takes an oath of allegiance thereto, forswears his allegiance to his native country ; and that the plaintiff's admission that he had en- listed in the American army and deserted, might as against him be taken to be true, and therefore was evidence to prove the justification. Jlill v. Bbgg, 4 All. 108. 10— Perjury- Imputation of. The defendant wrote a letter to A. rela- tive to an affidavit made by the plaintiff about the service of a writ on him as A.'s agent, containing among others, the fol- lowing statements : " If L. (the plaintiff) swears that I did not serve him with a cctpy of that writ on the Slst October last ho swears to a lie. * * ♦ I think from the experience you have of man- kind, you will admit that the outward ' appearance of L. is more like an assassin than an honest man; you must admit that he is exceedingly low bred and un- gentlemanly, and consequently cannot ap- preciate the feelings, conduct or charac- ter of a gentleman." In an action for a libel contained in this letter, the declara- tion charged tho defendant with imput- ing perjury to the plaintiff. The defen- dant justified the truth of the charge, and the iury found — contrary to the evidence of the plaintiff — that the defendant had served him with the writ on the Slst Oc- tober. Held, Ist. That if the plaintiff had made an affidavit respecting the ser- vice of the writ, the jury having found it to be untrue, the justification was proved, and the plaintiff could not recover. 2nd. If the plaintiff did not mako tho affidavit, tho letter was not libellous, because it only stated tho matter hypothetically. Lanff V. Gilbert, 4 All. 445. 11 — Action for defamation — Allegation of perjury — No jurisdiction to administer ^'1 ! ■^.i! ' 1. i 150 DEFAMATION. DEFENDING VVAIl'D TITLE. oath — PlaintifF cannot recover. See 31 c- AdiiQi V. Woiiver, 2 Kerr 176. Averment of perjury — Facts necessary. See Perjury. 12— Pleadings— Notice of defence. A notice of defence, in an action for a libel, i', Jhr. 85. 14 -Proof of innuendoes. 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 plain- tiff, and of and concerning a certain affida- vit, etc., the defendant justified, setting out the affidavit, and alleging certain statements therein contained to be wilful- ly false. The affidavit referred to two papers which were annexed, but there was no positive proof that they were an- nexed when the affidavit was sworn t(( by the plaintiff. Held, That there was suffi- cient j^ri'w a /«(•/« evidence to let in the whole of the affidavit, and that the admis- sion of part to be read without the papers annexed was not correct, and the innuen- does not sufficiently proved. Miliur v. Oilbiil, 3 Kerr 617. The verdict being for plaintiff — QuHirc Whether this was a sufficient ground lor a new trial ; the .statement alleged by the defendant to be false, and on which he founded his charge of perjury, being con- tained in that part of the affidavit which was read, and the defendant being obliged to niiike use of it to support his plea. Ilu'if. Id other count* the words were, •' lie per- jured himself in an affulavit in C.'s suit." without any inducement stating the words to have been spoken of and concerning the affidavit. Held, Th.if it was not necessary fur the plnintiff to prove any affidavit, hut that tlic 'unin was on the detcndant in support of his pleiis of justi- fication to prove that the plaintiff had sworn wilfully fal.-.e in: an afful ivit in (.'.'s suit. ////■/, 15— Proof ot words. It is not necessary in slander to prove all the words as laid in the declaration, if the words proved do not qualify those alleged. The words alleged were, "you perjured yiuirsclf in the suit between Thomas and me before Lawlor." The words proved were, ''you perjured your- self in the suit between i/oiir hrofhcr Thomas and me, etc. Held, No variance. Vj/r V. Ncwmmt, Nil. T. 1866. 16 -Mitigation of damage— Evidence. In an action of slander for charging the phiintift" with stealing, evidence of the general bad character of the plaintiff is not admissible in evidence in mitigatioa of damaces. 443. Willixtoii V. Smith, 3 Kerr n—Limitations— Other action for same offence— Evidence. To a plea of the statute of limitations in an action on the case for slander, the plaintiff' replied, under one of the excep- tions in the Statute, that another action was brought in this Court within due time for the said identical grievances, in which a verdict was given for tiie plaintiff, but the judgment afterwards arrested jj»ow( jiafcf pi'r recortlum, and that the present action was commenced within one year; the defendant rejoined mtl (id record. Held, That the replication was sufficient- ly proved by the production of a record in which the declaration contained sub- stantially the same actionable words, al- though the venue was different, and uiateriiil omissions in the innuendoes were supplied in the new action. Befinhlcij v. Dlhhlc Kerr 254. Where the same evidence would be applica- ble to both actions, the identity of the grievances is a question of fact for tlio jury, although the additional allegatioii> may make further proof necessary in thi' new action Ihid. DEFEASANCK. See Warrant of Attorney. (Jien(!ral Hulis 27. DEFENCE. See Evidence VllJ. Notice of See Pleading III. DEFKNDINCJ WARRANTED TIThK. Recovery of (.!ost«. See Warranty. DELIVERY. DELIVERY ORDER 151 DE INJURIA. De injuria may be a good replication in an action of assumpsit, and is not confined to actions of tort. In an action by the indorsee against the maker of a promissory note, the defend- ant pleaded that the note was discounted by the plaintiff on a usurious contract. Replication — de injuria, held good. Bank of British North America v. Fisher, 1 All. 600. DELAY. See Bail U, 15. " Certioniri II. '' Specific Performance. Objecting to Partition. See Partition. Enlarging rule nisi, not allowed unless de- lay satisfactorily accounted for. Ex parte Glass, 2 All. 88. DELIVERY. I-Suflttciency of— Direction to Jury. .Where A., the owner of a quantity of timber, being largely indebted to the plaintiifs, who were to be paid by means of such timber, directed his agent B. to take possession of and hold it for the plaintiffs, and B. accordingly took such possession, and put his mark upon the timber, and communicated this direc- tion of A. to the plaintiffs, who assented thereto, although it did not appear that any absolute delivery of the timber, or the survey bills thereof, had been taken by the plaintiffs, 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, and that such timber could not be aflcrwards taken in execution by the defendant against A., the original owner. Croukshank v. White, 1 Kerr 367. I— Construotion of Oontraot — Neoea- Bity of delivery. A. agreed in writing to cut 100 M. feet of logs on land of which he had the per- mit, and deliver them to the plaintiff' in the following spring, the logs to bo the property of the plaintiff; and that plain- tiff might at any time take possession of the logs and sell them, and atler deduct- ing Irom the price the amount of his supplies, and nil expenses he might be put to with them, to pay the balance, if any, to A. Held, That without a de- livery, or some act done by the plaintiff under the agreement, he had no property in the logs cut thereunder by A. Tomp- kins V. Tibbits, 1 Han: 317. — liTeoessary acts— Actual or oonstruo- tive. A., the owner of timber in possession of the Fredericton Boom Company, for the purpose of being rafted, agreed verbally to transfer it to the plaintiff, to be sold to pay certain creditors of A., and gave the plaintiff a written order upon the agent of the Boom Company, to deliver to the plaintiff all the lumber in tlie boom belonging to A. of certain marks. When the order was presented, the Sec- retary of the Company said it would be all right; but no transfer was made in the books of the Company, nor any delivery of the timber to the plaintiff, nor any dealing with it by him. Held, That no property passed to the plaintiff, and that the timber was liable to an execution subsequently issued against A. Allcny. FerfjmoH and White, 1 Han. 149. I— Bulky article. A symbolical delivery of a bulky article, such as timber, is sufficient to pass the property to the purchaser. Therefore, where A., the manufacturer of timber, which was hauled by B. on the shares, agreed to sell the plaintiff 500 tons out of a larger quantity lying on the bank of the river, and sent his agent, with the plain- tiff, to deliver this quantity to him, which tlio agent did by putting his hand on one stick in the name of the whole, B. being present and agreeing that his men should assist the plaintiff's men in rafting the timber, which they did, and the plaintiff and B., each had separate rafts. Held, That there was a sufficient delivery to the plaintiff, as against a person claiming un- der an execution against B. ; and that if B. had a lien on the timber for the haul- ing, he had lost it by parting with the possession. Fiddes v. Henderson, C.Ms. 47. Assignment — Bona fides — Execution — What constitutes delivery. See Assignment 1. Delivery when not necessary. See Trover 5. Re-delivery of ship. See Shipping Law 6. Sufficiency of delivery. See Contract 1. DELIVERY ORDER. Usage — Acceptance. See Contract 2. m ( J3 . 'i 'i • •t'( ..!. 162 DEPUTY TREASURER. DEVIATION. DEMAND OF PARTICULARS. Not a step in cause. See Affidavit III. 6. Not a waiver of necessity of filing plea be- fore appearance in summary action, nor a step in cause. See Andrews v. Hanson, 1 All. 509. DEMAND OF PAYMENT. See Bills and Notes I. 1, 17. III. 15. DEMAND OF PLEA. See Practice VII. 16. DEMAND OF POSSESSION. Effect of. See Partition. Termination of Tenancy. Will 3. See Tenant at DEMAND AND REFUSAL. See Trover. Contract 11. DEMURRER. Sec Pleading — ^Practice — Amendment. DEPARTURE IN PLEADING. Sec Pleading. DEPOSITIONS. See Evidence IX. DEPUTY. See Sheriff. A sheriff may appoint a special deputy to execute a writ without requiring security from him. The 1 Rev. Stat. c. 131, only applies to the general deputies of the sheriff appointed under the Act. Pat- tersoti V. Thij/lei/, Trin. T. 1863. DEPUTY TREASURER. Appointment— Are revenue officers- Bond— Continuance in Office— LiabiUty. Deputy Treasurers, appointed under the revenue laws in this Province arc sub- stantive revenue officers of the Crown, although appointed by the Province Trea- surer, and the appointment does not terminate with the life of the Province Treasurer from whom it has proceeded, and consequently the surety bond given to the Crown by u deputy Treasurer on this appointment continues in force, and the sureties uro linble for miscoQduot or defalcation committed by the deputy dur- ing the time of a subsequent Province Treasurer, such deputy continuing to net without any new appointment. The Queen V. Ka-r, 2 Kerr 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 purposes by the deputy under acts in force at the time of the appointment, 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 such deputy, but not to the surplus revenue received at the Customs under acts of the Imperial Parliament, which is only pro- perly payable to the Province Treasurer. IbU. The deputy who may have received such surplus revenue in his official capacity from the collector of the Customs is liable therefor to the Crown, although his sure- tics may be exempt ; and the Crown may apply the njoueys levied under ex;ent against the deputy, to any part of the demand for which the extent has issued, to which he is liable. Ibid, DERELICT LAND. Where a navigable river recedes gradually and imperceptibly, the derelict land be- longs to the riparian proprietors. Sec Burke v. Niles, 2 Ilan. 166. DESCRIPTION. See Abuttal. Crown Grant. Of parties as Executors. See Executors and Administrators V. 6. DESCENT CAST. The doctrine of descent cast enures to the benefit of the heirs only, and not to strangers. Docdcm Thompson and wife V. Purvis, Jier. 426. DEVASTAVIT. Allegation of devastavit without specific averment of value of goods wasted, is bad. See Therhckv. McGce, 1 All. 116. Averment of injury to estate. See liond (Administration Bond.) DEVIATION. Voyage. See Insurance 29, 34, 35. Contract. See Assumpsit 42. DISCHARGE. DISMISSAL OF CAUSE. 163 DEVISB^DEVISEE. Sec Will. DIES NON. Good Friday, tbough a public holiday, is not a dks non, and a taxation of costs on that day is not irregular. Gilmore v. Gilbert, 2 All. 50. DIRECTOR. See Corporation — Bank. DISABILITY. See Limitation of Actions. DISCLAIMER. Tenancy under wife— BeftuNtl to pay rent to husband. Defendant held u tenant from year to year under an agreement with plaintiff's wife, and with his consent, the rent to be paid to the wife. Held, That refusal to pay rent to the plaintiff, and a denial of his right to the property, but at the same time, claiming to hold it under the lease from the wife, did not amount to a dis- claimer. Doe dem Andrews v. Taylor, East. T. 1861. Claim of right to property. B. let land to the defendant as tenant from year to year, and died leaving an infant heir. The guardian of the child demanded the rent and gave notice to quit. The defendant refused to pay, say- ing she would have kept the land and taken care of the child, if she had been allowed, and that she had as good a right to the property as any body else. Auer the time mentioned in the notice for giv- ing up possession, the guardian again de- manded it. The defendant refused to give up the property, and said she had a better right to it than any one else. — Held, That although it might be doubt- ful whether the defendant's first refusal amounted to a disclaimer of the right of the heir ; the second refusal, being une- quivocal, was a disclaimer, and entitled the heir to recover in ejectment. Reed v. Brown, 2 All. 366. DISCHARGE. See Arrest. Bankrupt. Insolvent Debter. Bail. 1-Aotion by Executor— Release by Devisee. The Court will not order the discharge of 20 a debtor in custody at the suit of an exe- cutor, on the ground that the persons beneficially interested under the will have agreed to release the debt, and have di- rected the executor to grant a discharge. Percival v. McKenzie, 1 Kerr 498. 2— Plaintiff discharging Debtor— Beniedy on judgment. The plaintiff by proceeding against the Sheriff by attachment for not returning the execution, and afterwards consenting to discharge him on making the return and paying costs, does not lose his remedy against the defendant on the judgment, unless from the circumstances attending the proceedings against the Sheriff, his consent to discharge the defendant can be implied. Carman v. Matt, 3 Kerr 131. Refusing to discharge an Equitable Satis- faction. See Action at Law IX. 1. 3— By one of several Plaintifb— Second Arrest. Where a defendant was discharged by one of several plaintiffs, he cannot be ar- rested a second time at the instance of a co-plaintiff, and a rule nisi obtained by consent of defendant's counsel in order to file affidavit to get license of the Court to issue a second ca. sa. was discharged with costs. Executors of Andrews v. Clarke, Ber. 32. Improper discharge of Debtor by Judge's order — Issuing fi. fa. before order re- scinded. See Execution IV. 19. Insufficient Affidavit for order to hold to Bail — Application to rescind order. See Arrest 10. DISCONTINUANCE. Plaintiff has power to discontinue his suit before decree. See Gilbert v. Campbell, I Han. 471. Service of rule to discontinue without pay- ment of the costs. Party entitled to move for judgment as in case of nonsuit. See White v. Barton, 1 Han. 1. DISCOVERY OP NEW EVIDENCE. See New Trial L 8, II. 13, III. 9. DISHONOUR (NOTICE OF). See Bills and Notes IV. DISMISSAL OP CAUSE. Non-entry of Cause. See Practice V. 3. m ■>■■ W.'i\ 164 DISSBISIN. DISTRESS. DISSEISIN. See Limitation of Actions 22. Deed. Question of disseisin left to jury — Verdict for plaintiff undisturbed. See Posses- sion 1. 1— Grantor," conveying whilst disseised —No Estate pawes. If, at the time of tne execution of a deed of conveyance of land, the grantor is dis- seised, no estate passes to the grantee. Doe detn Thompson v. Barnes, Ber. 426. 2— Facts constituting disseisin must be dearly ai^parent. All the facta which constitute a disseisin should be clearly made out, and no pre- sumptions allowed in favour of disseisin. Where it is doubtful whether certain acts amount to a disseisin, or are mere acts of trespass ; or, whether the occupation was adverse or permissive, the question should be left to the jury. Ibid. 8— Original entry not wrongful— wrongAil continuance. Where the original entry of a person up- on land is not wrongful, there can be no disseisin except at the election of the owner : a wrongful continuance in pos- session will not work a disseisin. Where A. went into possession of land with the consent of the grantee, and held for a number of years, paying rent, and ac- knowledging the title of the grantee, and died in possession ; after which, his wid- ow let the defendant in possession, who refused to give up the land. Held, That the defendant's wrongful continuance in possession was not a disseisin, and did not prevent the operation of a deed from the neirs of the grantee. Doe dcm Strange v. Thompson, 1 Kerr 564. 4— Disseisin— Question for Jury. Dissesin is a question of fact for the jury to decide ; and if on a trial in ejectment a verdict is taken for the plaintiff by con- sent, subject to a motion for a nonsuit, on the ground that the party through whom the plaintiff derives title was dis- seised at the time he conveyed to the plaintiff; the Court will not decide the question, but send the case down to a jury. Doe d. Dowling v. Pearson, 3 Kerr 135. 6— Possession— Conveying Land— Sub- sequent conveyance, and prior registry. A. conveyed land to the plaintiff, who entered into possession. A. afterwards conveyed the same land to B., who regis- tered his deed before the plaintiff's deed, and subsequently conveyed to C, who conveyed to the defendant. Held, 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. Pay- son V. Good, 3 Kerr 272. 6— Continuance in possession as against registered Deed. Where a party enters under an unregis- tered deed his continuance in possession, though wrongful as against a subsequent purchaser claiming under a registered deed, does not amount to disseisin. Ibid. DISTRESS. 1—Beplevin— Distress for rent— Aver- ments— Surrender by operation of law— Questions left to JuiT. In replevin for scows, the defendants averred the taking as a distress for rent of a slip, due them from W. The plain- tiff pleaded — 1st. That the slip was a place over which the tide ebbed and flowed, and was with the knowledge and consent of the defendants Used by all persons as a public slip or landing place, in which their ships, etc., were accus- tomed to He in the ordinary course of loading and unloading their cargoes, and other purposes connected with shipping and trade, paying to the occupier certain wharfage; and that the scows at tho time of tho distress were lying in the slip for tho purposes aforesaid in the course of trade, with tho consent of tho defendants. 2nd. That before the rent became due, all tho estate and interest of W. in this slip were duly surrendered to the defendants by operation of law. Re- plication — 1st. That the scows were not lying in tho slip in the course of trade, with the knowledge, etc, 2ud. That the estate of W. in the premises was not surrendered to the defendants by opera- tion of law before the rent became due. Held, That these were proper questions for tho consideration of the jury, and they having found for the plaintiff on both issues, the Court refused to disturb the verdict, though they might not have come to the same conclusion as the jury on the first issue. Hammond v. John- ston, 3 Kerr 161. —Avowry— Agreement as to suspen- sion of remedy— Question for jury. To an avowry for rent due on the let DISTRESS. DISTRESS. 15S February, the plaintiff pleaded that be- fore the distress, on the 29th February, it was agreed between him and defend- ant, that the plaintiff should deliver to H. certain goods to be sold on account of the plaintiff, and should sign an order on H. to pay the proceeds as far as the auiount of the rent to defendant, and if the goods were not sold before the Ist May then next, that H. should be under the direction of the defendant in the sale ; in consideration of which the defendant agreed that he would not distrain for the rent in arrcar before the Ist May. Aver- ment of the delivery of the goods to, aud the acceptance of the order by H., who held the proceeds of the sale to the amount of the rent for the use of the defendant. Replication, taking issue on the agreement not to distrain before the Ist May. Held, That it was a question for the jury whether the agreement of the parties waa, that the right of distrain- ing should be suspended. Green v. Ke- hoe, 3 Kerr 494. 3— Trover— Distrainable goods ^Bail- iff—Question of felony. In trover against a landlord for goods alleged to have been taken by his bailiff under a distress for rent, some of which were not distrainable and were not in- cluded in the inventory, a verdict was found for the plaintiff, though the bailiff swore that the goods claimed were not taken. Held, That as the only question at the trial was whether such goods were taken, the landlord was liable for the act of his bailiff; and that it was not the duty of the Judge to raise the question whether the goods were feloniously taken by the bailiff. Myers v. Smith, 4 All. 203. Qimre, Whether if the taking had been felonious, it would have been a defence to the action. Ibid. If a locked trunk is distrained, the landlord is responsible for the value of its con- tents; and per Ritchie, J., the bailiff should open the trunk and take an in- ventory of the contents. Ibid. 4-Breaking outer doors — ESbct on legality of proceedings. Breaking open the outer door of a dwell- ing house to distrain for rent, does not render the distress void, and is no answer to an avowry for rent in arrear, in an action of replevin for the goods. (Gar- ter, G. J., heaitante, and Ritchie, J., dis^- 8entiente.) Myers v. Smith, 4 All. 207. Held, per Parker, J., That the unlawful act of breaking the door, came within the term " irregularity" in cap. 126, s, 7 of the Rev. Stat., for which an action on the case would be the remedy. Ibid, Per Ritchie, J., 1st. That the distress waa illegal, and that replevin was the peculiar remedy therefor. 2nd. That section 7 of the Statute applied only to cases where the distress was legally made, but the subsequent conduct of the distrainer was irregular. Ibid. 6— Fraudulent or Clandestine removal of goods. Where goods are fraudulently or clandes- tinely removed without a distress, the landlord may follow them and distrain within thirty da^s thereafter, under 1 Rev. Stat. c. 126, s. 4, although the rent may not have been due, or in arrear at the time of removal. Hoyt v. Stockton, 2 Han. 60. 6 — The mere removal of goods by the ten- ant from the demised promises, when rent is in arrear, is not conclusive evi- dence of a fraudulent intent to prevent the landlord from distraining, although the effect of such removal may be to prevent the landlord from thus recover- ing the rent. In order to justify the landlord in pursuing them, it must ap- pear 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 60 Ueo. 3, 0. 21. Martin v. Gilbert, 1 Kert 202. 7— Distrainable interest in goods— Dis- Suted right to goods— Wrong- oer. Defendant leased ft house to P., who shortly afterwards gave a bill of sale of goods to plaintiff, and received from him a lease of the goods for two years. A few days before a quarter's rent came due, P. moved the goods off the premises : the defendant followed them and dis- trained for the rent : plaintiff gave notice that he was the owner of the goods, and forbade the sale; but the defendant, believing the bill of sale to be fraudulent, sold the goods under the distress. In trespass for taking the goods, the princi- pal question was, whether the bill of sale was bona fide, but the Judge directed the jury that the tenant had ao distrain. him W'k 1«6 DISTRESS. DIVORCE. able interest in the goods, and if the bill of sale was ^^ona fide, the plaintiff must reoorer. A '^rdict . aving been found fw the plai: iff — Held, per Weldon, Fisher and Wb^more, J. J. (Ritchie, G. J., dvhitante), That the tenant had no distrninable interest in the goods. Per Ritchie, C. J., That even if he had a distrainable interest, the defendant was liable for having sold the goods us the absolute property of the tenant. Per Allen, J., That tlie tenant had a dis- trainable interest in the goods, and that as there was misdirection on this point, there ought to be a new trial, as it would materially affect the damages, whether the defendant was altogether a tirrong- door or not. Pic^eon v. Jdilli'gan, Trin. T. 1871. 8— TrespasB— Pleading distress for rent — Subsequent irregularity after distraint. It is a good plea to a declaration in tres- pass for taking goods, that the goods were distrained for rent and not being replevied within ^ve days were appraised, and after such appraisement kept and detained in satisfaction of the rent; al- though the defendant should have *>ro- oooded 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 Qoo. 3, e. 21, B. 7, to bring trespass or case, is to be understood occording to the subject matter of the grievance, and not the mere election of the party. Rogers v. £untin, 2 Kerr 230. Execution — Claim for rent — Reasonable time for Sheriff to make enquiries. See Landlord and Tenant II. 15. Damage Feasant — Replevin — Jusuoo of Peace may grant. See Justice of the Peace 11. 11. Non-payment of rent — Power of re-entry B \fficionf distroHS — Affidavit. 8oo Ejuot- ui.ntlV 2,3. Impounding Cattle. See Damage Trnsant. ■Work and Labour — Agroomont to credit on rent — Dii^tross — Payment — Aution for money had and rocoivod. See As- sumpsit Til. 40. ExcoHsivi) (liHtroBH. NuooHsary nliogatiun. See Ploudiiig 1. 53. DISTRESS WARRANT. Distress Warrant— Irregular proceed- ings. The Act 18 Vie. c. 88, relating to Sew- erage and Water Supply in St. John, authorised 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 *\j Commissionpi-g signed a warrtlnt in biank without any proof of a demand made for the rate, and the other Commissioner afterwards filled it up and issued it. Held, That it was illegal, ybwlin v. Sean, Mich. T. 1864. 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 aaeoas- ment. Held, That a distress levied on the 17th July 1862, based on an assess- ment made on the 11th July 1861, was bad, though the warrant was iseucd within the year—the distress being a "proeeeding." Ibid. DISTRIBUTION. See Heir at Law. DISTRINGAS. A distringas is not tho proper remedy against a Sheriff in office, to compel him tu sell goods levied on. Phillipt v. Dickcnmn, Trin. T. 1831. Prior to Rule of Court of Hil. T. 4th Vic, the mode of proceeding against a Shoriif when out of office, for not oringing in tho body of a defendant, was by distriii^^os, and not by attachment. Henry- v. Mm- phv, 1 Kerr 207. DIVERSION OF STREAM. See Damages I. 30. DIVORCE. 1— On ground of Cruelty— Neoossary acts of violence. To entitle a wife to a divorce a mnim et thoro on tho ground of crunlty, there must bo acta of violence or ill troaluiont by tho husband, by which her lifu nr health is endangered ; or, thoro iiuiHt be evidence of throats of Nuoh vioiuiioo nr ill trontmont, undnr oirounmtiinooH whitli lead to a ooncluHloii that thoro witN iin in- toutiuu on his part of carrying tho throutx mmt DONATIO MORTIS CAUSA. EASEMENT. 167* into execution. A slight blow, given without premeditation, and in conse- quence of very insulting remarks made to him by his wife, does not amount to cruelty. Hunter \.Hwnter, TVm. 2^.1863. 2— Dower barred by Adultery— Alter- ation of decree so as to bar Dower —TSo notice— Wife not having ap- peared in suit. In a decree of divorce a vinculo matrimo- nii, on the ground of the wife's adultery, where the conduct of the husband has been free from blame, the wife should be barred of her dower. LeemMn v. Leeman^ East. T. 1872. Where, in such a case, the decree of the Court of Divorce did not bar the dower, the Supreme Court, on appeal by the husband, under the Act 23 Vic. c. 37, ordered the decree to be altered in that respect, though no notice of the appeal had been given to the wife — she not hav- ing appeared to the suit. Ihid. DOCKETING OF JUDGMENT. It is not necessary for a person claiming pro- perty by virtue of a Sheriff's sale under execution, to prove the docketing of the judgment by the Clerk under 8 Geo. 4, c, 7. Doe dem Barlow v. Hatfield, 1 Kerr 417. DONATIO MORTIS CAUSA. A man in expectation of death, indorsed a negotiable note specially to his wife, a*^ '1 delivered it to her. Held, That this di'l not operate as a donatio mortis cauta, tbe note not being transferable by delivery only. Weldon v. Weldon, 2 All. 698. A,, shortly before his death, gave his wife a box containing certain things under oiroumstancos which would amount to a donatio mortis causa of the box and con- tents. In the box was a deposit receipt for £300, which A. had in the bank. Hold, That this record being only evi- dence of a debt, and not a document that could have been transferred so as to make the bank liable to a third party, this mo- ney did not pass to the wife as tt donatio mortis causa. (See Aniss v. Witt, 33 Uoivy. 619, that money duo on a banker's dopohit note posses as a donatio mortis of the note.) Kr, 1803. rittmi by the uolivcry » parte Gerow, East. T, DOWER. 1 —View— Assignment— Particulars. In an action of ejectment for dower, un- der the Act 21 Vic. o. 35, there must be a view of the premises, and if the plain- tiff recovers, the dower must be assigned by the jury in giving their verdict. The declaration may be substantially the same in form as in an ordinary action of eject- ment, and the defendant if necessary may obtain particulars of the plaintiff's claim. Doe dem Johnston v. Jardine, IVin. T. 1872. 2— Equity of redemption in Land. A widow cannot maintain an action at law for dower in land in which her hus- band had only an equity of redemption 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 c dower, or though the mortgage may have been paid, if it is not discharged on the records. Doe dem McDonald v. Eitabrooks, 4 All. 455. 9— Husband tenant in common. If the husband was seised as teaant in common, the widow can only be endowed in common under the Act 21 Vic. o. 25, and not by metes and bounds. Do dem Johnston V. Jardine, East. T. 1873. 4— View— Proceedings. Where an order for view is made in an action for dower under the Act 21 Vic. cap. 25, the proceedings should bo the same substantially as under the writ of view under the Act 4 Ann c. 16. Ibid. 6— Arrearfi of Dower. Semble, That arrears of dower cannot be recovered unless the husband died seiijod of the land. Ibid. Objection to trial of Action for Dower by common jury. See Judgment as in case of Nonsuit III. 13. EASEMENT. Soi) Deed. Crown Grant III. 1. 1 — Privileges and Appurtenances — Words in a Deed not creating a right of way. See Roffers v. Peck, Bvr. 318. 2— Words in Deed— Water prixdlege— Interest. A dend granting all the right, title, inter- est, etc., of A., in and to " the water privilege of a pioeo of liiud dosoribod," oouveyu only an easumont, and no iulorutit 158 EASEMENT. EJECTMENT. in tho land itself; therefore, the grantee cannot, by virtue of the deed, maintain trespass for an entry on the land. WUson V. Sinclair, 3 All. 343. 8— Ezolusive enjoyment— Aoquiaition of right— Oessation of use— Bffbot —Question for Jury. An casement to appropriate the water of a stream in a particular way (as by a dam to turn the water in a particular direction), may be acquired by an exclu- sive enjoyment for twenty years ; and where such a right is once created, it is perpetual, and passes with the inherit- ance. McLean v. Davis, Ilil. T. 1865. 4 — A short cessation of the use of the ease- ment, occasioned by the burning of a mill with which it was ctmnected, will not affect the right, if there Wiis an intention to rebuild the mill carried iuto effect within a reasonable time. Ibid. 5 — The removal, by a tenant, of a mill-dam by which an casement has been acquired, without the asscut of the ownor of tho inheritance, will not destroy the right; and after the expiration of the tenancy, tho owner of the freehold may restore the dam. Ibid. 6 — In a case relating to the right to an easement of this description, it is a ques- tion for tho jury to determine — Ist. Whether a right has been acquired by a diversion of the water for twenty years; awd 2nd. If so acquired, whether it has been relinquished or abandoned. Ibid, 7-MiU.pond-SoiL A deed of a piece of land, " together with the mill privilege, saw-mill, and erections belonging to the same ; and also the pond or flowage above the said mill," conveys no right to tho soil of the mill-pond, but only an easement to dam the water and overflow the land for the purposes ol' tho mill below. IleibcMu v, CuHiiinaham, Ilil. T. 1873. 8— Demise- Oonstruotion of— Wharf. Plaintiff leased to defondant part of a wharf forty foot wide by one hundred feet in length. " togetlwfr with a right of way or passage for foot passengers, horses, cart<4, etc., in, through, over, and upcm the wharf to tho southward, westward and northward" of the part leased (the eastern part fronting on a Jiighway), Ihihnuhnn, the deniisod premises, '• ti. gether with iIki privilege and (^njoyineii.. of the said wliarl' and the said right of I way or passage hereby demised," etc. The plaintiff covenanted to keep tho 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 in- gross, egress, etc., and as a highway," etc. Held, That the demise only ex- tended 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 limding goods upon it. Lawton v' lirrJ ist. T. 1373. Conveyance of Hll with privileges and appurtenances — Soil of piling place not passing. See Deed I. 21. ECCLESIASTICAL CORlOr ^TION. See Church of England. EJECTMENT. I. Lkssor'b Txtlb 1 II. Between Pahti i Persons. RiaiiT OP Action ani» Depenck. III. PBACTicAii Procedure. I"V , Setting Aside, or Staying irRo- CEEDINOS. V. Miscellaneous. VI. Action for Mesne Profits. VII. Consent IIuli, I. Lessor's Title. l~Bargain and Sale— Judgment Lion —Relation of exeoution to prior Judgment. Ejectment was sustained by a lessor of the pliiintiff under a deed of bargain and sale from A. against tho 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 tho Court against A,, which latter judgment was prior to tho deed of bargain and sale to tho lessor nf the plaintiff, the Court holding that tho execution could not have relatiim buck tn (he first judgment. Due dcm I'enhiuhj v. M. Knight, lirr. 370. 2— LoBsee, Rdtato for years Neoosslty of actual entry. 'I'liii ('Htatr (li'a K'Hsee i'or years is not cuiii piele without uetuiil entry; thorol'orc, EJECTMENT. EJECTMENT. 160 where a loasor in ejectment made title under a lease from D., without shewing any entry under the lease) and it appeared also that the defendant had been several years in possession. Held, That the les- sor's title was incomplete. Doe v. Munro, 1 All. 92. S—Bemainderman. The tenant of a devisee for life may, after the death of such devisee be ousted by . the remainderman without any notice to quit. Dve dem, fHelda v. McKay, 2 Kerr 436. 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 wilderness state until 1811, when E. H. entered upon it, cleared and cultivated seven or eight acres, and resided there until her death in 1818. By her will in August 1813, she devised fifty acres of the lot to one S. for her life, with the re- mainder 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 th lot under S., and paid rent to her, though the particulars of the di- niisc did not appear. They now set up an adverse possession against G. F. — Held, That they, occupying as tcnante of S., could not sot up title by adverse posBCHsion against 1. F., the reniainder- nmn. Ibid. Held also. That under the circumstances, it was fairly to bo presumed they held the whole fifty ocres under S., and r »t merely the part actually improved by E. H., and that at till' death of S., the iovisec for life, G. F. or his assignees wcro entitled to recover possession of the fifty acres. Ibid. Miiintuining Kjei^tniont without demand of possession, See Will 8. Hoir — Disehiiuier. See Disclaimer 4-I(eB8or'B Title— Rebuttal by adverse possession proved and unoontra- dioted. Wlioro the evidence of the plaintiff's right to recover in ejeetni jnt, arising from doc- umentary title, and conxtructivo posses- sion in the person who convoyed to the lessor of plaintiff, was rebutted by actual adverse occupation for twenty years past in i\w defendant, iinil those from whmn he claimed, which whb uiieontradictod, the Court set aside the verdict given for the plaintiff, and ordered a new trial. Doe d. McMackin v. Devine, 1 Kerr 411. Title by Estoppel. See Acquiescence. 5— Grantee of Crown— Unocoupied land— Possession. The grantee of the Crown, according to the ordinary mode of granting the wild lands in this Province, being deemed prima facie in possession of the land granted where there is no adverse occu- pant, 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 ita natural .itate and uneu- olosed. See Doe dem Des Barret v. White, 1 Kerr 535. 6— Grantee— Adverse possession -^ Dis- seisin— Descent oast— Demise of wife's property before marriage. When, at the time of the oieoution of a deed of conveyance from A. to B. of certain Ijinds, the grantor is disseised thereof, no estate passes to B. All the facts which constitute a disseisin must be clearly made out, and no presumptions should be allowed in favor of a disseisin. The doctrine of descent oast enures only to the benefit of the heirs, and not to strangers. A demise in name of hus- band and wife of the wife's property, laid previous t« the marriage, is not good. Doc dem Thomson and wife v. Barnes, Ber. 420, 7— Prior possession. Prior , possession is a sufficient title in ejectment against a mere wrong-door. Don dim Dowllni) v. Pearson, H Kerr 135. 8 — The plaintiff in ejectment claimed under a conveyance from A, in 1847 A. had then been 'n possession of the land about si^ years, and continued to occupy till 1850, when ho left the co.mtry and the defendant took possession. Held, Ritchie, J , ilkseutientc. That in the absence of any title in either party, the prior posses- sion of the plaintiff (('i.,iniing through A.) was suffiuiont to enable him to recover against Uio defendant. Doc v. Thomson, 4 All 461. Per Hitohu!, J., That loss than twenty years' powossion in the phiintiff, was not I'videiico of title in ojoctmont, unless tho defendant (Altered under tho plaintifl', or the plaintiff was wroiigf\illy doprivod of poHHi'i'sioM by actual ouster, or by forco or fraud, /'»!'/. >rHi 160 EJECTMENT. EJECTMENT. 9— Vacant Crown Land. Quare, Whether a more priority of posses- Bion of vacaot Crown Land is safficiont title in ejectment against a wrong-doer in any case ? It is not certainly against a person who has applied to the Crown for a grant of the land, and ohtaincd an order for survey thereof. Doe dem Mor- rison v. AtcAlpin, 2 Kerr 467. 10— Title out of Leosor— Limitations- Payment of rent. It is a sufficient defence in an action of ejectment, to prove title out of the lessor of the plaintiff. Doe ex dem McOowan V. McColgan, 1 Han. 633. Whore the lessor of the plaintiff derives his title from liis ancestor, acquired by tho Statutti of Limitations, it is sufficient to prove, for the defence, that such ancestor paid rout fur the loctu in quo, while the Statute was running. Ibtd. Re-entry — Lease — Forfeiture. See Infra IV. 3. 11— Title in third person— Mortgage. Defcndau!/ in ejectment may show that nt the time of the deuiiso laid, the legal title was vested in a third person, to whom the Io8S«)r of the plaintiff had mort- gaged the property, though the detendant does not claim under the mortgugou. (But SCO 2 Wm. 4, c. 23, a. 4.) Doe (km Munro v. IIan.vm, Mich. T. 1831. Possession of widow — Continuance ai'>«r death of hu.sband — Iloldin,; for whom considered — Making out title by adding possession. 8ee Possession 4. II. BkTWKBN PaBTICULAH PKR80N8. 1— Tenant at will—AdTorse possession —Statute of Limitations. Whore 13. being put into possession of prumisuH by A. under an agreement for purchiiso, continued to hold such posses- sion for upwards of twenty-one years, and reueivo tho rents, pnintA, etc., tho Court considering B. strictly a temmt at will, held in an action of ejectment brought by the heirs of A. agiilnst B.'s griintee, that tlie pliiiutiff 'h right of action was barred by the 7th section of tho Act of Assembly of (} Wm. 4, c. 43. Doe d. Punti/, el (d v. /V/rrd, Her. 350. 2- Merger of tenancy at will— Posses- sion under agreement for sale. All ajrnicMiL'nt wtl^ inmli ly A. and U. by niiiiiial bondN, fill' tilt! salt' and eonvuyuucu of lands by A. to B. on payment of a cer- tain sum on or before the Ist of May 1829, together with lawful interest /or the Jirst three years, and eight per cent, for the Itist two years, as a consideration for the use of the land. Held, That B., who was let into possession under this agree- ment, was not tenant at will to A., but tenant for years until the 1st May 1829. Before that day A. died, and by his will devised tho land to his widow for her life, and after her death to his children (the lessors of the plaintiff.) He appointed his widow his executrix, and tho defen- dant, who was B.'s assignee, paid tho purohase money of tho land to the widow, and received from her the deed of bar- gain and sale. Held, That the defendant oould not, after this, sot up a tenancy at will under tho agreement, such tenancy if any having mergod in the life estate oonyeyed by tho widow's deed ; and that after the death of the widow an ejoctr ment might be maintained by the children without any notici to quit, or demand of possession. Doe dem Vliff et at \. Von- naway, Ber. 382. 3 — A person taking possession of land under an agreement to purchase, which spcci- ued no time for the continuance of the possession in the event of the purchase not being completed, becomes a tenant at will; and such tenancy must be tcruii- uated by some act of the parties, before he can be ejected on non-completion of the purchase. Doe v. Denny, 3 Alt. 50. Tho Act G Wm, 4, c. 43, s. 7, does not ap- ply to such a case ; but only to questions arising under the Statute of LiuiitatiuDs. Jhid, 4— Landlord and Tenant — Expiration of lease —Notice to quit — Hold- ing over. Whore a toiiunt, under a parol leuNO fur seven years, holds over the term (no rent having been paid), no notice to quit i< nocoHsary beforo ejt!(!tnient brought Ly the landlord. Due v. Parkinson v. Ihw<-'- man, Ber. 434. 6- Landlord - Defence by - Necessity of shewing title ugainst. In ejectment, where the landlord dufuii'l^ the action, the plaintiff must shew a title against him, otherwise he cannot rcooYci. As where A. def'eiuiod as landlord of li. who he admitted by the oonsont rule l> be in possession, and the plaintiff uiil} proved conveyances from C. to 13., an I EJECTMENT. EJECTMENT. 161 from the Sheriff to the lessor of the plain- tiff under an execution, of B.'b right and title to the property, without showing any actual possession in 6. or C. Held iDBuffioient. Doe dem Hatheway v. natch, 3 Kerr 687. e— Mortnagors — Defence by Tenant unaer title of Mortgagee. In ejectment by nioitgagors against a tenant, who had received the possession from them, under a lease made after the giving of the mortgage, but while the mort'^agors were in possession ; the ten- ant may defend under the mortga- gee's title by shewing that he sub- sequently becam'^ tenant of the pre- mises to the mortgagees, and had paid rent to them. Doe dem Dijffin v. Swip- son, 3 Kerr 194. 7— Heir and Tenant by courtesy. A married woman, whose husband had left the country, let the defendant into possession of her land, and died ; her daughter, claiming as heir, brought eject- meut, and there was conflicting evidence of the death of the husband, upon which the jury found in favor of the life. Held, That as the husband had the pos- sessory right aa tenant by the courtesy, the verdict was properly given for the defendant. Hold also, That though the defendant having received possession from the mother, might be estopped from dis- puting the right of the le8.^or 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. BurrheUv. liroion, 2 All. 168. The heir's right of entry is suRponded until the death of the tenant by the courtesy. Ibid Lessee .ind Lessor — Defence by Lessor — Surrender of Icilso — Facts for jury. See iSurrendor. S-Persons beyond seas— Bight of action. The right given by 1 Rev. Stat. c. 139, 8. 16, to persons beyond seas, U) bring an action for tho recovery of land within ton years aiier the disability ceases, docs not suspend the right of action during tho person's absence. Doc dem Fitxyer- (ddy. Maxwell, IIU. T. 1865. 0-No documentary or posseMory title. Dufeodant let into possoHsiou under writ- tim ngreement, necesHary to produce it, or give secondary ovidonce allor notice to produce. See Kvidenco VII, 23. 21 10— Fraudulent conveyance— Besult- ing trust— Equitable estate. R. N., tho plaintiff's father, agreed to purchase laud from F., and paid for it; but being somewhat in debt, he requested F. to makn the conveyance to the plain- tiff — 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 R. N . and execution issued, under which tho land was seized by the Sheriff and sold to the defendant. In ejectment by the son — Held (Fisher, J., disjent> ing). That though the purchase by R. N., in the name of his son, might create a resulting trust in favor of the former, ho would only have an equitable esiite, and the defendant, claiming his right under the Sheriff's deed, had no defence against the legal title of tho plaintiff under the deed from F. Nixonx. Ro- mcrille, Mich. y. 1871. III. Practical Procedure. 1— Servioe of Declaration. A service of declaration in ejectment on the tenant's sou on the premises, is not sufficient without proof that it came to tho tenant's knowledge. Doc dem Tme V. Fen, 1 Kerr 458. 2 — Service of a declaration by reading it in a loud voice, and passing tho copy and notice under the door of the dwellicg- house, the tenant being in the house at the time and refusing to open the door, or listen to the explanation of the service. Held sufficient. Doc dem Beatty v. Roe, 2 Kerr 169. 3— Landlord — Affidavit — Name of Tenant. In ejectment brought by tho landlord for non-payment of rent under Act 50 Geo. 3, c. "iX, where half a year's rent is in urrear, and no sufficient distress found on tho promises, the affidavit of service of declaration by affixing a copy to the door of tho house, tho possession being vacant, should state the nuuie of the truant from whom the lent is duo. Dee dem While v. Roe, 2 Kerr 360. 4 — Service of a deolor'.tfou in ejectment on a daughter of tho tenant, on tho promises, is not Hufficiont to obtain a rule for judg- ment against tlie casual ejootor. Doe d. Dishrow v. Fvh, Ber, 234. 1«B BJEC5TMENT. EJECTMENT. 5-^SerTice of a declaration in ejectment on the wife of the tenant, at his dwelling- house, is sufficient. Doc dem Peabody V. Boe, Ber. 347. 6 — ^Where the tenant could not he found, and no person was in actual possession, and a copy of the declaration had been affixed on the most conspicuous part of the premises, a rule nisi for judgment was granted, to be served in the same mann'^r as the declaration. Doe dem Tredwelly. Roe, 1 AU. 686. 7— Bule msi— Statement— Name of tenant— Number of days for ap- pearance. The rule ni$i 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 Taylor V. Roe, 1 All. 1. Seivi'*c of — Where tenant could not be found, coe Supra 1. 8— Non-entry of rule— Bzouae. Where the rule for judgment against the casual ejector was not entered at the term in which the notice directed the tenant to appear, in consequence of a proposition made by him to settle the claim, und which ho afterwards refused to carry out, a rule for judgment was allowed to be entered at the next term. Doe dem N. B. and N. Scotia Land Co. V. Roe, East. T. 1866. 8— Claim as landlord— Allowing to de- fend as such. If the relation of landlord and tenant does not clearly exist, there should be a summons or rule niisi before a person claiming as landlord can bo allowed to defend an action of ejectment in that character. Den d. Fault v. Fen, 1 All. 686 and 633. lO—Judgment against casual ejector— Acknowledgment of service of declaration. An acknowledgment by the tenant before the day of appearance, that ho had re- ceived the copy of a declaration in e/ectmcnt, is sufficient to entitle the plaintiiT tn judgment ngaiiiflt the casual ejector. Doc dem Kirk v. Roe, 2 All. 463. 11— Objections as to proof of posses- sion— Must be taken at tri^l. If the dofuudant in ojootment wishes to limit the plaintiff's 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. McGhyn, 4 All. 189. IV. Setting aside or btatinq Proceedings. 1— Judgment against casual ejector— Non-Fulfliment of agreement— Bight to enter judgment. Where by the terms of an agreement entered into by the parties pending an action of ejectment, that the tenant should give up possession of ten acres of the land in question, 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 1st May ensuing ; and on failure to perform the stipulations of the agree- ment on the part of the tenant, the Ic^or 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 surveyor, went about Ist April following and made the selection 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 promises 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 1st 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 dem Svovil V. Roc, 3 Kerr 511. 2— Vacant premises— Be-entry— Dis- tress. Affidavit should state that the party had searched for property on the demised premises on a particular day, and that none could bo found — the buld statement that no sufficient distrusH was to bo tound, not sufficient. Doc dem (filbert v. Hot, 2 Han. 6. EJECTMENT. EJECTMENT. 16S 3— Be-entry for non-payment of rent— Insumoienoy or diistreas to satisfy rent not shewn— Lease— Renewal -Necessity of realising portion of distress if any found, before bringing ojeotment on clause of forfnture. A lease was made by A. to B., for four- teen years from Ist May 1849, with a covenant by A. to pay for improvements, or renew the lease at the end of the term. A. couveyed the reversion to the plaintiff in October 1869, at which time it was alleged that 91,200 arrears of rent were duo from B., who had left the country. In ejectment, for a forfeiture for non- payment of the rent, the plaintiff claimed the arrears, and also $72 for a half year's rent, due since he became the owner of the reversion. The affidavit of the bailiff stated that when he borved tHe declara- tion 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 exceed $50 in his estimation. 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 distress on the premises to satisfy the half year's rent accruing duo 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 posses- slon held under B., there was nothing to 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 Batiiinst his petition ; though the quantum of Jamages might be doubtful. Ibid. 6— Costs— Attachment. Whore the Judge who tries an election petition, makes an order for costs, under the 62nd section of the Act 32 Vic. c. 32, an attachment for non-payment of the costs should bo granted by the Judge and not by the Court. Kay v. Haning- ton, East. T, 1873, I, ' ' tA I 166 ENLARGING RULE. EQUITY. 6— Notice— Fublioation. Publication of notice in a newspaper " for three consecutive days," under the 69th section of the Act 32 Vic. c. 32, cannot bo made in a weekly newspaper. Hebert V. Hanington, East. T. 1873. Costs of publishing and posting. See Coeta 34 a. Allegations in petition — Materiality of wit- nesses to prove. See Costs 34 a. ENTRY OF CAUSE. See Practice III. (Entry Docket.) Insufflcient excuse for non-entry. The Court refused, after trial and verdict for the plaintiffs, to allow a cause to be entered, though the dofendaut's attorney consented; the only excuse alleged for not entering it at the return of the writ being that the plaintiff's attorney expect- ed it would have been settled. Doherty v. McGrath, nil. T. 1866. ENTRY BY A CLERK IN COURSE OF DUTY. Sec Evidence III. 16. ENGLISH STATUTES. See British Statutes. ENLARGING RULE. 1— 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 accounted for. Ex parte Glass, 2 All. 88. 2 — A rule nisi for quashing a conviction was grunted in Eaatcr Term, returnable at the next term, the rule was not served upon the Prosecutor of Justice until the day preceding Trinity Term, the Court refused to enlarge the rule, no satisfac- tory reason being shewn for the delay. Reyina v. IFarshman, Trin. T. 1868. 3— iKnoranoe of Practice. Where a rule for ivrtiorari was made in Trinity Term, but the writ was not taken out, the Court refused in Michaelmas Term to enlarge the rule on an affidavit of the attorney that ho was not aware that by the practice he ought to have taken out the writ before Michueli...i8 Term. Rnjlna v. Ilnr»hman, Mich. T. EQUITABLE MORTGAGE. Debenture Bond— Bailway Company- Undertaking- Beisure of Luid tinder fl. fa. The defendants, being indebted to the plaintiff in the sum of £1000, executed a bond to him, declaring that for the pur- pose of securing the debt and interest they granted to him (inter alia) the un. dertaking of the Company, and all mo- neys to arise from the sale of their lands, with a condition that on failure of pay- ment on a certain day, the plaintiff might, upon giving three months notice, enter upon the receipt of the proceeds of the sales, tolls, etc., and upon the absolute possession of the railway, etc., and reim- burse himself the amount due, provided that " nothing therein should be held to limit the powers of sale or appropriation by the Company, of any of their lands, nor constitute a charge upon the same." Held, That this did not constitute an equitable mortgage on the lands of the Company, and that judgment creditors of the Company, without notice of the bond, could not be restrained by injunction from selling the lands under execution. Wickham v. The N". Br.'k and Canada Railway & Land Company. [S. C. Law R. 1 P. C. 64.] Mich. T. 1864. Queere, If an equitable mortgage was com- plete, how it would be affected by a sub- sequent judgment and execution. Ib! A^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I \^W1 ■so 2.5 Ui 1^ 12.2 I; ■ 4 11.25 III 1.4 6" I 2.0 m 1.6 Photographic Sciences Corporation 33 WIST MAIN STRUT WnSTn.N.V. I4SM (71*)I7^-4S03 4s "^ V fi^ f;^ A 168 EQUITY. EQUITY. ties, oertifioates of bank stock, books, eto. bc!:3giDg to A.'s estate, and she after- wards reoeived the dividends of the bank stock, though the stock was not transfer- red to her in the books of the bank. In 1867 the bank suspended, and proceed- ings having been taken to wind up its ofihirs, under the Act 27 Vic. c. 44, G. (as the holder of the shares) was placed on the list of oontributories and compelled to pay 97000 as an assessment on the shares. The widow and legatees having reftued to pay this sum to G. and to in- demnify him against anv future calls on the shares, a bill was filed to compel them to do so, and to obtain a decree that the agreement was valid and binding. On th? heann", the defendants claimed to r>I y t.at the agrenment was fraudulent; tLct *' V were compelled to enter into it in OTur . > ^-.ot possession of the assets of the C8^.(td, and because they could not get any Acr . untr of the administration. Held, 1st. '.'>. at li.'s accounts as executor were not iri ii4hue, and that if the defendants wished t'j impeach the agreement, they should have filed a cross bill. 2nd. That the widow of A. had the means of know- ing her liability as a stockholder in the Bunk, and was bound by the knowledge of her agent. 3rd. That G. only held the Bank stock as a trustee for the widow, and was entitled to be indemnified for any calls made upon him ns the holder of the «tock, under the Act 27 Vic. o. 44. Decree made against the defendants ac- cording to the prayer of the bill. Bots- ford V. Gratw, Eaat. T. 1873. a— Bemedy at Law— Suit for ipedflo performance not maintainable. The defendants, D. F. & 8., entered into partnership in 1866 for Durohafling and selling shingles and clapboards. D. re- sided in Fredericton, and the other defendants in Boston. D. was to pur- chase the shingles, etc., and ship them to F. and S., who were to control the sales, and the proceeds were to aome to them : the capital to be furnished equally by the parties, and the profit and loss to be equally divided. D. being unable to flirnish his share of tho capital, applied to tho plaintiff in February 1866, who •greed to make advances to him on con- dition that he should ship shingles, etc., to tho plaintifl^ to secure him, D. agreeing (with tho assent of F. and S.) to ship every aitoruato cargo to him for that purpose. Tho plaintiff claimed that the money was advanced to all the defend- ants; but F. and S. denied this, alleging that it was made to D. alone, and that they did not require it, having sufficient means to furnish their share of the oapi- tal ; 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 sufficient to cover that sum. Held, That even if the amount was not limited, the agreement gave the plaintiff no lien on the partnership lum- ber ; that if there was a breach of the agreement, tlic plaintiff had a remedy therefor at law, and therefore he could not maintain a suit for the specific per- formance of it. Fogg v. Dowling, Trin, T. 1870. 2 a— Bamedy in Equity for Bpeoiflc performance— Adoption of agree- ment—Relation of trustee and cestui que trust created. M. being indebted to the plaintiff for logs Bind lumber, and. to others in vatious amounts, and being also largely indeWd to the defet^dants, gave them a warrant of attorney to confess judgnient, subject to a defeasance, stating that it was given to secure the defendants in the amount due them from M., and in all sums which they might pay under a oertoin agree- ment then made between them. By this agreement the defendants undertook and agreed to par (infer alia), by three instalmente, all bulanoes due by M. on logs and timber delivered to him since a certain day, the amounts to be fixed b; orders drawn by him on the defendants : the defendants to have power to issuo execution on the judgment forthwith, and soli uU the real and personal estate of M., and after paying all expenses, to retein the proceeds till the purposes of the agreement were satisfied, unci if anv surplus remained, to pay the same to ^l. The plaintiff and M. liaving settled tho amount duo plaintiff for lumber, M. drew an order on the defendants for tho amount, which order was presented to the defendants, and the first instolment paid to the plaintiff, and indorsed on the order. When the second instalment came due, the defendants reflised to pay, because M.'s property, sold under tho judgment, fell short of what he had represented, and was insufficient to pny the several amounts mentioned in tho agreement. Held, Ist. That tho plaintiff EQUITY. having assented to, and acted upon the agreement between the defendants and M., the relation of trustee and eesiui que (nut was thereby created. 2nd. That the defendants were absolutely bound by the agreement to pay the pIainti£F the amount stated in the order; and 3rd. That the plaintiffs had a remedy in equi- ty for a specifio performance of the agreement Piehard v. Tfie OentraU Bank, HU. T. 1363. 8— Deposit of Folioy of Insuranoe— Mortgage right— Equitable daim perfected. Defendant mortgaged a house to A. to secure a debt, ana covenanted to insure a certain sum on the house, and, if re- quired, to assien the policy to A. De- fendant insured the house, but afterwards becoming indebted to B., and being pressed ror payment, deposited the polio)i of insurance with B. as collateral security. B. had no notice of A.'s mortgage. On the 6th March, a few days after the de- posit of the policy with B., the house was burnt. On the following day A. gave notice to the Insurance Oompany of his mortgage, and claimed the amount of the insurance: he also applied to the defendant for an order to tne Insurance Company to pay the amount, but the defendant declined to give it, stating that he had already appropriated the money to the payment of his debt to B. On the 21st March, B. presented the de- fendant's order on the Insurance Oom- pany for the amount of the insuranoe, 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 mo- ney, and had priority over B., notwith- Btandinir the aoposit of the policy with him. The Queen Ituuranoe Oo, v. MaC' pherton, EatL T. 1868. 4— Property taken lutdeot to oovenant —Knowledge of party— Bquitable rights — Speoiflo performanoe — Beatrainlng by iignnotion until ftilfllment of oovenanta— Bemedy at law not ousting Jurisdiction of equity— Agreement for oompen- ■ation— Statutory remedy fbr as- sessment not applicable. If a party takes propertv, with knowledge that the person through whom he claims has covenanted to use it in a particular way, he takes it subject to tne equity created by that party; and a spociflo 22 Eg V ITT. IM performance c the agreement will be enfoi ^d against him.. £ya» v. Lock- hart, x'tut. T> 1872. The St. John Water GoiAjiKny, aadei^ 'the antbority of their Act of Incotpc^ation, 2 YFm. 4, 0. 26) covenanted witii the owner of land, which tbev required to overflow, that they would build a bridge over the overflowiage to eUkM^ him and his assigns, eto., to peas ftoin' One Eart of his farm to the other, and iwan^ subject to the out- standing liabilities, were bound by the oovenant to keep the bridge in repair. 2nd. That the reservation in the Act of rights and remedies a^nst the Company, only applied to actions pending, and rights of action aoorued before the pass- ing of the Act; and not to a breaon of contract, or wrong done, by the Commis- sioners, though such contract had been entered into by the Companv. 3rd. That the plaintiff had a remedy in equity against the Commissioners for a specific performance of the oovenant, ana that they should be restrained bv injunction firom overflowing his land until the bridge was put in a proper state of repair 4tb. That though the plaintiff might have a remedy at law on the covenant, that did not oust the jurisdiction of equity. 6th. That the mode of compensation for the overflowatfe having been asreed upon between tne Company and the owner of Il# mmtx. 8QUITT. . mvA. by « Jury 414 not apply- Rjf^m v. Lockhart, JEoU. TA9t%. fr-rOoatimot irtth 8oato^ aupipoMd to b« inqonKnmted^Anonal Uabll- ,, inr — Sitiinate of work not an " ' •mrd— Not i^fibotod byoonMd- <>t ottfitlon of mattoni notre0BKi«d— ^>v i < OonaaRont Bomadio*— Ottfootion tO! JnriwlUjttoq^TinM of taUng. Plaintiff an^nd into a eontraot with the York Goonlnr A^oidtHnl Society to erect » bniUing within a spemfied time, lbs a certain earn, and by the terms of the contract, the Sooiet;^, if disMtiaied with the progreea of tha work, was auth- orised to take possession of and complete tha bnildine, and charge the eipense to the pUdntiff. The contract was nnder a teal represented to be the corporate aeal of the Sodety, and it was declared that the members of the oommittee of the So- ciety (who managed the business^ shonld not be personalW or indiridually liable to the plaintiff. The building was not com- pleted within the time agreed, and the Dooietv took possessioa, and proceeded witJb the work. It was aflerwanls agreed that the nnflnish«d work, to complete the building according to contract, shonld be estimated by two mechanics, one chosen ',> by each party, and that from the sum deteimbra by them u necessary for that purpose, the Society should deduct a eertain sum, and charge the balance to the plaintiff. Thia was done, and after making aU dadnstions, a balance was due plaintiff on the contract. The Society never was in fact incorporated, and the plaintiff finled to recover the balance in an action at law against the Society. Held> 1st That there being no Oompany Uablo on the eontractv the members of the Oommittea of the Society, who had taken the benefit of the plaintiff's work, wero personally Uable. 2nd. That the ) dauBO m the contract against their per- « aooal liability was only intended to apply in oase there was a Oorporation liabla on > (he eontmot, and there not being anv < Moh liabilitv it was repugnant and vnid. 8rd. That the estimate of the unfinished work was not an award in the higal sense < ' the wofd, bnt a mere valuation ot ap- Cakamsnit, aad thaieibre was not invalid ooMeqnoaee of the aibitratois having taken into coasidaration aMttors not re- flurrod to them— it being substantjaUy a deeiaion of what was reftrred. 4th. That thiowh the phnntiff might have had a remedy at law against the defend- ants, it did not folk>w Uiat there waa not a conourreqt remedy in. equity; but at all events, the objection was too late at th« hearing, and shonld have l>oen taken by plea on demurrer. Hodge v. Reid, Miek. T. 1872. •-Judgmont Onditor— Bemedy at inw befofo a]ppUoation in •qvity. A judgment creditor cannot file a bill in equi^ to enforce his judgment agaioat the kimd and 0. his sons, being joint owners of two lots of land, mortgaged them to the pUintiff. A« after- wards oonveyed to the pkintiff land of which he was sole owner, in payment of half the mortgage deht| and then released all his interest in the mortgaciad lands to B. and 0., who oeonpied the utnd in eom- mon for aeTeral yaars^ and made Mveral joint payments to the mortgagee on ac- eount of the mortgage debt B. and C. afterwards divided the land equally be- tween them by deed of partition. In a suit for foreclosore of the mortgagei B. claimed that as Wween himself and C, his portion of the land had been released by the mortgagee at the time A. conveyed the land to hint, and that O.'a lot shdnld be first sold to satisff the mortgage. — Held, 1st. That in the alMWnee of any written agreement by the mortgaffeej the whole of tne land remained eqtulfy liable to the mortgage, and ahonld be aold in one lot 2na. That if a ver>>ri agreement, and the appropriation c. the payment by A., would be soffioient to release a par- ticular part of ihe mortgaged landi^ it would not bind 0. who was no party to it. 3rd. That the subseauent partition of the land between B. ana 0>, in ignoranoe by the latter of the agreement by which the tortion of the land allotted to B. wai to e released firom the mortgage, was a fraud upon 0., and that such agreement would not be carried out fbt B.*! benefit Johtuton V. Me Oartney and oihen, 1 Man. ANSWER IN EQUITY. 18-Aniwer in Bquity— Vnotioe. An objection that a toit is deftotlTti for want of parties, cannot be taken on the argument of exceptions to the defendant's answer, ffendri^i v. ffattet, 1 Bdti. 185. In answerinir intorrogatoriea, ths defendant must connsa, or traverse the anbetnnce of each charge in the bill. FartlouUr charges must be answered partieularly and precisely, and not in a general man ner. Ibid. Where defendant ak intMtagnted ai to the Moeipt of partiedar mum of money, it is not tvfioient to #eftr to an aeeount an> noced to his answer, ae shewing what he had reeeiv«d, unless he states that it is the best aooonnt he ean g^ve^ Hmdriek$ r. BaOet, I Hm. 18fi. If he states that an aoeottni annexed to his answer, contains all the ihfohnation he is able to give on a pariieoliir qnestaen, it is snfieient ; though it Was his duty to hHve kept a mor* parti(>nlar acconnt Ibid. Defendant is bound to answer an interroga- tory if it iB |lertinent to tho o*M tbltclkeVf the bill, though it is not fdnndod da any speoifio eharge in the bill : and Sembk, That he should answer an interrogatory whether it is material or not Ibut, Defendant, filling the offices of trmtee ud executor, is bound to answer an interro- gatory, whether his accounts distingoish the receipts and eharges as trustee from those as executor. It is not suffioient to refer the plaintiff to the aeeoonts. IIM. Defendant is bound to answer as to his own transactions, and, if neeeesary to obtun information to enable him to do so ; but he is not bound to seek information r*. to transactions not his own, and of matters equally aooessible to the plaintiff* Ibid* As a general rule, if defondtat proftsMs to answer, he must do so Ailly ; and he ean- not protect himself from the consequences of an inanficiont insWOiT, by objectine that the interr(^gstonr is not warranted by the bill, «r that the fkintiff has no equity. Ibid. An Muwer whiflh state« a oondlnsion of Uw, is insufficient Ibid. When an answer danies er ignores i mMter inquired after, it mnst be aS to tha de- fendant's kttowlsdgei itafonnalioni or be- lief. Ibid. Defendant mMf b« iolHrrogats^ as to the contents of writings, decrees, ete. Ibid. Where the disoovery wonU be material to the case made and the relief prayed by the biU, a defendant may bfi interrootod as to the amount of his propsrty, aM his abilHy to pay : but b» is not bonnd to answer a mere nypothetical interrogatory. Ibid. '*- -• ^ 14-^Fiine illoiradi to aiMww. A defendant is entitled to a month to an- swer after filing of th« bill ( and nolioe ""^«lB!!!P!fP 178 ERROR (WRIT OF). ERROR (WRIT OP). of motion to take the bill pro cvnfeno oiiQnot be given till tlie expiration of that time, though a copy of the bill and inter- rogatories may have been senred on the defendant more than a lOOnth before the notiee. Godfrtyy. Ogletby, 1 San. 283. 15— Amendment^Death of defendant. Where one of the persons named as de- fendants in a soit had died before the summons issued, the pleadings were am- ended by striking out his name, and the answer was re-sworn. £jfer$ t. Harri- gan, 1 Han. 231. le— Adding plaintifBi— Further allow- ance of time to anHwer. Where an amendment was made in a fore- closure suit, by adding plaintifls after the - filing of the bill, the defendant was al- lowed a month to answer after serriee of the order to amend, and of a copy of the amended bill WriglU r. Evatuon, 1 Ban. 232. See Supreme Court in Equity. EQUITY APPEAL. See Supreme Court in Equity. " Practice in Equity. EQUITY OP RBDiilMPTION. See Equity. Purohaie of, by Mortgagee — ^Effect See Mortgage 17. ERROR (WRIT OP). 1— If it lieu for not awarding judgment Hon obitante veredioto. Qumre, Whether a writ of error lies for not awarding judgment non obitante vere- dicto, particularly where the Court below might hare awarded a repleader; or whether the Court of Error may award such judgment non oh», veredicto f Kin- n»ar t. Oailagker, 1 Kerr 424. a— Miatake in entnr of warrant of At- torney on rolt-Taking advantage of. A mistake in the entry of the warrant of attorney on the roll, and in the ineutitur of the judgment in stating the action to be "trespass on the case," instead of ** debt/' cannot be taken advantage of on the general assignment of errors. Ibid. 8— Application to amend, pending writ of error. Pending a writ of error, tho Supreme Court may allow application to be made to the Court below to amend formal errors on tho record, and may suspend judgment in the meantime. This was allowed where the award of the venire and the day of trial were left blank in the record below. Kinnear v. OaUagher, 1 Kerr 424. 4— Ol^ection muat be taken in Oourt out of which writ ismed. No objection can be taken to a writ of error in the Court below: it must be made in the Court out of which the writ issued. Coffin v. Marshy 3 Kerr 427. 6— Bule to assign errors is a four day rule— DouDle costs— Delay in a»- signing error. The rule to the plaintiff in error to assign errors, is a four day rule — ^the English practice not having been altered by rule of this Court. Gilbert v. Sajfre, 2 M. 512. If judgment is afflrmed after error assigned, the defendant in error is entitled to doub]'> costs, under the Statute 13 Car. 2, « , s. 10. Ibid. Quare, Whether the defendant is entitled to such costs where the vrit of error i« non proned. Ibid. A plaintiff in error not having assigned errors, the defendant, after the lapse of nearly nine yean, issued and served on the plaintiff in error a scire facia* tp,. executionem non, and a rule to assign errors. The plaintiff not having assigned errors, the defendant signed judgment on the acire /aeiaa. The Court reftised to set aside this judgment after the expira- tion of a term, but granted a rule to shew cause why the plaintiff in error should not be aUowed to assign errors in bar of judgment of non pro$. Ibid. e— IVom what Oourt should issue. A writ of error to remove a cause fbm the Court of Common Pleas into this Court should issue out of the Court of Chancery : and if issued out of this Conrt it is a nullity. MiU$ v. Vail, 4 All. 239. 7— Filing of— Time. An assignment of errors cannot be M till after the return of tho writ of error; and a tcire faciat ad audiendum erroret issued before the return of the writ of error will be set aside for irregularity. Wetmore v. Levy, 4 All. 502. 8— On Judgment of Infarior Oourt- Matter ez debito justitiB. A writ of error on the judgment of od Inferior Court, being grantable ex ikhitn BSOAPB. ESTOPPEL. 178, jusHtite ean only be taken away by the express words of an Act of Assembly; and therefore it lies on summary judg- ments in the Court of Common Pleas. Wetmore v. Levy, 4 Att. 510. A writ of error to remove a cause firom the Oommon Pleas, should issue out of the Court of Chancery, be tested in the name of the Lieutenant Governor, and be re- tamable at Frederioton. Ibid. 0— AfBrmanoe of judgment— Interest— Notioe neoessary. Notice should be given of an application to be allowed- interest on the amrmanoe of a judgment in error. MUh v. VaU, 4 AU. 629. 10— IWuing of wit wt fk. »d. and. erroreB. It is not necessary that a scire faeiiu ad audimdum erroret should issue of the same term in which the writ is return* able. Wetmore v. Levjf, Hii. T. 1801. ESCAPE. On Final Process— Measure of Damages. See Damages I. 12. 1— Bight to iame fl. ^^. e^er eaoape. The recovery of judgmeut in an action against the Sheriff tot an escape, unless it produces satisfaction, does not destroy the plaintiff's vemedy agtiust the debtor. After an escape flrom execution, the judg- ment creditor may issue a /. fa, against the debtor's property. Ketty v. Wilton, 2 AU. 4. 2— Application by Bail to render after escape. If a debtor escapes from the limits, and his bail apply to oe relieved on rendering him to jail, under the Act 13 Vie. e. 30, Buoh relief will only be granted on condi- tion of his being rendered to the jail whence he escaped. Peteri v. Perl^, 2 iff. 686., S-Damage— Attachment for non-pay- ment of oosts is in the nature of mesne process. An attachment for non-payment of costs is in the nature of mesne process, and a Sheriff is not liable for the escape of a person in custody on such process, unless the jplaintiff has sustained actual damage or delay in consequence of the escape. Atkituon v. Mitchetl, Trin. T. 1866. 4-Sheriir—JuBtiflaation— Order for discharge. The production of an order of a Judge of a County Court, valid on its face for tho discharge of a debtor, under the 1 Rev. Stat. c. 124, is a j.uBtification to the She- riff in an action for the escape of the debtor ; ruid he is not bound to prove the regularity of the previous proceedings. Ckmmtum v. Coombea, East. T. 1871. Prisoners delivered over by old Sheriff to new — Chargeable for escape. See Sheriff 13. Debt — Action of, against Sheriff for escape, not maintainable. See British Statutes 3. Action on limit bond for escape — Assign- ment of first bond — ^Taking second bond. See Bond 11. 9. ESTATE. See Deed — Mortgage — Will — Landlord and Tenant— Tenant at Will. ESTOPPEL. I. Bt Acts — Conduct — Admissions. XL AOQVIESOENOK. in. Opining up of. Estoppil. IV. MiSOXLLANIOUB. I. Bt Acts — Conduct — Admissions. " 1— Leasing premises— Setting up title in a third person afterwards. Ejectment. By indenture bearing date 1st May 1829, the land in question was leased by the lessor of the plaintiff to the defendant for two years, at the rent of £6; the defendant remained in posses- sion several years after the expiration of the lease, but there was no proof of pay- ment of rent. Held, That notwithstand- ing this, and that the defendant had not been actually let into possession by the lessor of the plaintiff, yet he was estopped firom denying his right to lease, and from setting up a title in a third person at the time of making the lease, under whom the defendant was entitled to claim, there being no proof of firaudulent misrepresen- tation or concealment to mislead tne de- fendant when he accepted the lease. Doe dem Sands v. Phillips, 1 Kerr 86. 2— Bunning boimdary lines by Survey- or mutually chosen- Acquiescence. Where a boundary line has been run between adjoining proprietors of land by a surveyor, mutually employed bv them, and acted upon for a uumoer of years, and improvements wi subsequent ooa- 174 ESTOPPEL. ESTOPPEL. Teyanoes koade aoeording thereto. Held, That the parties were bound by it, althoagh it proved to have been run ▼ery incorreotly, and to deviate materially firom Ute dcBoription of the boundaries in the title. deeda under which thb parties were holding, and to gira the defendant 160 instead of 100 aeres of land. Doe dem Carr v. McOuUoch, 1 Kerr 460. ft— Aooepting lease. Where B., being in possession of land, accepted a lease of the same from A., who claimed title thereto. Held, That B. was thereby estopped fVom denying A.'s right to the possession at the termi- nation of the lease, no other person having interfered with B.'s holding under the lease, and no fraud or deception having been practised by A. in order to induce B. to accept the same. Doe dem Satuft V. PhiUips, 1 Kerr 633. 4— Appearance and pleading— Ctorporap non. The defendant being sued as a Corpora- tion, and appearing and pleading and as such in bar to the action, is estopped at the trial from disputing ita ezistenee as a body corporate, and its ability to contract in that capacity. Seelye v. Lan- . coaler Mill Company, 1 Kerr 377. 6— Payment of rent— Outstanding title. The plaintiff being in possession of land, a grant of it was made by the Crown to the Bector, Churchwardens and Vestry of W., of which the Rector informed the plaintiff, who agreed to hold the land from the Bector at an annual rent, and paid the rent two or three years. Held, That the plaintiff could not dispute the Rector's title by shewing a previous grapt of the same land to B., through whom he did not profess to claim. Hughes v. Hohnet, 1 AU. 12. 6— After a oonveyance of hind made by a person of unsound mind, a tenaat for S«rs,of the land paid rent to the grantee, eld. After the death of the toaant that his widow was estopped by the payment of rent, /W>m denying the title of the Santee Dout 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 afterwards 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 in the land at the time of the Sheriff's sale, his acquiescence in such sale would not divest him of his estate. Doe v. Baxter, 3 All. 232. Queere, Whether the plaintiff took an estate m pretenti under the deed, or an estate in remainder after the death of his father ? If the latter, semble, that his acquiescence in the sale and division of the land dur ing his father's life would not operate as an estoppel in pais. Ibid. Nuisance — Plaintiff's presence while work proceeding. Soe Action on the Case III. 1. III. Openinq up op Estoppel. 1 — An estoppel by record must be pleaded if there is an opportunity of doing so, otherwise the truth may be shewn. Wel- don V. Weldon, 2 Han. 188. 2 — An estoppel arising from an admission in a conveyance of land, of the receipt of the purchase money, is opened by a bond from the purchaser to the vendor con- ditioned to pay such sum for the property as arbitrators should determine. Coram V. Whetm, 4 All. 293. IV. MlBOELLANEOTJB. 1— Judgment against several— ITon- servioe of process iipon one— No knowledge of suit— Judge's order setting aside arrest in reply to judgment recovered. A judgment was obtained against A. and two others, without service of process on A., or his having any knowledge of the 23 suit. (An attorney retained by the other defendants having appeared for A. also.) He was afterwards arrested on a ca. aa. issued on the judgment, and was dis- charged by a Judge's order on an aflSdavit denying knowledge of the suit and of any authority to the attorney to ttppear for him. Held, in an action for false impri- sonment against the plaintiff in that suit, That A. was not estopped by the judg- ment 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. Svlis v. Ferguson, HU. T. 1861. 2— Judgment on scire fiusias. A judgment on scire facias in proceed- ings in bastardy, under 1 Rev. Stat. o. 57, is conclusive while it stands, and the defendant cannot object that the amount of costs is excessive. Reg. v. Carson, EU. T. 1866. 3 — Judgment in defended cause — Filing papers — Motion to set aside — Defendant estopped from taking advantage of papers not being filed. Lynnty. Seelye, 1 All. 36. 4-BaiL Qutere, Whether an application by bail for relief, under 1 Rev. Stat. c. 124, estops them from afterwards applying to defend on the merits. See Rippeu v. Austin, 4 All. 77. 6— Bills and Notes. Indorser, non-joinder in indorsement of joint payee, cannot be set up by payee who indorsed. See Bills and Notes V. 28. Indorser delivering Note to Bank, cannot set up forgery of signature of maker. See Bills and Notes V. 21. Carrier — Master of Ship— Not estopped by bill of lading. See Carrier 1. Consent Rule — Plaintiff not estopped by. See Ejectment VII. 6— Corporation. Presumption of Letters patent being pro- perly issued, title of Corporate body being recited in instrument, and consent rule by party making objection. See Corpora- tion 7. See Supra I. 4. Crown Grant — Bounds — Reference to other grants. See Crown Grant 8. 7— Evidence. Plaintiff relying on estoppel, defendant taking possession under a written agree- ^mm 1T8 EVIDENCE. EVIDENCE. ment, it must be produced. See Evidence VII. 3. Tenant by Courtesy — Diluting title of Lessor. See Ejectment II. 7. Covenant binding Assignee. See Covenant 7. EVIDENCE. I. Admissions — Declarations — Acts. II. Judicial — Official and other Documents. III. Particular Actions and Suits. IV. Particular Pacts. V. Parol Explanations. VI. Presumptive Evidbnob. VII. Secondary Evidence— Notice to Produce. VIII. Examination of Witnesses on Trial. IX. Commission — Interrogatories — Depositions. X. Admission from Pleadings. XI. Miscellaneous. XII. Questions for Jury. XIII. General Issue— Evidence UNDER. I. Admissions — Declaration s — Acts. See Acknowledgment. 1 — Admisaiona under Great Seal of the Pro- vince — Evidence against the Crown. Rex V. Wthon, Ber, 1. 2— By professed owner of land— Pay- ments. Where the defendant deduced hid title by several mesne conveyances from W. K., the declaration of W. K. while the pro- fessed owner of the estate, that he never paid any thing for it, are properly admis- sible in evidence to shew that the recorded deed to W. K. was not made, as it pur- ports to be, for a valuable consideration. Toffim V. Good, 3 Kerr 272. 8— Bes Oests— Counter Evidence. The declaration of a party accompanying the act of shewing the point of beginning on the boundary of a grant, are admissible in evidence as part of the res gettu, but the truth and correctness of such declar- ations are open to be controverted by other evidence. Doe detn Lonchester v. Murray, 3 Kcir 335. 4- Ctontradioting Deed. The declaration and admissions of u party filling v,!ie character of surviving paiitner and administrator, and also of another party as heir of a person through whom the defendants claim title, were offered by the plaintiff in evidence, but rejected by the Judge on the ground that such admis- sions went to contradict the terms of a deed between the parties who made the admissions. Field, That the learned Judge was right in rejecting such evi- dence. Moloney v. Burden, 3 Kerr 515. 6— At time of making bargain. Evidence of what the parties said at the time of making a bargain for the purchase of land, is admissible to shew what they meant by certain expressions used in the conveyance. Doe v. PUt, 1 All. 385. 6— By grantee— Efitet o£ The verbal declaration of the grantee of land, that he had sold it to a person under whom the defendant claims, is not suffi- cient to shew title out of the grantee. Doe\. Todd,'2An.2%\. 7— Commissioner of Highway— Inten- tion. The declaration of a commissioner of high- ways, at the time of laying out a road, that he intended to lay it out four rods wide, is not admissible. Basterach v. Atkinson, 2 All. 439. 8— Judgment Debtor— Ability to pay. Quxre, Whether in an action for an escape, evidence of the admission of the judgment debtor of his ability to pay the debt, was properly rejected. Kelly v. Jones, 2 All. 465. 0— Trover— Statement at time of de- mand. 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. Held, in trover for the bill of sule. That the defendant's declarations made at the time of a demand, stating his reasons for refusing to give up the bill of sale, were admissible in evidence. Dever v. MyshraU, 3 AU. 354. 10— Iteadulent oonveyanoe— Declara- tion as to state of affbirs^ Where the issue was whether a convey- ance fi>om A. to the defendant was fraudulent, a declaration made by A. as to the state of his affairs, is not admis- EVIDENOB. EVIDENCE. 179 sible in evidence, unless made at, or about the time when the deed was given. Doe V. Fratet, 3 All. 417. A letter written by the plaintiff to A. several years after the conveyance and not re- ferring to it an^ way, is not evidence for the defendant m such a case ; nor is a subsequent conveyance of land from the defendant to A. admissible evidence to rebut the charge of fraud in the convey- ance from A. to the defendant. Ibid. Where the declaration of a third party is offered in evidence, the circumstances relied on to make it admissible should be stated to the Judge. Ibid. 11— Maker of note— DeolarationB. lu an action against one of a joint and several promissory note signed by him as a surety for the other maker, declarations of the latter made subsequent to giving the note are not evidence against the defendant. Palmer v. WiUmr, 3 All, 443. 12— Statement of affldrs— Exhibit— Sohednlo. A debtoi, lor the purpose of making a settlement with one of his creditors, c&liibited to him a statement of his affairs, which the creditor copied in his presence. Qtuere, Whether such copy was admissible in evidence as a duplicate original or as a statement made by the debtor without notice to produce the original. A schedule referred to on a mortgage, but not annexed to it, is not admissible in evidence without proof that it Was signed at the same time as the mortgage. Lawton v. Tarrat, 4 All. 1. 13— Entry in books— To whom credit given. In an action for money lent, where the question in dispute was whether the loan had been made on the credit of the de- fendants, who were Aldermen of the city of St. John, and borrowed the money for the use of the oity— of which the plaintiff was aware at the time ; an entry made in the plaintiff's books debiting the Oorpor- ation with the money, is not conclusive } it not having been communicated to the defendants, and no authority from the Corporation to contract the loan, having been proved. Gilbert v. Porter, 1 Kerr 390. 14-Fraudulent transfer-Entries in books— Admissions as to state of business. B., who was largely indebted, and several suits pending against him, transferred all his property to the plaintiff for JC7,000, and took as payment the plaintiff's pro- missory notes payable in five years, with- out 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 plain- tiff's notes in the market, and his probable means of paying them, was relevant testi- mony to shew that the transfer was frau- dulent and made to defraud B.'s creditors. Held also, That entries in B.'s books re- lative to the property, though made by his clerks, might be referred 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. Tarrat, 4 All. 1. In order to establish fraud in the transfer, declarations and admissions by B., both before and uler the transfer, as to the general state of his business and the value of the property transfvri-ed, are admissible in evidence on the pt^t of the defeudant. Ibid. The reasons for objecting to such evidence where its admissibility is doubtful, are much diminished by the Act 19 Vic. c. 41, allowing the parties to testify. Ibid. 16— Insurance— Verbal declarations of owner of vessel as to part own- ership. In an action upon a policy of insurance for the loss of a vessel, the verbal declara- tions of the plaintiff, the sole registered owner, that another person a foreigner was part owner, are not sufficient to disprove the allegation of interest in the plaintiff, who had obtained the register upon his own declaration, and acted as owner in procuring the insurance, and in the other affairs of the vessel. Watson V. Summers, 2 j£err 62. 16— lyectment— Examination in Bank- rupt Court— Acknowledgment of title. Plaintiff in ejectment relied upon a de- claration made by the defendant in Lis 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. Held, Not to be such an acknowledgment of title in the plaintiff as to prevent the operation of the Statute of Limitations. Doe v. Tay- lor, 4 All. 165. 180 EVIDENCE. EVIDENCE. 17— Statements in bill in Equity. The statemeri^s in a bill in Equity, under oath, are evidence against the party filing it, in an action at law. Doe dem Painter V. Ross, Trin. T. 1862. 18 — Consideration — Satisfaction — Admis- sions explainable by circumstances. See Consideration 8. 10— Trespass— Fosseflsion—CtonTersft* tion. The defendant in an action of trespass justified under A., and in order to shoit title in him, ofiered evidence of a conver- sation between A. and B. — not made upon the land, but several miles distant from it — in which A. gave B. permission 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 sufficient evidence of A.'s possession, and that the justification was not proved. White v. Smith, 4 AIL 335. 20— Declarations of members of Com- mittee— Agents. In an action against the Corporation of St. John for negligence in constructing a sewer, whereby plaintiff's land was over- flowed, declarations of Aldeimen, mem- bers of the Corporation, relative to the sewer are not evidence against the defend- ants; hnt declarations of members of a committee appointed by the Corporation to superintend the construction of the sewer, made while the work was in pro- gress, and relative thereto, are evidence — being the declarations of :in agent relative to a matter within his authority. Rilei/ V. The Mayor etc. of St. John, Hil T. 1866. 21— Boundaries of land— Deolaration must be nuuie while party in pos- session—Or against interest— Or privity shewn. The deolaration of a person 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 per- son ugainst whom his deolaration is ofiered. Sartall v. Scott, Trin. T. 1864. 21 a Boundaries— Declarations by per- son in possession. Doclarutions respecting the boundaries of land by a person in possoBsion, and under whom the defendant oiaiuis, arc evidence against hiui in an action in which the boundaries of the same land are in dis- pute, mes V. Burke, HU. T. 1873. 22 — ^While the Crown is the owner of land it may, by its declarations, explain or con- trol a previous grant, and a party claim- ing under a grant, subsequent to such declarations may be bound thereby. Car- ter v. Saunders, Trin. T. 1864. (Sec Crown Grant.) 23— Action against Sheriff— Taking goods on execution — Declara- tions of third person as to transfer. In an action against a Sheriff for taking goods under an execution against P., which the plaintiff claimed under a pre- vious 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, "^re not evidence against the plaintiff ; though the fact of such posses- sion is proper for the consideration of the jury in determining the hona fides of the transfer. Doak v. Johnson, 1 Kerr''cl9. 24— Action tor Wages — Evidence — Becognition of plaintiff's right to give orders — OflBoial charac- ter — Oompfuiy. 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 Iso by his direction. Before the goods were ordered, the defendants had notified the plaintiff that he was not the Secretary of the Com- pany. Held, That the payment by the Company for the work and gods was not a recognition of the plaintiff's right to give the orders, or an acknowledgment that ho was the Secretary of the Com- pany. Ansleu v. Albert Mining Com- pany^ Mich. T. 1862. Fieri Facias — Delivery — Intention to have executed — Letter to debtor. See Execu- tion I. 5. Account rendered. See Assumpsit III, 3, Bills and Notes — Admissions. See Hills ■ and Notes IV. 9. To party stranger to suit — Matter not nffoctr ing suit. See Estoppel I. 14, lleceipt of purchase money in Deed. Sco Estoppel I. 17. Counsel addressing Jury. Sco Attorney X. 16. Estoppel 1. 23. •^MWaMHRRI mm mmmm EVIDENCE. EVIDENCE. 181 Estoppel opened by Bond. See Estoppel III. Admission of party that Bond was his — Not oonolusire. See Estoppel I. 25. Libel — Justification from Admission. See Defamation 9. Subsequent act not afieoting previous admis- sion. See Assumpsit III. 21. Offer to confess Judgment. See Judgment II. 4. Payment of money into Court. See Infra X. 9, 10, 11. II. Judicial, Official, and other Docu- ments. 1-Plan— Grant. A plan produced by the heir of one of the grantees of the Grown, which had been in his possession for twenty-five years, and which had been seen in his father's pos- session for fifteen years before that, and which was kept with the grant, was held to be sufficiently authenticated aa the plan referred to in the grant as " annexed," though the witness had never seen it an- nexed to the grant. Rexv. Wihon,Ber.l. 2— Subsequent grants— Beferenoe— Biftet. Where land in dispute was contained in a grant from the Grown to the defendant in 1827. but was claimed by the plaintiff ns part of a grant made in 1784, to one D., under whom he made title, if there is any uncertainty as to the rear line of the grant to D., subsequent grants from the Grown to other persons, prior to the de- fendant's grant, in which the D. grant is referred to, are ovidonco for the purpose of nsoortaining where the Crown consider- ed the roar line of the D. grant to be ; but not to vary its description, nor alter its oonstpuction. Doe dem Carpenter v. Jonet, 3 Kerr 155. 3 — Where the lessor of the plaintiff claimed the land in question as being part of lot No. 33, granted by the Crown in 1784, and the defendant claimed it as a lot in roar of No. o3, granted in 1839 ; other grants of the Crown of adjoining lands, made in 1786, and between that date and 183i), may be referred to for the purpose of showing what the Crown cunsidered to bo the true roar lino of lot No. 33 ; p»">vl. dod there is any uncertainty as to the une. Doc dem Pom/ord v. Vernon, 2 Kerr "".SI, 4— Where land granted to the defendant in 1839, was described aa being in rear of lot No. 33 (granted in 1784,) and lying between that lot and lot No. 39 ; subse- quent grants of adjoining lands in 1786 and 1787, in which lot No. 33 was descri- bed as extending to, and bounded on lot No. 39, are evidence to shew the Crown out of possession, for more than 20 years, of the land described in the defendant's grant, so as to prevent that grant from operating without a previous inquest of office. Ibid. 5— Where the question in dispute is the dividing line between two tracts of land granted by the Crown, a grant issued sub- sequent to both these grants is not evi- dence for the purpose of explaining any ambiguity in either of them, and ascer- taining where the Crown intended the lino to be : while the Grown is the owner of the land, it may by its declarations ex- plain or control a previous grant, and a party claiming under a grant, subsequent to such declarations, may be bound there- by. Carter v. Saundert, Trin. T. 1864, 6— Surveyor's return— Ambiguity in grant. A return of a survey of land filed in the Surveyor General's office, upon which a grant issues, is admissible in evidence to explain an ambiguity in the grant, though the handwriting of the Surveyor who made the return is not proved — it being an official document coming from the proper custody, and the Surveyor being dead. Wiggins v. McLean, 1 All. 671. 7 — A return of a survey of Crown Land filed in the Surveyor General's office, is noii evidence to prove that the Surveyor has run the lines stated in the return, although it is an ancient document, and the Surveyor is dead. Maynet v. Dolan, 3 All. 673. 8— Beoree of partition. A decree of partition is evidence in an action of ejectment, to show that the land in dispute, formerly part of an undivided estate, had been assigned as the separate property of tho plaintiff. Doe v. E»tci/, 3 All. 489. 9— Deed— Pleading— Assent of grantee. To an action for tho broach of a written contract whereby B., in consideration of £500 paid to him by A., agreed to con- voy to A. a mill and mill privilege at P., as soon us he obtaiuod a grant thereof. 182 EVIDENCE. EVIDENCE. B. pleaded 1st. non aamimpitit; 2adly. That he executed aud delivered a coa- veyance to A. ; and 3rdly. That a con- voyauoe was tendered and refused. At the trial a registered deed was offered in evidence under the pleas, but without proof by the subscribing witness of the execution in the ordinary way. Held, That Huch evidence was properly rejected, it not being competent for the grantor to make a deed evidence by mere force of the registry and acknowledgment, with- out delivery to or the a-^sent of the grantee. Smith V. MlUuhje, 2 Krrr 408. ?0— Proof of Deed, before received in evidenoe. A deed appeared to have been executed in the presence of two witnesses, one of whom, a Justice of the Peace authorized to take acknow'jdgment of deeds, was dead : no account could be given of the other by persons who had the best means of obtaining a knowledge of the inhabi- tants of the place where the deed was executed. Held, That it was properly received in evidence on proof of the hand- writing of the deceased witness. Doe v. Hatheway, 2 All. 69. 1 1 — The execution of a deed of conveyance is not proved by the Magistrate's oertiti- cateof acknowledgment endorsed thereon, without registry. Joplin v. Ji/hnaton, 2 Kerr 541. 12— Registry of Deed before proof. A deed offered us a registered conveyance, appeared by the certificate endorsed, to have been registered before it way proved. Held, That it could not operate ns a suf- ficient registry by relation, and that the deed was improperly admitted in evidence. Doe V. liuleout, 3 All. 502. 18— Regifltry Book— Two deeds written on one sheet— One Oertifloate. Whore two deeds were written on the same sheet of paper and registered ut the same time, but only one certificate of registry and one number wore endorsed — Held, That the Uogistry Book was properly ad- mitted in evidence to show that both deeds wore registered. Doe v. McUullvy, 3 All. 194. Qurcre, Whether a proper certificate of ro- aistry could not have been indorsed at 10 trial. Jliiil. 14 -Probate of Will. The probate of a will, though registered, is not uvideuco of a due uxuoution tu pass real estate. 243. Hamilton v. Love, 2 Kerr 1&— Judgment of Foreign Court Is evidenoe only of debt. See Fergm V. Wardlaw, 3 Kerr 665. 16— Seal of Foreign Judgment. It is sufficient that the seal affixed to n foreign judgment is the seal used by the foreign Court, though it purports on iu face to be the seal of a dififerent Court from that in which the judgment was ob- tained. See Cyr v. Sanfacm, 2 All, 641, 17— Foreign Judgment— Proof of. A judgment of the Court of King's Bench in England may be proved in this Pro- vince by an examined copy verified by an affidavit sworn before the Lord Mayor of London, under the Act of Parliament 5 Geo. 2, c. 7 ; such affidavit by the Act being tantamount to the viva voce testi- mony of the witness. Champion v. Long Hil. T. 1834. 18— Record of Judgment — Debt on Bond— Date. Semble, That the record of a judgment in an action on a bond, is evidence of the date of the bond, in an action of eject- ment by a person claiming title under the obligor, to shew that he was indebted at the time of the conveyance, and that it is therefore fraudulent. Doe t. Gilbert, 1 All. 520. 19— Writ— Execution. An altered Ji. fa. is not receivable in evidence. See Johnston v. TT/ns/oif, Ber. 53. 20— Original fl. jEk. not returned. In uiaKing title to land under a Slioriif's deed, the original execution under which the land was sold when not returned and filed in Court, is admissible in evidence. Linton V. WiUim, 1 Kerr 223. 21 — In an action against a Sheriff to re- cover money levied by him under an execution, tlie originul execution with the Sheriff's return thereon in the hands of the attorney is not evidence; nilcr being returned the execution is a record, and the evidence should oomo from the proper custody. See Supra 20. *Sirmer Zteoovery— AdmiBSible in Beplevin. A former recovery in replevin is admis- sible in evidence in a subsequent action between the same parties without being pleaded, where the matter in dispute is in substance the same, and relates to the title of the land from which the trees were cut and carried away. Stewart v. McFarkme, 1 All. 233 18— Bankruptoy—Certifloate— Fraud. Evidence that the bankruptcy was frau- dulent and collusive, is inadmissible on a trial at Ni»i Prius to impeach a bank- rupt's certificate duly obtained from the Commissioner, and certified by the Court of Chancery under the Acts 5 Vic. c. 43 and 6 Vic. o. 4. Morrison v. Albee, 2 All. 145. 1ft— Trespass— Laying out road— Justi- floation^Plaintiff's original oase — Bebuttinjs evidence. The defendants in trespass justified enter- ing, under the Act 13 Vic. o. 4, as Com- missioners 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 excess in laying out the road wider than the law allowed, must be given as part of the plaintifif's original case, and was not admissible as rebutting evidence. Downing v. Gault, 2 All. 5^9. Qutere, Whether evidence of a person not present at the laying out, but who after- wards examined marks on the trees where the road was laid out, is admissible to prove excess i Ibid. 20— Speoial dama|(e— Oontraot. Evidence of special damage in not being able to fulfil a contract for the delivery of logs, is not admissible where the damage alleged in the declaration is that the plaintifi' was prevented from getting the logs to market, and thereby lost the freight and sale thereof. Rowe v. Titus, 1 All. 326. ai— Beoord of Judgment— Date of bond. Sembk, That the record of a judgment in an action on a bond, is evidence of the date of the bond in an action of ejectment by a person claiming title under the obli- gor, to shew that ho was indebted at the time of the conveyance, and that it is therefore fraudulent. Doe v. Gilbert, 1 AU. 520. 22— Entry on books— Delivery of timber. Where both the plaintiff and defendant claimed to have had a delivery of timber from M., the original owner, an entry by the plaintiff in his books, of a credit to M. of the amount of the timber, d&ted at the time of the alleged delivery, but not actually made till a year after, and with- out the knowledge of M is not evidence for the plaintiff. McMillan v. Frnser, 2 All. 615. 28— Penalty— Prosecution for— Belling liquor without license. In a prosecution for a penalty for selling liquor 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 3mployment of such person by the defen !int in the sale of liquors, is sufficient prima facie evidence against him. Ex parte Parks, 3 AU. 237. The prosecutor need not prove that the defendant had no license. Jbid. 24— Action against administrator. In an action against an administrator to which he pleads au outstanding judgment, and plene administravit prater, and the plaintiff proves assets in the defendant's hands, more than sufficient to satisfy the judgment, the defendant will not be al- lowed to give evidence of the payment of debts before the recovery of the judgmeot and before the receipt of the assets. Backhouse v'. Palmer, Ilil. T. 1828. 20— Action against !eh), where ho justifies under au e .cc ' h\ against a third person, he must < in evidence the judgment on which the execution was fodnded. Crane v. Clarke, Hit T. 1828. 2d—Trespa8s— Title in foreign country. In an action of trespass de bonis asporta- tis, evidence of title to land in a foreign country is admissible to prove the plain- tiff's right to the property taken, it/asii V. Chamberlain, llil. T. 1828. ^■niMv^^i"^ mw """^iwmHpw EVIDENCE. EVIDENCE. 187 27— Action on Quarantee— Joint or several interests. Defendants gave a guarantee that the wages due W. K. and G N. from J. H. for making timber, should be paid when they brought the timber up. Held, in an action on the guarantee by Qt. N., That evidence was admissible to shew that he and W. K. were separately em- ployed by J. K., and had separate wages, in order to shew that their interests un- der the guarantee were several. Neville V. Joseph, Hil. T. 1832. Ejectment — SheriflF's Deed — Sale under an alia». the original execution need not be proved. See Sheriff's Deed 6. Replevin. See Pleading II. 27-30. IV. Particular Facts. 1 — Administration — Letters of are evidence of the intestate's death. See Scribner v. Gibbon, 4 AU. 182. 2— Administrator's deed— Affidavit— Evidence of what. The affidavit indorsed on a deed purport- ing to be made by an administrator under a license from the Probate Court, is not evidence of the death or granting of administration; but only that the land has been duly advertised and sold. Doe v. Donovan, 4 AU. 116. 3 — Queere, Whether the affidavit required to be indorsed by the Rev. Stat. c. 136, 8. 42, on an executor's deed, is evidence of any of the proceedings except the advertising and sale of the land. Doe v. Thompson, 4 All. 483. 4— Agency. Semble, 'IPhat the fact of agency may be proved by parol, though the appointment was in writing. See Welsh v. Street, 3 AU. 251.. Agent Accredited. See Corporation 4. 0— Lease— Duplicate originals— Prima* ry evidence. The defendant let land to the plaintiff, and a lease having been written, A. by their direction, and in their presence, affixed seals and signed their names to it ; it was then agreed that A. should make a oop^ of the lease, and execute it for them in the same manner ; ho did so, and a few days afterwards, in the presence of both parties, delivered one copy to the plaiutiff and the other to the defendant Held, That they were duplicate originals, and that either of them was primary evi- dence. Leonard v. Young., 4 All. 111. 6— Proceedings against Administrator. It is sufficient to shew the substance of the proceedings against an administrator in the Probate Coiirt, without setting out the proceedings themselves In re Bun- ter, 1 Han. 233. 7— Ck>al— Merchantable quality— Evi- dence. In an action on a contract to deliver "Al- bert Coal," an article known to be used in the manufacture of oil, the breach being that the defendants had delivered coal of an inferior quality, yielding less oil per ton than coal of a good merchantable qua- lity, evidence is not admissible on the part of the defendant to shew how much oil per ton was obtained by another manu- facturer from Albert Coal, without also shewing that it was the same quality of coal as that delivered by the plaintiff. Spurrv. Albert MiningCo., East. T. 1871. Alien — ^Evidence of being one. See Alien. \ppeal — Evidence produced — Examination before Master — Court not bound to use it — When ? See Supreme Court in Equi- ty 4. Unstamped Check — Void — Not receivable in evidence. See Check 1. Bankrupt — Fiat proveable by certified copy. See Bankrupt 2. Bills of Exchange. See Bills and Notes. Bye Law — Must be proved. See Bye Laws. Chattel — Unregistered Ship — Revesting of possession. See Shipping Law 6. City Court — Judgment by default — Proof of particulars — Custom. See City Court. Composition Deed — Execution of. Deed IV. Crown Grant — Boundaries — Lines. Crown Qrant. Custom Duties — Goods liable for. Custom Duties. Deed — Acknowledgment — Execution. See Deed I. Deed of Master in Chancery — Prima facie evidence of proceedings, See Deed 1. 17. Deed Registry Book — One registrv of two deeds on same paper. See Deed I. 23. 188 EVIDENCE. EVIDENCE. Deed Registry Book best evidence of regis- try of deed. See Deed V. 13. Deed of Sheriff — Recital of other judgments — Proof not necessary. See Sheriff's Sale 1. Deed receivable in eyidence as part of res yesta without proof of judgment or exe- cution. See Doe v. Baxter, 4 All. 131. Docket of Judgment — Not necessary to Erovc docketing of judgment, under claim y virtue of Sheriff's sale under execu- tion. See Doe dem Barlow v. Hatfield, 1 Kerr 417. Foreign Law — Written law how proved. See Foreign Law. Insurance — Preliminary proof. See Insur- ance 38. Insurance — Waiver of proof of loss. See Insurance 33 a. Identity. See Identity (Name). Limitation — Payment relied on to take case out of operation of Statute — Necessity of affirmative evidence. See Limitation of Actions II. 2. Marrias;o. See Infra VI. 3. Memorial of Judgment registered against the Vendor is evidence of an incum- brance on the land. See Scott v. Gar- net, 2 All. 624. Mesne Profits — Evidence in action for. — See Ejectment (Mesne Profits). Negligence. See Action on the Case II. Contributory Negligence. See Negligence. Usage — Evidence admissible to prove doubt- ful contract, but not to contradict one that is plain. See McGivem v. Provin- cial Insurance Co., 4 All. 64. Voluntary Conveyance. See Deed II. Parol Explanationh. 1— OontentB of Deed destroyed— Buffl- oi«noy of proof— Lost Deed— Ancient Deed. Where the only evidence of the contents of a deed that was destroyed many years ago, was that of witnesses who hud read it and heard it read, who stated that it was « deed from A. P. and his wife to their dawjhter li. E. of the land ichere she lived, either sixty or eighty rods ; that it had the name of A. P. and his wife to it, and wa* to R. E. her heirs and assigns for ever, and the date was some time in the last century. Held, That sufficicDt did not appear to enable the Judge to direct the jury that such was a deed of feoffment, or to determine its legal opera- tion and effect. Qusere, Whether the contents of an "ancient deed " can be proved by parol evidence, or whether the deed itself must not be produced ? Doe dem Edgett v. Stiles, 1 Kerr 338. a— Bill of parcels— Bepresentation as to quality. The delivery of a bill of parcels after the sale of goods, on which a receipt was given for the price, does not exclude parol evidence of the representation as to quality. Magee v. Street, 1 All. 242. 8— Term "grandson." The term "grandson" ia its primary sense means a legitimate grandson ; and where there is a legitimate grandson to take by this description, and nothing od the face of the will to the contrary, parol evidence is not admissible to shew that an illegitimate grandson was intended. Doe V. Taylor, 1 All. 525. 4— Agreemflnt— Beferenoe to account. Defendant agreed, in writing, to deliver plaintiff a quantity of logs, for which the plaintiff agreed to pav him, after paying the amount of the defendant's account due the plaintiff, at the rate of sixteen shillings per thousand feet. Held, in an action on this agreement, That parol evi- dence was admissible on the part of the defendant, to show what the account referred to in the agreement was, and to identify an account rendered to him by the plaintiff, as the account so referred to. DesBrisay v. Glencross, 1 Han. 106. 6— Written Lease— Lot to be occupied. Where a written lease of a farm excepted a part of it, described as Lot No. 2, parol evidence is inadmissible to shew that it was agreed between the parties at the time of the bargain that the tenant sliuuld also occupy Lot No. 2. McElveney v. McKilligan, 1 Han. 322. 6— SheriffB Deed— Affidavit— Difitoent dates. Whore a Sheriff's deed and his affidavit of duo execution and sale, bear difl'crent dates, parol evidence is admissible to prove that they were executed on the same day. Doe d. Connell v. Dlckimnn, 1 Han. 466, on a sumcK ^ii^fiimmmm •^mgrmmffmnf^ EVIDENCE. EVIDENCE. 189 7— Explanations— Agreement in writ- ing. Plaintiff and M. built a vcgsel, of which defendant became master, purchasing a sixteenth from M. and a sixteenth from plaintiff, which he did not pay for. The vessel being in difficulties at Boston, U.S., and $1,240 duo defendant for wages, he, in consideration of 81,000, by deed of sale transferred to plaintiff all his right in the vessel, and released all claim on account of wages. Held, in an action to recover the price of the sixteenth. That parol evidence was admissible to prove that plaintiff, at the time of the deed being executed by defendant, verbally agreed to renounce all claim to the pur- chabo money. Lingley v. Smith, 1 Han. 589. Parol Evidence not allowed to amend She- riff's endorsement of return on writ. See Johnston v. Winslow, Ber. 53. Sale of Land — Property referred to — Parol explanation. See Sale. VI. Presumptwte Evidence. See Presumptions. 1— Surrogate— Person acting as such. It will be presumed that a person acting as Surrogate has taken the oath of office ; but if he has not, his acts will not be invalid if ho has been appointed to the office. Crookshank v. McFarhine, 2 All. 544. 2— Necessary affidavit— Court oonflrm- ing Certificate. It will be presumed that the Court of Chancery in confirming a certificate, acted on a sufficient affidavit of the bankrupt, Bs required by the Act 6 Vic. c. 4, s. 26. Morrison v. Albee, 2 All. 145. 3— Marriagce— Commissioner's Acts. In an action for crim. con. the fact of the plaintiff's marriage may be proved by any person present at the ceremony, and if performed by the Commissioner under the Act of Assembly 8 Geo. 4, c. 9, it will bo presumed (at least in the absence of proof to tho contrary) that ho was acting within his authority, and followed the re- quisition of tho Acta as to tho notification and form of the suleuinization. Mont- fjomery v. McLvoil, Ber. 375. Tho original certificate of marriage filed with the Clerk of tho Peace, as directed by tho Act 5;? Geo. 2, c. 21, may be giv- en in evidence, without calling the sub- scribing witness. Mimtyomeri/ v. Mc- Leod, Ber. 375. 4— Prima fbcia proof of Marriage. The land in dispute in an action of tres- pass, 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 ;.ross- examincd. Held, Sufficient jjrma /mcjc evidence of the marriage of A., and that B. was one of his daughters. Power v. Howie, Mich. T. 1864. 6— Coigporation— Persons acting as pre- sident and secretary. The Act 7 Wm. 4, c. 54, incorporating the New Brunswick and Marine Assur- ance Company, required that policies should be subscribed by the president and countersigned by the secretary. Held, That a policy so signed was valid without the seal of the Company, and that evi- dence of these persons having acted as president and secretary was prima facie evidence of their appointment. Dimock v. New Brunswick and Marine Assurance Company, 1 All. 398. 6— Person practising as Surgeon. Evidence that the defendant practised as a surgeon is sufficient proof that he was such. See Kelly v. Dow,''i All. 435. 7— Rebuttal of presumption— Payment of debt— Omission in schedule of debtor— Evidence to shew mis- take. As a defence to an account stated, the defendant shewed several payments since the settlement, and also that the plaintiff had rppliod for relief under the Insolvent Act 7 Vic. c. 32, and in his schedule of debts sworn to and exhibited before the Master of the B^Us, tho demand in ques- tion was not included, but the plaintiff's clerk stated that the list of debts was made out by him, and that the demand was omitted by mistake. Held, Sufficient to rebut the presumption that would otherwise have arisen that the debt was paid. McDonald v. t'other, 3 Kerr 394. Sheriff's Deed — Regularity of Proceedings. See Sheriff's Deed 2. 8— Sheriff's Deed more than twenty years old. In making title under a Sheriff's deed 190 EVIDENCE. EVIDENCE. moro than twenty years old, where the sale was under a venditioni exponas, and the land had been advertised in the Gaz- ette — Held, in the absence of evidence to the contrary, Ist. That a legal levy had been made under aji./a. 2nd. That no newspaper was published in the county. 3rd. That the other notices required by the Act had been given ; and 4th. That b!i j sale took place during the hours pre- scribed by law. Due v. Ilazen, 3 All. 87. 9— Presumption against defendant, not being called as a witnesa Where the defendant knew all the cir- cuuist^inoes, and might have been called as a witnc^^s to shew the exact quantity of the property in dispute which came to his pus.SGSsion — Held, That it was not a mis-direction to tell the jury they might infer that if the defendant had been call- ed, his evidence would not have benefitted his case, — an inference, though slight, that the whole of the property in dispute came into the defendant's possession is much strengthened 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. Tufts v. Hatlveway, 4 AH. 62. 10— Absence of evidence by defendant. In an action to recover the price of logs, the plaintiff, in order to prove the quan- tity received by the defendant, shewed the average size and number of logs put in and driven down a stream, at the mouth of which defendant had a saw-mill, and that the defendant had sawn a por- tion of them. Held, in the absence of any evidence by the. defendant of the quantity he had sawn, That the jury were justified in presuming he had re- ceived the whole quantity driven down the stream by the plaintiff. Leslio. v. Ilamon, 1 Ifan. 263. 11— Conduct of party— Implied recog- nition. A recognition may be implied froni 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 con- tinues to deal with the plaintiff on the security of them. Ilutchinson v. John- ston, 4 All. 40. 12— Bight of way— Presumption of deed. To sustain a plea of righ^ 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 uninterrupted usage of a way exer- cised as a matter of right, and necessary to the convenient enjoyment of the land to and from which the road leads. Jonn V. Jones, 2 Kerr 265. 13— Master and servant- Payment of passage money from travellers. No presumption that same was paid over in ordinary course of employment without proof that such was course of dealiu». See Rue v. McBcath, 3 Kerr 446 14— Issue of Writ. In the absence of evidence of the actual time of issuing a writ of mesne process, it will be presumed to have issued on the day it bears date. Pomeres v. Provin- cial Ins Co., mi. T. 1873. Doubt raised by Evidence — Presumption that notfc was given in accordance with agreement set out in declaration. See Pleading I. 26. No Administration Bond — PrcsunijptioD that no administration granted. See Ex- ecutors and Administrators IV. 1. Attorney — Authority \o issue Execution. See Attorney V. 4. Be-survey of Lumber, presumed to be made according to Act. See Rankin v. Kmery, Ber. 330. Unlawful Act — Knowledge — Master and Owner of Ship. See Principal and Agent. 22. Letters Patent — Proper issue of. See Cor- poration 6. Publications in newspaper — Authority. See Joint Stock Company 3. Commission to examine witnesses — Pre- sumption as to. See Infra IX. 2. Presumption that Payee had given notice of dishonour of bill. See Biils and Notes IV. 2. VII. Secondary Evidence — Notice to Produce. 1— Oertiflud copy of WilL Semble, That a certified copy of a will cannot bo given in evidence under the 1 Rev. Stat. c. 112. Connell v. Ualeif, 4 All. 636. a-WilL Secondary evidence of a will devising real EVIDENCE. EVIDENCE. 191 estate in this Province, the original will being filed in the office of the Hurrogatc General of Nova Scotia, is not admissible, there being no evidence of any law of Nova Scotia prohibiting the removal of the will. Doe d. Gilmour v. Whitney, Ber. 339. 8— Lioense to sell Land— Copy. A license by the Governor in Council to an administrator to sell land, granted un- der the Act 26 Geo. 3, c. 11, need not be under seal ; and it may be proved by a copy from the records of Uie Council, certified by the Clerk of the Executive Council, under the Act 21 Vic. c. 3, s. 7. Camjhei/ v. Jnman, Mich. T. 1862. 4— Inventory— Examined copy. An examined copy of an inventory, filed by the administrator in the Registry of the Court of Probates, pursuant to the Act of Assembly 3 Vic. c. 61, is admis- sible in evidence, and the original need not be produced. Cunliffe v. Morehouse, i Kerr 'in. 6- Affidavit— Exemplification. Id an action for a malicious arrest upon a bailable capais issued out of this Court, the aflidavit upon which the writ issued having been filed, may be proved by an exemplification under the seal of the Court; and proof of the defendant's signature to the original affidavit is not necessary, if it appears that the arrest was made by his procurement. Went- worth V. Hallett, 2 Kerr 560. 6-Surrogate'8 book— Private entry. An entry of the grant of administration in a book kept by a Surrogate, which is stated to be a private book, is only second- ary evidence, and therefore not admissible without proof of search for the letters of administration. Doey. Read, 1 All. 31. 7-Judge's notes. The Judge's notes of the testimony of a witness since deceased, are evidence in a subsequent trial of the same cause to prove that witness's testimony, though the second trial is before a different Judge. Doe v. Murray, 1 All. 216. 8— The evidence of a witness who has left the Province since a former trial between the parties, may bo read from the Judge's notes. Abel v. Light, Trin. T. 1866. 9— Kotice to produce- Time— Becord improperly held. In an action of replevin, both parties filed Nisi Prius records. The cause was tried on the defendant's record, and the plain* tiff obtained a verdict. The Clerk of tho Circuits, by mistake, indorsed the postea on the record filed by the plaintiff, and gave it to his attorney : the defendant's attorney afterwards got the other Nisi Prius record. In an action of assumpsit afterwards brought by the defendant in the replevin suit against the plaintiff, it became necessary, in order to admit from the Judge's notes, tho testimony of a witness examined in the replevin suit, to prove that trial : notice to produce tho A/, i' Prius record which had been given by tl.o Clerk to the defendant's attorney (the plaintiff's attorney in the present actljn) was served on him about seven o'clock in the evening previous to the trial, but he, objecting that the notice was too short, refused to produce it. Held, in the absence of any affidavit from the attorney explaining why be 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 to use more than ordinary exertions to return it to the Clerk. Abel v. Light, Trin. T. 1866. 10 — Queere, Whether a copy of a notice from the plaintiff to defendant, complain- ing of delay in furnishing certain materials for a building, was admissible in evidence without a notice to produce. JSmall v. McVullovgh, 3 All. 484. 11 — Seinble, That a notice to produce "all papers, memoranda, receipts and accounts settled relating to this suit," is not suffi- cient to let in secondary evidence of an unsettled account. See Rose v. Lindsay, 3 Kerr 645. 12— Entries transcribed— Contents of LogSt Logs were measured as they were sawed in a mill, and their contents marked on a board by the persons who sawed them. At the end of each week, the figures on the board were transcribed into a book by a person who had made a part of the measurements, but who could not tell, from the character of the figures on tho board, what portion of them was made by either of the other parties. Held, That the book was not evidence to prove the the quantity of logs sawn, without calling all the persons who had measured tho logs. Leslie V. Hanson, 1 Han. 263. 192 EVIDFNCE. EVIDENCE. 18— Fannent under written agreement —Production ot agreement neoes- aaiy. One item in an account of money paid by the plaintiff for the defendant, appeared on croBs-exauiination to have been paid under a written agreement by the defen- dant to deliver goods to the plaintiff. Held, That without production of the agreement the plaintiff could not recover on this item. Harley v. Good/clloio, 1 Han. 335. 14— LoBB of document- Proof of— Suf- ficiency— Question for Judge. The sufficiency of preliminary proof of the loss uf a docunieut to entitle second- ary evidence to be received, is a question for the Judge at the trial to determine. Gilbert V. Campbell, 1 Ilan. 471. 15— Necessary search. Where a person is in the habit of pre- serving and filing away letters of import- ance, secondary evidence of the contents of a letter of that description 'is not admissible without Hcarch among hi,s letters, there being no proof of its loss. Little V. Johmton, 1 Kerr 496. 16— Lost paper. Where an agreement for a right of way had been made ten or twelve years before the trial, and the road laid out and used in pursuance of it, secondary evidence of the contents of the agreement was re- ceived, it appearing by the testimony of the person in whose pos-session it was left, that he had searched thoroughly for it, and was sure it was not in his posses- sion, that he might have burnt it as a useless paper, or given it to one of the parties, but had no distinct recollection of what he had done with it, and it was just as probable he had burnt it, as that he had given it to one of the parties. Basterach v. Atkinwn, 2 All. 439. 17— Search for note. Slight evidence of search for a note which has been paid and taken up by the maker, is sufficient to account for its non-produc- tion, and to admit secondary evidence of it. Lyman v. Vain, 3 All. 259. 18— Certified copy of deed— Affidavit. An affidavit made by an attorney, that the lessor of the plaintiff resides in Hali- fax, N. S., had never been in this Pro- vince, had not the deed in his possession, and did not know where it was to be found, is not sufficient to entitle a certified copy of the deed to be given in evidence under 1 Rev. Stat. o. 112, s 12. Fisher, J., dinsentiente. Doe ex dem Trider v. Mcintosh, I Ifuu. 502. 10— Document partly destroyed— Con< tents. If part of an original document be lost or accidentally destroyed, the part which is preserved may be admitted in evidence and secondary evidence given of the re- mainder. Doe V Jack, 1 All. 476. When a person has made extracts frooi a paper, ho may, aft.>r the loss of the origi- nal, refresh his memory by reference to such extracts ; and where other secondary evidence is produced of the whole instru- ment, a witness may speak to the contuntit of a part which he has abstracted, al- though he has not seen or does not recol- lect the remainder. Jbiil. 20— Certified copy of grant. A certified copy of a grant under the Act 3 Vic. c. 65, is admissible in evidence without accounting for the non-production of the original. Doe v. McDonald, 1 All. 673. 21— Former testimony of witness- Proof of. Where the plaintiff has been examined as a witness on a former trial respecting the same subject, it is necessary, in order to prove his testimony, that the witnesses should swear to the words used by hint, and not merely to the effect of them. Ffuscr V. Black, 2 All. 312. (See lufni, VIII. 17.) 22— Absence of attesting witness- Handwriting. Whether duo diligence has been used td discover an attesting witness must depend upon the circuuistanccs of each case. Vranc v. Ay re, 2 All. 577. Where the attesting witness to a bond left the plaintiff's employment in the country fiftoen years before the trial and went to Saint John, and about two years after- wards told two persons of his acquaintance in the country that he was going to Aus- tralia, after which neither of them had ever seen him, though one of them bad resided in Saint John for three years afterwards, and the other was there fre- quently, and there was no proof that the witness had been in the Province for thirteen years. Held, Sufficient pre- sumptive proof of his absence to admit secondary evidence of his handwritiug Ibid. EVIDENCE. EVIDENCE. 198 as— meotment— Title under agreement — ^roduotion neooMary. Where a plaintiff in ejectment prores no documentary or posBessory title, out relics upon the eBtoppel arising from his having let the defendant into possession of the land, and it appears in the plaintiff's case thut the defendant took possession under n written agreement ; the plaintiff cannot recover without producing the agreement, or giving secondary evidence of it after notice to produce. Doe v. Blanche, 3 AH. 180. Statement of affairs by debtor to creditor — Copy made in presence of debtor. See Supra I. 12. Lease — Duplicate originals — Primary evi- dence. See Evidence III. 5. VIII. Examination of Witmessis on Trial. 1-Bebuttal of testimony. A witness for the plaintiff denied on cross examination having made a statement in presence of L., who was afterwards called, by the defendant, and contradicted him. Held, That the plaintiff might call evi- dence in reply to rebut L.'s testimony and confirm that of his own witness; such evidence not being properly part of the plaintiff's case in the first instance. Whelplcy V. RUey, 2 AU. 275. 2 — ^The defendants in trespass justified en- tering, under the Act 13 Vic. o. 4, as (Jomuiissioners of Highways to lay out a road through the land, and proved a re- turn of the road sufficient upon its face. Held, That evidence of excess in laying out the road wider than the law allowed, must be given as part of the plaintiff's original case, and was not admissible as rebutting evidence. Downing v. Gault, 2 AU. 569. Quxre, Whether evidence of a person not present at the laying out, but who after wards examined marks on the trees where the road was laid out, is admissible to prove excess ? Ibid. 3-Calling Witnesaes in reply— Sur> prise. Plaintiff and defendant owned adjoining lots in the city of St. John, and the ques- tion was, whether a cellar wall running at right angles with the street on which the lots fronted, was wholly within the bounds of the plaintiff's or the defendant's lot, — the breadth of the wall being the 25 land in dispute. The defendant's witness was asked on cross examination, whether after a fire which burnt the houses on both lots, B., under whon^ '^he defendant claimed, had not employea F. to remove a stone wall adjoining that in dispute. Held, That the Judge was right in allow- ing the 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 now trial. Adanu v. Ferguton, 4 Att. 102. 4 — Where a witness on cross examination, denied having signed a paper, but which was not then shown to him, and the op- posite party afterwards produced the paper, and gave evidence to prove the wit- ness's signature to it, the witness may be re-called to disprove the signature. — Tompkins v. Tibbitt, 1 Han. 317. 6— Be-ezamination of witneae as to statements concerning matter involving penaltv. Where a witness called to prove that the consideration of a note was nsnrions, de- clined to state what amount he gave on discounting the note, because his answer might render him liable to a penalty, but on cross examination said that he gave what he thought it was worth. Held, That he was bound on re-examination to state what he gave. Peteri v. Irith, 4 AU. 326. 6— Proving justification on cross exa- mination of plaintiff's witnesses. The defendant has not a right on the cross examination of the plaintiff's wit- ness, and before the defence is open, to prove a j ustification of which he has given notice, and the affirmative of which lies on him ; no question leading to it having been asked on the examination in chief Atkinson v. Smith, 4 All. 309. 7— Payment— Set-off. A defendant cannot prove his set-off in plaintiff's case, but a payment rests on a different footing, and in the absence of any evidence of appropriation, the law will prima facie apply it to the payment of outstanding indebtedness ; and a defend- ant has a right to shew payment on cross examination of plaintiff's witnesses. — Fredericton Boom Co. v. McPhenon, 2 Han. 9. 8— Paper not in evidence. Though as a general rule (except by legislative enactment) a witness oannof wmmmmmm IH EVIDENCE. EVIDENCE. be examined as to the contents of a paper not in evidence, it does not necessarily follow that this is a sufficient ground for setting aside a verdict, where the paper is ailerwarda put in evidence and the opposite party has an opportunity of ex- amining upon it, and it has been allowed to go before the jury— ^no injustice ap- pearing to have resulted from the evi- dence. Lawtonv. Tarratt,-k All. 1. 9— SUse imprisonment — Polioeman making arrest— Asking question as to whose direction arrest made. Defendant lost a cow, which he suspected to have been stolen by the plaintiff; he reported the facts to the Chief of the Police, who told him, in the presence of a policeman, that he had better arrest the plaintiff. He then went to the plaintiff's shop with the policeman, and directed him to take the plaintiff in charge, and the policeman arrested the plaintiff and detained him several hours, when the cow was found, having strayed from the defendant's field. In an action for false imprisonment, the policeman stated, in answer to a question from the plaintiff's counsel, that he would not have arrested the plaintiff without the direction from the defendant. Held, That the question was proper. Quare, Whether the de- fendant's counsel had a right to ask the Eoliceman on cross-examination, whether e did not make the arrest, in oonse- quenee of the direction from the Chief of tne Police. Though the evidence was improperly rejected, it is no ground for a new trial, aa the defendant, being a tres- pasaer, by directing the arrest, the verdict must have been in favor of the plaintiff. Foleg V. Tucker, 1 Han. 62. IGKDisorotion of Judge— Contents of written statement. It is discretionary with the JuJgo at NUi Prfiu, under the power given by the Act 19 Vic. c. 41, B. lb, whether ho will allow a witness to bo cross-cxauiincd as to the contents of written statemouta made by him, without the Writing being produced. Lawton v. Chance, 4 AH. 411. ll->>-It is disoretionary with a Judge at JViVt Prim to receive evidence at any time during the trial. Stiles v. Jirew$Ur, 4 All. 414. (See Now Trial HI. 3B.) 12 — May admit ovidonoo even after the oounsol has addressed the jury, and the Court will not interfere if the evidence is not in itself inadmissible, or no injustice has been done. Doe v. Connelly, 3 All. 337. Recalling Witness — Discretionary with Judge. See County Court 4. 12 a— IiiTery of seisin- Evidence after dose of Case. A deed was put in evidence without ob- jection as a registered deed, but was after- wards discovered not to have been duly acknowledged, whereupon the defendant's counsel objected, in his address to the jury, that it did not give livery of seisin. Semble, That the objection was not too late ; but that in such a case the Judge might allow the opposite party to ^.\e evidence of livery of seisin. Scribner v. McLamhlan, 1 All. 379. 13— Withdrawing Evidence. It is discretionary with the Judge ut the trial to allow the counsel to withdraw evidence. (Per Ritchie, C. J., where evi- dence is pressed in against the opinioa of the Judge, the counsel must stand by it.) Pelton T. Temple, 1 Han. 2'25. \ 14— Scientific Witness. A scientific witness cannot be asked ques- tions, the answers to which are based upon previous evidence ^iven by other witnesses, and upon which conclusions are drawn which are for the jury to de- termine. See Key v. Thomson, 2 Han. 224. 16— Party to suit— Hostile witness. Where one of the parties to a suit is called as a witness by the other, it i.s discretionary with the Judge to allov him to be examined as a hostile witness, and to restrict his own counsel to the stylo of an examination in chief Tho opposite party on tho record is not neces- sarily a Hostile witness, his conduct on tho stand is the proper tost. Atkintony. Atkinson, East. T. 1862. 16— Diffbrent statement — Proof of- Tender of evidence- Time. It is not competent to prove on the cross- examination of a witness, that ho has made u different statement relative to tho subject matter of tho suit in his oxauii- uatiou in bankruptcy in Kugbnd, without Eroducing the original proceedings in ankruptcy. Campbell v. Gilbert, Mlth. T. 18(52. If, for the purpose of affecting thu credi- bility of a witness (a proper foundation having been laid) nud shewing; thnt ho EVIDENCE. EVIDENCE. IW had mado a different statement on a former ocooaion. Qusere, Whether a duly certified copy of hia examination in bankruptcy would not be evidence ? If 80, the evidence should have been dis- tiuctly tendered after the cl(>8e of the case in which the evidence sought to be contradicted was given. Campbell v. f^rhert, Mich. T. 1862. 17— Diaorediting Witneas— Statements on former trial— Proof of. A plaintiff examined as a witness in his own cause may be asked on cross exami- nation for the purpose of discrediting him, whether, in giving his evidence on a for- mer trial relating to the same matter, he had not mado certain statements respect- ing it without proving by the record that a former trial took place. And where he deuiod making the statements, a person who heard his evidence on the tbrmer trial, and took it down in writing, so far as he was able, may be called to contra- dict him, if ho can speak positively as to the statements denied by the plaintiff, though ho did not take down the whole of his evidenre. (See >fo. 21.) Brjfwn V. Hamilton, East. T. 1873. 18— Party produoing Papers ezumnation. Papers proved on cross-examination are to bo treated as the evidence of the party producing thom. Crane v. Clarke, JUL T. 1828. 18-BeoaUing Witnesa. Whore (m the trial of an action against ono of the sureties in a bond given by a Deputy Treasurer, the Tr"' "ure'r was ex- amined us a witness on tbe part of the Crown, and on cross-examination, proved a number of letters written by him to the Deputy,— partly relating to official busi- uciis, and partly to private transactions and land spooulations in which they hud bouu enga^»d, and had suffered losses, — from whiolk it was intended to bo argued by the defendant that moneys received by t'.io Treasurer from tko Deputy and car- ried to his private account, wore in fact Crown moneys, und should have been so credited; and those letters wore after- wards put in evidence by the defoudont. Hold, That the Treasurer might be re- culled by the Crown, atler the close of the dofeudaut's case, to explain the transuo- tiun, aud to prove that all moneys remit- ted by th9 Deputy on aocount of the on oroBs- revenue, were duly credited. Regina t. Kerr, 2 Kerr 137. 20 — Where a witness on cross-examination proves documents for the defendant, it must in general be subject to the implied condition that the witness may be re- called by the opposite party after the doc- uments are in evidence. Ibid. 21— Second trial— Testimony— Particu- larity. Where tne plaintiff has been examined as a witness on a former trial respecting the same subject, it is necessary, iu order to prove his testimony, that thie witness should swear to the words used by him, and not merely to the effect of them. Fraser v. Black, 2 AU. 312. (See No. 17.) 22— Examination as to matters in writing- -Partnership. Where, on the cross-examination of plain- tiff, the defendant's counsel examined him as to the time he entered into a partnership, and his interest in it, the plaintiff was held to be entitled to go into the contents of the whole agreement, although it appeared there were written articles. Tozer v. Hutchinson, 1 Han. 540. 23— Privileged communication. The rule of evidence that a communica- tion respecting a suit between the agent of the client and his attorney is privi- leged, is not altered by the ^ct 19 Vie. 0. 41, s. 1, allowing the parties to be ex- amined as witnesses. Latcton v. Chance, 4 All, 411. 2A— Defendant's witness— Oontradiot- ing by plaintiff— Oonflrming Slainttff*s case, ence 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 cnse. The time at which ev]- denoo is odmiasiblo is in the disoration of the Judge. Heavu v. Odell, EaH, T, 1863. 26— Counsel. Where a counsel in a cause is by ooasent allowed to go upon the stand to prove a particular fuct, he bouomus » witness in the cause generally, and may be eross- examiued upon any fact in the cause. Gilbert v. Campbell, 2 Han. 5&. 26— Lease— Production necessary. In an action of trespass for cutting down a mill-dam, the plaintiff rolled on, and 196 EVIDENCE. EVIDENCE. gave evidence of possession only. On cross-examination, he admitted that he held the property under a written lease from G., and stated that he was bound by the lease to ke»p the premises in re- pair. Held, That the plaintiff was bound to produce the lease, to enable the Judge properly to direct the jury as to the effect of it, and as to the amount of damages which the plaintiff, as tenant, would bo entitled to recover. Bettt v. Venninff, mi. T. 1873. 27— Examination of defendant— Re- calling. 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 wit- ness; 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. (SeoNewTriallV.il.) Defendant's Counsel cross-examining on matter — Objection made at opening of case. Sec New Trial II. 15. IX. Commission — Interrouatokies — Depo- sition. 1— Depoaition taken abroad — Pre- sumption that oath rightly taken. Depositions taken abroad under a Com- mission issued pursuant to the Act Wm. 4, c. 34, and returned with the commis- sion, are admissible in evidence without proof that the commissioners had taken the oath prescribed by tho commission, or return by thorn to that effect. Such oath is required to be taken, but the Court will presume that this has been dono, no- thing appearing to tho contrary. Wil- mot v. Jlaws, 1 Kerr 351. 8— Papers, annexing of— Commission. Papers enclosed and returned with a com- mission to examine witnesses, and refer- red to by tho witnesses, need not be an- nexed to tho depositions, if sufficiently identified. It will be presumed that a commission produced in Court is in tho same state as it came from tho Commis- sioners, and that the exhibits enclosed are those referred to in tho depositions. Lawton v. TarraU, 4 All. 1. 8 — As a general rule, where evidence is taken under a commission, and dooumonto are proved, such documents should be returned enclosed with the commission. There may be exceptions where the docn- uient cannot by law be removed from its place of custody ; in such case, an office copy, or an examined copy, should be re- turned with the commission. Thompgon V. Reed, Hil. T. 1861. 4 — If there is clear evidence to identify pa- pers as those referred to in the deposi- tions taken by the Commissioners, they may be received in evidence, though not returned with the depositions. Ibid. 5 — The mere proof of the handwriting of one of the Commissioners upon a papor purporting to have been referred to in the depositions, is not sufficient evidence of identity. Ibid. 6— Second commission to examine ^ same witness. Where a commission to examine a witness abroad has been executed and returned, another commission to examine the same witness on matters not gone into on the first commission, can only be granted under very peculiar circumstances, and the necessity of it must be clearly shewn by affidavit. The second oommissioa should be limited in its terms. Liijht t. Abel, East. T. 1865. 7— Addressing to Ctourt— Suffloienoy. The depositions of a witness taken ik bene esse under tho Act 5 Wm. 4, c. 34, sealed up and indorsed " in the Supreme Court," with the title of the cause, tho date and the Commissioner's name arc sufficiently addressed to the Court within the meaning of the Act, to be receivable in evidence. Waterhouse v. Marine At- surance Company, 3 Kerr 639. 8— Commission addressed to several- Bxecution by part— 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, did not attend, and tho commis- sion was executed by the other throe, in the absence of any protest at tho time, or suggestion that defendant had been in- jured by its execution by three only, iind where no had an opportunity of applying at term to suppress the depositions, the Court held that the objection was waived, and it was too late to object to their reception in ovidenoo at the trial. Gil- bert V. Campbell, 1 Han. 471. EVIDENCE. EVIDENCE. 197 9— Wrong entitling— Misnomer. A commission issued out of the Supreme Court of this Province for the examina- tion of a witness in Ireland, in which the plaintiffs were named " Hugh James and Heatley W. his wife," the depositions re- turned with the commission were entitled " In the Supreme Court, Nova Scotia," nod the plaintiff's wife was called " Hea- tley Ann" in the title of the cause. — Held, That the depositions could not be received in evidence. Doe dem Jarnet v. McLauchfin, Mich. T. 1861. X. Admission from PmaoinvI. 1— Admission by Plaintiff's Counsel. Plaintiff may avail himself of a fact which in admitted by the plaintiff in his open- ing, and made part of the plaintiff's case, although as the pleadings stood the de- fendant could not have given evidence of such fact. Wallacfi v. Vernon, 1 Kerr 6. 2-DifEl9rent Pleas. Semblc, An admission ou one pica does not quality the issue joined on another distinct plea, nor affect the recovery on the latter issue. KInnear v. Gallagher, 1 Kerr 424. 3— Reference to description of lot in declaration— Plea— Plan. Description of lots in plan of city of St. John, plea not guilty in so far as relates to the said close described by number, and as mentioned in declaration in speci- fic count. Hold, That the reference in plea to the said closo beiu,i>^ specific and plain, the plea incorporated the descrip- tion as far as it related to the lot in ques- tion, and was an admission of tho identity of tho lot on the face of tho plea; that further proof was unnecessary, and that reference to plan was surplusage. Mcr- ritl v. Voxeter, 2 Kerr 385. See Trespass II. 19, saine case. 4-InteBtate'B goods— Alleviation. An nllogation in the assignment of a breach, that goods and chattels came to tho hands of tho defendant as administra- tor, necessarily shows that they were tho goods of the intestate, Sherlock v. Mc- Gee, 1 All. 346. 6~Bxeoution of Lease. In an action against the assignee of a lease uiade by the plaintiff to A., tho defendant pleaded that it was not the deed of A. Hold, That the ozooution of tho loaso by the plaintiff was admitted by the plead- ings. Neio Brunswick and Nova Scotia Land Co. v. Kirk, 1 All. 443. 6 — Replevin — Replication, property in plaintiff — Plea admitting property in custody of law. See Pleading II. 30. 7 — Corporation sued as such — Appearing and pleading — Estopped from disputing existence as body corporate. See Estop- pel I. 4. 8— Demurrer— Plea— Leave to amend. Where a cause has been set down for ar- gument on demurrer to a plea, and tho defendant obtains leave to amend on payment of costs, he thereby admits the plea is bad. See Howe v. Carson, 3 Kerr 111. 0— Payment of money into Court. Payment of money into Court generally, in a declaration containing a count on a promissory note, and the common counts does not prevent the defendant from dis- puting the consideration of the note. JUcCann v. Riletf, 3 All. 154. 10 — Payment of money into Court in an action of indehetatus assumpsit, only ad- mits a cause of action to the amount paid, but has no other effect. Anderson v. Allison, 3 All. 173. 11 — In indebitatus nxsumpsit on the sum- mary side of the Court, for goods sold and delivered, and for the hire of a warp and buoy rope, the particulars to the writ were £10 for a warp sold, and £2 for tho hiro of an anchor and rope ; the defend- ant paid £'i into Court generally, and the only contract proved on the trial was one for the hire of a warp. On verdict for tho plaintiff for £7, and rule nisi to sot it aside — Held, That tho payment of money into Court only amounted to an admission that the defendant was liable in respect to some contract to the amount of the money so paid in ; and that it was incuuibont on tho plaintiff to shew not only that a larger sum was duo, but that a contract existed in respect of which tho defendant was liable beyond the amount HO paid into Court, and that tho case was not altered by tho Act of Assomblv 4 Wm. 4, c. 41, s. 2, relating to particulars in summary actions, and a now trial was accordingly granted. Taylor v. Barker, 3 Kerr 014. 12 — Tho declaration stated that the defend- ant wos indebted to tho plaintiff in XIOOO .fu* ■ft li'i '.'} h'ih I 'II '■'■lA jPk 188 EVIDENCE. EVIDENCE. for salvage of " a certain ship," by the plaintiff's vessel before then saved, and delivered to the defendant; and in the farther sum of £1000, for work and labor of the plaintiff, done and performed with his steamer in and about the defendant's business, and at his request; there was also a common count for work and labor. The defendant paid £lb 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 specifically for salvage of any particular ship, but applied to more than one transaction. Where a specific contract is declared on, payment of money into Court admits that con- tract; but where a contract is set out which may apply to more than one trans- action, payment only admits a contract to the extent of the amount paid. Walker V. Fendleton, Mich. T. 1862. Offer to confess judgment. See Judgment II. 4. XI. Miscellaneous. 1— Authority of Officer -Froof-Affida- Tit on Sheriff's Deed by Deputy. Where the affidavit indorsed on a Sherifi 's deed of land E>old under execution, as to the regularity of the proceedings, pursu- ant to the Act 4 Wm. 4, c. 22, appears to have been made by the Deputy Sheriff — Held, That the authority of such Deputy may be proved by evidence of his acting in that capacity, although his appoint- ment was under a written deputation, which is not produced. Doe d. Barlow v. Hatfield, 1 Kerr 417. 2 — Surveyor General — Notice signed in of- ficial characlor — Authority. See Crown Grant I. 18. 3 — Assignment of Mortgage by an Execu- tor is not aduiissiblo in evidence without proof of Probate. See Doe v. IJanson, 3 All. 427. 4 — Consideration — Evideaco to explain. See Consideration 8. 5— Objection after admitision of evi- dence. A deed was put in evidence without ob- jection as a registered deed, but was aflor- wards discovered nut to have been duly acknowledged, whereupon the defendant's counsel objected in his address to the jury, that it did not give livery of seisin. Semble, That the objection was not too late; but that in such case the Judge might allow the opposite party to give evidence of livery of seisin. Scribner v. McLawjhlin, 1 All. 379. 6— Tender of Evidence. The expression of wrong opinion of Judge on effect of evidence offered, upon which counsel withdraws it, is not a ground for new trial, the evidence should be dis- tinctly tendered. Ruel v. McElrov^ 3 All. 212. 7 — Evidence offered to show a statement made by a deceased witness in giving evidence on a former trial in the hearin); of plaintiff in the present suit, rejected, Quxre, Whether other evidence than np. pears on Judge's notes could be given ; if it could, it should be distinctly teuder- ed on that ground. Frescott v. Walton, 2 Han. 230. 8 — Evidence rejected at u certain stage of cause, but nut absulutely, and not again tendered, is no ground for new . trial. Tufts v. Hathcwuj/, 4 All. 62. 9 — When evidence is tendered, the Judge has a right to ask the particular purpose for which it is oftercd, and if the counsel refuses to state it, he may reject it. AVy v. 2'homBon, 1 Han. 297. 10 — Judge admitting evidence at any time during trial. See Supra VIII. 11. 11— Improper admission of evidence- Withdrawal. Though improper evidence of damage has been given, if it has been expressly with- drawn by the Judge from the considera- tion of the jury, and by subsequent evidence in the cause, it becomes imma- terial; the Court will not disturb the verdict on the ground of its improper admission. Spnrr v. Albert Mintnn Co., East. y. 1871. I2~Surveyor— Beferenoe to plan— Lou of field notes. A surveyor who had made a survej of land by direction of the Government, may refer to a plan of it made by himself shortly ailer the survey filed in the Crown Land ofiico, and upon which survey a grunt of the land issued, for the purpose of enabling him to state the courses and distances whi'^' .le run, his field notes uf the survey having been lost. Niki t, Burkn, Hil. T. 1873. EVIDENCE. EVIDENCE. 199 IS—DebitB and credits— Aooount oon- taining. One side only of an account containing debits and credits cannot be given in evidence; bat it is competent for the party to whom the account has been rendered, to put it in evidence and dis- prove the debits. Palmer v. Gilbert, 1 All. 505. 14 — Promissory Note — Evidence under Common Counts. See Bills and Notes VI. 12. See Assumpsit III. a 15 — Feigned Issue — Elvidence under. See Practice XII. 16— Handwriting— Proof of— Compari- son. The defendant's signature to a disputed note was proved on a former trial by com- paring it with the signature to u bond which he had signed. The witness who proved this, had since died, and on the second trial his testimony was read from the Judge's notes, and evidence given of the defendant's signature to the note in dispute, by comparing it witL .l.j signa- ture to a bond shewn to the witness. Held, That without proof to identify this as the bond proved at the first trial, or that the defendant's signature was genu- ine, the evidence was improperly admit- ted. Palmer v. Wilbur, 3 All. 443. 17 — A witness who once had in his posscs- sion, a promissory not« acknowledged by the defendant to have boon signed by him, is competent to prove the defend- ant's handwriting, though his only means of the knowledge of it is the signature to the note formerly in his possession. Pet- terton v. Oillis, Eatt. T. 1831. 18— OnuB probandi— Timber cut with- out uoense- Grown land. Where timber is seized by tho Crown as being liable to forfeiture under the Acts of Parliament 8 Geo. 1, c. 12, .^nd 2 Geo. 2, 0. 36, fbr being cut without license, and is claimed on the ground that it was not cut on the property of the Crown ; the , and might avail himself of such a defence under the general issue. Fitzsimmons v. .' nes, 3 ^crr 596. 7 -Ordering Writ to be filed. Where an action was pending against an attorney for imprisoning the plaintiff on an irregular execution, which was wanted as evidence on the trial, the Court order- ed the attorney to file the writ in the Clerk's office. Roberts v. Watson, 1 All. 94. 8— Impeaching sale at trial for irregu- larity or execution. The valiaity of a sale under an execution cannot be impeached on a trial at Niti Prius, on the grounil that the execution is irregular for having issued on a judg- ment more than a year old without a scire facias. Doe v. Watson, 1 All. 675. Variance in recital of J udgment. See Va- riance. Sale by Sheriff under an alias the original execution need not be proved. See She- riff's Deed 6. 9— Justice of the Peace- Sufiloienoy of execution issued by. An execution issued by a Justice of the Peace is sufficient, if it substantially fol- lows the form K in the Schedule to the Rev. Stat. c. 137 ; and any person resist- ing a constable executing it, is liable to an indictment. It is sufficient if the ex- ecution is made returnable in a certain number of days from the date, so that it may be ascertained by calculation. Reg. V. McDonald, 4 All. 440. 10— Alias Writ— Excessive amount- Arrest. If an execution issues upon a judguieut in a Justice's Court within the time Ib- ited by the 1 Rev. Stat. c. 137, s. 38, ud alias or plurias may afUrwards iwu«, EXECUTION. EXECUTION. 207 though more than three years have elaps- ed since the judgment. Setnble, That ac execution issued by a Justice of the Peace for more than the amount of the judgment, is irregular only, and the mere arrest ot the defendant under it, is not necessarily a wrong ; but otherwise, if he is imprisoned under it for a greater num- ber of days than is allowed by law ao- cording to the sum actually due. Rjfan V. James, East. T. 1872. 11— Execution for leaser amount than judgment— Tender— Beftual— Im- prisonment. Defendant recovered judgment against the plaintiff in a Justice's Court for £3 7s.} the execution issued stated the amount to ^ e thirtjf-teven ihillings, which gum the plaintiff tendered to the defen- dant, who refused to receive it. Held, That the execution was not a nullity, and that trespass would not lie against the defendant and the constable for imprison- ing the plaintiff on the execution after the tender of the thirty-seven shillings. Carman v. Wilson, Trin. T. 1864. 12— Debtor pointing out property to Constable— Duty to seise it. Where the debtor points out property to the constable to levy on it, it his duty to seize it, unless he has reasonable grounds for believing that it does not belong to the debtor. Hunter v. Maddox, 1 IJan. 162. 13— Direction of execution to any Constable. The Act 22 Vic. c. 27, authorising Con- stables to serve processes in any part of the County in which they are appointed, an execution issued out of a Justice's Court, under 1 Bev. Stat. o. 137, may be directed to any Constable of the County. The deviation from the form prescribed by cap. 137, does not affect the substance of the execution. Atkinson v. Desmond, Trin. T. 1863. 14— Property liable to seinure— Inter- est in Logs. Plaintiff obtained a license to cut logs, and agreed with A. to cut and haul the logs, put the plaintiff's mark on them nnd take them to the mouth of the Oromocto for him ; plaintiff to furnish the supplies, pay the wages, and sell the logs at Saint John; and after deducting stumpage, freight, supplies, etc., pay A. any balance that might remain. Held, That A. had no interest in the logs that could bo seized under execution. Pelton t. Temple, 1 Han. 275. 15— Husband and Wife— Sepcurate pro- perty. Land was conveyed to a married woman, for life, for her separate use ; it was man- aged under her directions, and the labor Euid for by the produce of the land, the usband not interfering except as her agent. Held, 1st. That under the Rev. Stat. c. 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 ac- tion for seizing the crop, under execution against the husband, was rightly brought in the name of the husband and wife. Dow and viife v. Dibblee, 1 Hau. 55. 16 — When a husband and wife reside un land of which the wife has the fee, the husband is tenant by the courtesy, and the crops raised by his labor and the labor of his servants and children, are his and liable to seizure ibr his debts, and the Sheriff may enter to make a levy. In the absence of title, the possession is the possession of the husband. Pourrier and Wife V. Raymond, 1 Han. 512. 17 — Real estate, in remainder or reversion, may be taken in execution, and sold at Sheriff's sale, under the Act 26 Geo. 3, c. 12. See Doe v. Hazen, 3 All. 87. Estate of Mortgagee in fee, not liable. See Supra I. 3. 18— Beal estate of testator. 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 Parliament 5 Geo. 2, c. 7- or the Act of Assembly 26 Geo. 3, c. 12. Real estate descends to the heir. License to sell requisite before divested. Doe dem Hare v. McCaU, C. J/s. 90. 19— Improper discharge of debtor by Judge's order— Issuing fi. fa. One of two joint debtors in custody on execution, was improperly discharged by a Judge's order ; the plaintiff's a^rney, without applying to rescind the 'order, issued a fi. fa. Held, That it was not absolutely necessary to rescind the Judge's order before issuing the^./a., and it was allowed to stand — the plaintiff undertak- ing not to issue anotner ca. sa. or take any proceedings against the defendant's sureties in consequence of his discharge. Hogan v. Whitehead, Hil. T. 1871. I '%! 208 EXECUTORS AND ADMINISTRATORS. EXECUTORS AND ADMINISTRA- TORS. I. Actions bt and against. II. Rights and Liabilities. III. ExEouTOK De Son Tort. IV. Administration — Grant of — Proof — Probate. y. Miscellaneous. Actions by and against. 1— Debt for speciflo legacy. A legatee may maintain an action of debt against an executor for a certain legacy given by his testator. Livlngstove v. Powell ct. al., Executors o/ Powell, Btr. 225. (See Action at Law IX. 16.) 2— Suspension of aotion. Actions against executors or administra- tors for the recovery of debts due from the testator or intestate, are not suspend- ed for oightceti months under the Act 3 Vic. c. 61 ; the thirty-fifth section has no such operation. Cunb'ffe v. Morn- hotue, 2 Kerr 311. 3— Set-off— Bond— Penalty. In an action against an administrator on a promissory note given by the intestate, he pleaded plene mlministnivit, and gave notice under the Statute of a bond debt due and outstanding, and no assets ultra Held, That the sum actually due on the bond, and not the penalty, was the amount which the defendant was entitled to set off against the assets in hand. Sherlock V. AfcGee,-2 Kerr 508. 4— Assets not accounted for— Insuffi- ciency to pay— Limitation of recovery. It is competent for a creditor in an action at law against the executor, where the amount of assets is in question, to shew that assets came to his possession for which he has not accounted in '.he Sur- rogate Court ; but where it appears that the executor has assets sufficient to pay a larger dividend thi\;i that alleged in his plea M notice under the Act, but not enough to pay the whole debts, the re- covery will bu limited to the rateable proportion which the creditor is entitled to receive from the assets. Ilarn'son v. Morehoute, 2 Kerr 684. llcproRentativo character — Liability for mo- ney bequeathed — No avornieut of receipt of money. See Pleading I. 25. 6— Administration by two out of three defendants— Small assets in hands of third— Verdict for defendants. In an action against three defendants, as executors, two of whom had fully adniin- istered, and the amount in the hands of the other defendant was very small, the Court refused to set aside the verdict in favor of all the defendants. The plain- tiff might have had a verdict against the defendant shewn to have assets in his hands. Crookshank v. McFarlane, 2 All. 644. 6 — Executor of the assignee of a bail bond may bring an action upon it. Scrtbner v. GMuH, 4 All. 182. 7— Executors appointed by power in will— Bight to sue. 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 oth- ers in their place, so that the same num- ber should always exist. Two of the executors named in the will died, and the survivors appointed two others, whowere sworn as executors, and probate granted to them by the Judge of Probates, atler the original probate granted. Held, That these seven persons could sue as execu- tors. Wn'i/ht V. Stackhouse, Ilil. T. 18G3. 8— Covenant— Breach in life time of testator. Where breach of a covenant for title and the damage resulting therefrom, both oc- curred in the lite time of the testator, the action for such breach should be brought by the executor. See Covenant 13. 9 — If covenant for title is broken in the life time of the covenantee, no estate descends to his heir, and an action for the breach is properly brought by his executor. See Covenant 14. 10— Proving promise. In an action oy an administrator for work and labor of the intestate, and alleging only a protaise to the administrator, the plaintiff must prove the promise as laid, Steventon v. Pcrley, 3 Kerr 398. TI. Rkiiits and Liabilities. 1— Bzeoutors of deceased adminis- trator. The executors of a deceased administrator have no right to file an account of hi!« aduiiniBtration in the Probate Court; nor EXECUTORS AND ADMINISTRATORS. 209 has the Judge of Probates any authority to pass such an account if filed. In re Frost, 1 Han. 127. 2 — An administrator cum testamenlo annexo died without having filed any accounts of his administration. Held, That the Pro- bate Court, on the application of the residuary legatees under the will, had no jurisdiction to pass accounts filed by the executors of the deceased administrator ; that the proper course would be to appoint an administrator de bonis non, cum testa- mcnto annexo, who would bo bound to accouut, and to whom the executor of the dcccasud administrator would be liable in the first instance. In re Frost's estate, Mich. T. 1866. 3— License to sell— No waiver of right to sell by wilL Executors obtai ling license to sell from tho Governor and Council, do not waive any right they have to sell under tho will. Dot tlem Pike v. Tierney, Mil. T. 1831. 4— Claim by administrator— Allowance. A claim of an administrator against tho estate for maintenance of the int«stato may bo included in, and allowed in his account passed by the Probate Court; but tho claim must bo limited to six years. Ex parte Holly, Trin. T. 1863. 5 — Whore the Probate Court allowed the administrator's claim for maintenance for ten years, but during the first four years of that period he had received tho pro- ceeds of tho intestate's farm, the amount of which ho had a right to appropriate towards tho payment of his charge for maintenance, tho Supremo Court, on ap- peal, ordered the dineronco between the two sums to be deducted from tho admin- istrator's account. Ibid. 6— Application of aaaeta to payment of I^ecutor's claim. Where there is no fraud or collusion, an executor may apply tho assets of the tes- tator in pavment of his own debt ; though in cnsc ot a deficiency of assets to pay debts or legacies, tho alienee of the pro- perty (kn'^ing that it belonged to the PHtate) may bo liable in equity to credit- ors or leguU>''s, or tho next of kin. Al- Ungham v. a. Miel, Trin. T. 1871. 7-No right to pay debts in prefer- ence, nor retain. Where the Act 26 Geo. 3, o. 11, b. 18, directing exooutora, whore an estate is 27 promises to Executors 29. insolvent, " to divide it in due proportion to and among the creditors," — it is their duty to pay debts according to the com- mon law priority of classes, and pari passu in each class, and they have no right to pay any one creditor in prefer- ence, nor to retain for the whole of their own debts of the same class. Joseph t. McLeod, Trin. T. 1833. 8— Costs— Inability to. If an executor declares on himself, he is liable for costs. o/ Grosvenor v. Agnew, Ber. 9 — An administrator will not be relieved from his liability to the payment of costs, under Act 7 Wm. 4, c. 14, s. 23, where ho moves, not on matters appearing at tho trial, but upon affidavits which are suffi- ciently answered by the defendant. Sem- ble, The Act extends only to cases in which executors or administrators were before that Act exempted from tho payment of costs. Thompson V. Allanshaw, I A«rr209. 10— Absconding debtor holding property as admiuititratur — Trustees not entitled to. See Absconding Debtor 4. 11— Assigcument of mortgaged land. An executor cannot assign the legal estate in land mortgaged in foe ta his testator, unless the land is devised to him : with- out such devise, his assignment will oper- ate only as a transfer of tho mortgage debt. See Doe v. Hanson, 3 Alt. 427. 12— Deposit of money by two persons —Death of one— Bight of admin- istrator. A sum of money was deposited in a bank, for which a receipt was given in the fol- lowing words : " Keoeived from P. C. and H. C, to be drawn by either of them, or tho survivor, 81400, for which we are accountable with interest, on receiving fiileen days notice." P. C. sent the re- ceipt to the bank, and applied for tho monev, but the Manager not being satis- fied that tho person who brought the re- ooipt had authority to receive the money, declined to pay it. P. C. died three days afler this. Held, That on his death, the right to receive tho money vested in H. C, and that P. C.'s administrators oould not recover it from tho bank. Condon v. Bank of B. N. Amtriva, Trin. T. 1870. 13— Bank Stock undisposed of— Rus- Eension of payment by bank— liability of Bxeoutori. A testator died possessed of bank stock, which his oxcoutors allowed to remain v' I guarantee the above payments to John S. Taylor" (the plaintiff.) Held, That there was a sufficient consideration expressed by reference to the agreement. Taj/lor v. Harris, 2 Kerr 343. Held also, That the whole of the 600,000 feet not having been delivered, and the survey of part of the logs which were delivered not having been made by W. A., the defendant was not liable on hig guarantee. A surety is entitled to a strict performance of the contract which he guarantees, and any deviation made without his assent discharges him. Ibid. 3 — A writing by defendant in the following words : " We guarantee that the woges due W. K. and G. N., from J. H., for making timber shall be satisfied when they bring the timber up, according to their own arrangements," shews a suffi- cient consideration of forbearance by W. K. and G. N. to sue for their wages till the timber was brought up. (Sco Act 23 Vic. c. 31.) Neville v. Joseph, Ilil. T. 1832. 4— The righta of W. K. and G. N. for wages, being separate and distinct — Held, That each might sue separately on the guaran- tee. Ibid. 6 — A guarantee in the following words :— " We hereby guarantee to you the pay- ment of £50, by J. G., in three years from this date," shews a sufficient con- sideration on the face of it. Johnston v. Fraser, Mich. T. 1832. IL Operation op Statute of Frauds, 1 — Where a bill of sale, by way of mortgage of certain cattle, was given by B. to A., which were to be delivered on a future GUARANTEE. GUARDIAN IN SOCAGE. 219 day ill case B. failed in payment of a promissory note, and a written collateral guarantee given by the defendant to A to secure such delivery : Held, That such guarantee not stating the consideration on which the same was made, is invalid under the statute of frauds. Marks v. Scott, 2 Kerr 638. (See Act 23 Vict. c. 31.) 2 — C. was getting timber for defendant under a contract, and being in want of liay, sent a message to him to that effect. Defendant said to the messenger " You can tell C, or any one that will supply him with hay, that I will accept G.'s order payable in the spring." This message was communicated to the pirn tiif, who afterwards supplied C. with h j. Held, in an action for goods sold and de- livered, That the defendant's undertaking was either collateral, to answer for C.'s debt, or an agreement to accept an order from C. tor the value of the hay ; and in either case the plaintiff could not recover. Semble, That it was a guarantee. CoJi- rell V. Hatfield, Trin. T. 1831. III. Construction must be strictly PURSUED. 1 — Where the defendant undertook, in writing, that if the plaintiff would ad- vance to one T. H. C. to the amount of £1000, he would guarantee that T. H. C. paid the plaintiff £500 in the month of July next; and the plaintiff advanced £281, and was ready to advance the re- mainder if T. H. C. would have received it. Held, That the defendant was not liable to any extent on his guarantee, as he only agreed to be responsible if the advances amounted to £1000. The con- tract of guarantee must be strictly con- strued. Thome v. Carman, 2 Kerr 38 1 . 2— When an Absolute 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 the plaintiff to transfer to her the balance of lumber coming from T., for which they acknowledged to have reoeived payment in full from the plaintiff, and guaranteed to see tho lumber delivered at the time specified in the agreement withT. Held, That this was an absolute contract by the defendants to deliver the lumber, and not a guarantee that T. should deliver it, and that the plaintiff had nothing to do with T.'s contract except to ascertain the time of delivery. Lindiay v. Rose, 3 Kerr 576 — Contract — Delivery of Shingles — QuaUty— Inability. In March 1871, P. agreed to sell and deliver to plaintiff all the sawed cedar shingles his mill manufactured during that seamn, to be paid for on delivery, at certain rate», according to quality. The plaintiff at the same time made an advance of $500 to P. on the contract, and the defendant agreed a» follows : (all being written on the same paper,) "I guarantee to D. G. (plaintiff,) that on or before the 10th May next, P. will deliver to him sufficient sawed cedar shingles at the rate specified in the within contract, to make good to him the above advance of $500 ; he failing to do so, I hereby 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 whatever portion of shingles may be de- livered by said P., supposing the amount does not come to $500." P. delivered a quantity of shingles, some under the contract, (but not to the amount of $600) and some of a different description and under a separate contract of which the defendant had no knowledge. Held, in an action on the guarantee, That the defendant was only entitled to credit for such shingles as P. had delivered of the description and quality described in his contract with the plaintiff, and not for all the shingles delivered ; and that the plaintiff was not bound to give notice to the defendant that P. was not fulfilling his contract. George v. Brayley, Hit. T. 1873. IV. Partie's Interest in Guar/vKtee — BiaHT TO Sub. See Agreement 8. A guarantee by one partner in the name of the firm for a matter not relating to tho Sartnership business, will not bind the rm. Maria v. Wright, HU. T. 1828. See Supra. Neville v. Joseph I. 4. m GUARDIAN IN SOCAGE. Widow holding possession for heir. Possession 4. See 220 HEIR AT LAW. HIGHWAYS. GUNPOWDER. Sco RcvoQuo Act. HABEAS CORPUS. Proceedings issuiog after habeas corpus to remove cause — Irregularity in writ of — Setting aside proceedings. Sec Practice VI. 46. HALF BLOOD. The half brothers and sisters of a person who dies intestate and without children, are not entitled to the whole real estate, under the Act of Assembly 26 Geo. 3, c. 11 ; but as "the next of kin" they are entitled to the remainder of the estate after the portion of the heir at law is deducted. Doe v. Tronghton, 3 All. 414. If no heir at law can be found, quxre, in whom will this portion of the estate vest ? Ibid. The person entitled as heir by the common law, is not excluded under the Act, though he is not one of the next of kin to the intestate; neither are the next of kin prevented from taking the remainder because they are not in equal degree with the heir, but nearer in degree. Ibid. HARBOUR MASTER. Appointment of. ficer 1. See Appointment of Of- Recovery of Fees. See Assumpsit III. 33. HEIR. See Half Blood. Widow holding for heir. See Possession 4. Right of entry suspended until death of tenant by the Courtesy. See Reed v. Bur- chill, 2 All. 168. HEIR AT LAW. 1— Intestate without ohildren. If A. die intestate and without children, leaving a brother and two sisters, the brother as heir at law will be entitled to a double portion or two-fourths of the real estate of A. in this Province, under the Act of Assembly 26 Geo. 3, c. 11, s. 12, and the sisters to one-fourth each. The words in the Act do not confine the double portion to the eldest son or lineal heir, but extend to collaterals. Doe dem. Thompson v. AUanshaw, 1 Kerr 84. a— Advanoement. Under the Act of Assembly 26 Gen. 3, c. 11, the eldest son and heir at luw nf an intestate must bring into hotchpot his advancement of the realty, as well as the younger children, if he seek a portion of the real estate left by the father. He will be entitled to two shares or a double portion of the aggregate of what has been advanced and left — per Botsforc' '->r and I'arker, Justices; Chipma dissentiente. Doe dem. Shore v. »s«u»- ders, 2 Kerr 18. 3— Next of Kindred. If a person dies intestate and without children, leaving a mother and brother and sisters, the brother and sisters arc entitled to his real estate under the Act of Assembly 26 Geo. 3, c. 11, s. 12, as " the next of kindred in equal degree," to the exclusion of the mother. Doe d. Mahoney v. Crane, 3 Kerr 228. The eldest brother is entitled to a double share, as heir at law. Jbid. (See Half Blood.) ' HIGHWAYS. (See Justice of the Peace.) 1— Saint John Highway Act— Co^iirm- ing roads — Obstructions — Non- USGP The Saint John Highway Act 50 Geo. 3, c. 16, s. 3, confirms all highways used as such, to the extent and width to which they were originally laid out ; and a party is liable for placing an obstruction within the limits of the road as laid out, though that part of it has never been used as a road by the public. Rex v. Bennett, Mich. T. 1825. 2— Boad through private property- User. A road through private property (parallel to a public road, as laid out and recorded but opened through the whole distance), is not deemed a highway, nor dedicated to the public, though it had been used for twelve years by persons having occasioD to travel in the direction to which the public road extended. Rex v. Vail, Mich. T. 1826. 3— Presence of Justices at assessment. The Justices who issue the warrant to summon a jury to lay out a private road, under the Act 50 Geo. 3, c. 6, s. 12, must be present at the assessment of the daui- ages, i'itt V. Lawson, Hil. T- 1827. HIGHWAYS. 221 4— Corporation of St. John— Obligation — Indiotment. The Curporation of St. John bein^ bound by public law to repair the highways in the City, it is not necessary, in an indict- ment ibr not repairing, to set forth the particular ground of the obligation. Rex V. the Mayor rf-c. of St. John, Ilil. T. 1828. 6— Proceeding for alteration of road. A proceeding under the Act 50 Geo. 3, c. ti, to obtuin an alteration of a road, must bo a continuous proceeding ; there- fore, if a proceeding on one applioution fails, there umst be a new application of freeholders for a warrant to summon an- other jury. Rex\. White, CommihSWifr of Waterborough, East. T. 1831. 6— Laying out— Betum of Oommission- ers not evidence of. A road must be laid out before it is re- corded : the return of the Commissioners of Highways is not evidence of the laying out of a road under the. Act 50 Geo. 3, c. t). Rex V. Sterling, Ber. 22. 7— Neglect of Commissioners to file rettim— Laying out not invalid thereby. The laying out of a public highway by Commissioners, under the Act 5 Wm. 4, c. 2, does not become invalid by the ne- glect of the Commissioners to file a return of the laying out with the Clerk of the Peace, as directed by the Act. Brown v. McKeel, IKerr^lX. S-Trespass— Justification— Width of Boad. The defendant in trespass pleaded that the locus in quo had been laid out and recorded as a public road, three rods wide. Held, No justification ; the Act requir- ing that no public highway should be laid out of less width than four rods. Perlee v. Dibblee, 1 Kerr 614. 9— Conviction— Obstruction-Place. A conviction for obstructing a highway, is bad, unless it appears on the face of it that the place where the alleged obstruc- tion took place was a public highway. Reg. v. Brittain, 2 Kerr 614. 10— Certainty of description— Laying out. The record of a road laid out by Commis- sioners under the Act 5 Wm. 4, cap. 2, should so describe the road that a person going on the land with the return, may bo able to ascertain and trace the road ; and if the return does not point out the width of the road, or if it does not appear whether the line described is tu bo the centre, or the side of the road, it is defec- tive. Boynington v. Holmes, 3 Kerr 74. Semh/p, That making one line on the ground may be a sufficient laying out, if it appears how the width of the road is to be formed in reference to such line. JOid. 11 — Intended alteration — Objecting PartioB— Notice. Where tlie proceedings of Commissioners in altering a road under the Act 5 Wm. 4, c. 2 were objected to, whereupon the inhabitants applied to two Justices to '^btain a warrant for a jury. Held, That no notice was necessary to be given to the objecting parties of the time and place of the jury's meeting to inquire into the intended alterations. Reg v. Commission" in o/ Highways /or Johnston, 3 Kerr 583. 12— Justice Presiding— Belationship — Summoning Jury— Parish. It does not render a Justice incompetent to preside nt an inquest of a jury sum- moned under the Highway Act, that he is married to a sister of tbe party apply- ing for an alteration of the road : nor is it necessary that the jury should be sum- moned from a different Parish from that in which the alteration is to be made. Ibid. 13— Dedication— User. Dedication of a road to the public may be presumed from long uses and the ex- penditure of statute labor on the road; and a party may be convicted under the Act 5 Wm. 4, c. 2. for encroaching on such a road, as upon a highway duly laid out under the Act. Reg. v. Buchanan, 3 Kerr 674. 14— Title to Land— Justice of Peace- Trial. If in a prosecution before a Justice of the Peace, under the Act 5 Wm. 4, c. 2, for obstructing a highway, the title of land comes in question, it must be gone into by the Justice if he entertains the suit. Ibid. 16 — Removal of Fence — Commission- er's Duty. If a road is laid out over land on which a fence is standing it is the duty of the Commissioner of Highways to move the fence, and the owner of the land, omitting to do so, is not punishable under the Act 222 HIGHWAYS. 6 Wm.. 4, c. 2, for obstruotiag the high- way. Ex parte Aforri'mn, 1 All. 203. 10— Dedication— Evideiioe. A public highway uiay be established in this couQtry by dedication and user ; but if the question arises between the public and the owner of the land in a newly settled part of the country, stronger evi- dence may be required than in a more populous neighborhood. Reg. v. Deane, 2 All. 233. 17 — Crown Beserration — Bight- Evidence. Land was grunted to the Corporation of St. John in 1785, reserving a right to the Grown to enter at any time and erect barracks, batteries, &c. Held, 1st. That this did not prevent the Corporation from dedicating a part of the land to the public for a highway; 2ud. That neither the running of linos across the land by officers of the Uoyal Engineers in 1816 and 1818, without proof of their instructions, nor the subsequent erection of a gate across the road by the military authorities, and occasionally closing the same, was suffi- cient evidence of the exercise of the res- ervation to vest the exclusive right to the land in the Crown, the road having from that period been constantly used by the public, and by the Military only as a road. Ihid. 18— Becord— Certainty— Entry of Com- miHsioner or Surveyor. The record of the laying out of a road under the Highway Act 12 Vict. o. 4, should state the width and courses of the road ; and if defective in these particulars, it will not justify the Commissioner and Surveyor of roads in entering on land to open a road. Ba»ternchc v. Alki'nton, 2 All. 439. 10— Expenditure of Public Money— Extent. The expenditure of public money on a road laid out thirty feet wide, can only make it a public highwiiy to that extent, and will not have the effect of making it n highway four rods wide. Ibid. ao -ABseasment of damages— When made— Instance of owner. The oasossniont of damages to a person through whose improved land a public road is laid out under the Act 13 Vic. c. 4, need not be made concurrently with the laying out, but may be subsoquont to it. If made before the road is laid out, it is H nullity. It should be made at the instiinoe of the owner of the land, and not of a person applying for the road. Ex parte. Hrhert, 3 All. 108. 21- Warrant to summon Jury—Direc- tion— Delivery. The warrant to summon a jury should either be directed to a particular consta- ble, or, if generally, •' to any constable," should be delivered by the Justice who issues it to some particular constable to execute, and not left with the party ap- plying for the jury to select a constable. Ibid. 22— Assessment on view. The jury may assess the damages on view of the land, without examining witnesses, if none are produced. Ibid. 23— Levy of Damages. The Sessions cannot order the damages assessed by the jury to be levied upon the inhabitants of part of a Parish unless the Commissioners recommend it. If the Commissioners recommend the assess- ment to be levied on a certain district, under sec. 9 oPthe Act, they must name the persons to be assessed, and must in- clude all the resident rateable inhabitauts within the district. Ibitl. 24— Betum to Sensiona. Semble, That the Commissioners may amend their return to the Sessions belbro an order made to levy the assessment. Ibid. 2S— Assessment set aside— Application de novo. If an assessment is set aside for irregu- larity in the proceedings, the owner of the land may apply for a warrant and assessment de novo. Ibid. 26— Damages— Value of Land— Keep- ing up fences. In assessing damag(.ts under the Highway Act, to the owner of improved land in consoquonce of u public road being laid out through it, the jury are not confined to the value of the land, but may take into consideration the expense of koopiog up fences. liej. v. Justices of Kant, 'A All. 118. 27— Excessive Damages— Beftiial to set aside. Whore the quantity of land taken was two acres, and the jury awarded the owners £7& damages, the Court refused to sot aside the award, though it wag sworn the land was not worth more than j£6 per acre, and that some of the jurors had stated they gave the high damages to prevent the road being opened. Ibid. HIGHWAYS. HORSE RACE. 223 28— Order of Sessions— Levy- Damages. Where the jury recommended that the damages should be levied upoD a certain part of the Parish in which the road was, and the Oummissionors sent the assess- ment to the Sessions, requesting that it might be " dealt with according to law," but not stating their opinion that the road was only for the convenience of a portion of the Parish : Held, That tho Sessions were warranted in ordering the amount to bo levied on the whole Parish. Ibid 29— Beoommendation of Commission- ers not binding on Justices. Tho Justices arc not bound by a recom- mendation of the Commissioners that the damages should bo assessed upon a cer- tain district. If they disagree with the Commissioners, quaere, whether they have p)wer to assess the whole Parish. An ordc of the Justices to assess the amount of damages awarded by a jury, is a suffi- cient order for the payment. Ibid. 80— Dedication of Crown. To establish a highway by dedication of the Crown, the particular land must be expressly reserved in u grant from the Crown, or be defined in tho plan of a grant containing a reservation of roads. Cok v. Maxwell, 3 All. 183. In tho absence of any evidence of a plan attached to an ancient grant of land " w« bind hiiii ; and that when the necessity for the au- thority ceased, her right to bind him ceased also Hold, per N. Parker, M. It., That a husband wno wrongfully turns away his wife, continues liable at law fnr her support, except in ease of her niii*- conduct ; and that the question whether she was bound to return to his home on his offer to take her back, could only be det«)rmincd in the Spiritual (]ourt, in a suit for the restitution of conjugal right«. liennelt v. Jme», 4 All. 397. 6 — Bent — Tenant dsring, leaving a widow- Oontinuanoe of possession by second huoband — Non-Joinder of wife. A tenant died in posaowion of promiBoa, b — Laud was oonvoyod to a uiarriod woman, III. Sei'AUAte Property op Wipe. IDENTITY. INCUMBRANCE. 225 for life, fbr her separate use ; it was man- aged under her directions, and the labor paid for by the produce of the land, the husband not interfering except as her agent. Held, 1st. That under the Rev. Stat. 0. 114, the crop, when severed, did not become the property of the husband, and was not liable to seizure under an ex- ecution against him. 2nd. That an action for seizing the crop, under execution against the husband, was rightly brought in the name of husband and wife. Dow and Wife v. Dibblee, 1 Han. 65. 9 — 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 labour of his servants and children, are his and liable to seizure tor hi? debts, and the Sheriff umy enter to make a levy. In the absence of title, the possession is the possession of the husband. Pourrier and wife v. Ray mond, 1 Han. 512. IV. Miscellaneous. Infant subsequently married — Right of entry of husband. See Limitation of Actions IV. 16. Mesne profits— Judgment against wife before marriage— No averment of marriage. An action tor mesne profits against hus- band and wife alleging a joint trespass, is not supported by proof of a judgment in ejectment against the wife before mar- ringe— the marriage not being averred. Bumham v. Watts, 1 All. 89. Costs — Attachment against married woman. See Attachment 27. Deed — Joinder by wife. See Deed I. 27. Partition — Infancy — Long aoquiescenco. See Partition. Decree barring right of dower of wife. See Divorce. Tonunt by Courtesy. See Property p;;!;alii|^ to husband's representa- tivot. See Supru, Abvll v. Light, Wife not competent to submit by bond to arbitration. See Arbitration, &c., V. 4. Deli f cry of note to wife by husband — De- livery of box. See Donatio Mortis Vama. See Name. IDENTITY. 20 Identity of person — Two surveyors of lum- ber same name—Iieft to jury to decide upon the evidence which of the two was intended. Rankin v. Emery, Ber. 330. Identity of defendant with person named in note — Sufficiency of evidence. See Bills and Notes V. 16. Trespass — False imprisonment — Not shewn that party was commonly known by name by which he was arrested. See Pleading II. 20. Judgment — Action on — Averment that the defendant and person named are the same, sufficient. See Pleading I. 28. Alias description — Sufficiency of proof. See Pleading I. 57. Judgment — Action on — Qusere, As to suf- ficiency of name of defendant, with person named in judgment. See Evidence II. 29. Arrest — Insufficiency of affidavit to dis- charge defendant for arrest under mis- taken name. • See Affidavit III. 6. Replevin — Mistake in name of party claim- ing property. See Replevin 21. Identity of Commissioner taking deposition. See Evidence IX. ILLEGITIMATE CHILD. Liability of fbther for support of. The father of an illegitimate child is not liable to a third person for the expense of supporting such child, unless it has been incurred upon his authority ; or he has contracted to pay for it. Forrett v. Jlfc- Rea, 2 Kerr 174. Grandson — Legitimate and Illegitimate Child — Same name — Devise — Operation. Sec Will 2. IMPERIAL STATUTES. See British Statutes. IMPLIED CONTRACT. Sco Contract. INCUMBRANCE. Registered Memorial of judgment against vendor is evidence of incumbrance on his laud. See Lien. Purchaser of land entitled to land fVoe fVom inuumbrauoe. See Vendor and Pur- chator. t AJ u m m 226 INFANT. INFERIOR COURTS. Registry of Mortgage not a notice of an incumbranoe to a subseqaent purchaser. See Doe v. Power, 1 All. 271. INDEMNITY. Master and owner of ship — Risks — Implied contract to indemnify — Negligence. See Principal and Agent 22. INDICTMENT. See Criminal Law. INDORSEMENT. See Bills and Notes. INDUCTION. See Trespass I. 8. INFANT. 1— Promissory Note. The promissory note of an infant is void- able only, and he may confirm it after he comes of age. Fisher r. Jetcetf, Ber. 35. 2— Deed— Voidable. The deed of an infant is voidablo only ; and the infancy cannot bo given in ovi- denoe to invalidate the deed, in a suit between third parties. Donohoc v. Hal- lett, Trin. T. 1828. 8— Ayoidanoe by heirs. The conveyance of an infant is voidable only, and may be confirmed after ho comes of age ; but if he dies soon after coming of age, having done no act to confirm the deed, his heirs may avoid it. Doe d. Foitery. Lee, Mich. T. 1871. 4— Covenant not to trade. A covenant by an infant in an indenture of apprenticeship, that he will not carry on a trade within certain limits, is not binding on him. 100. Reg. y. Barrit, 1 All. 6~0onveyanoe to influit— Fraudtilent intent — Subsequent oonveyanoe by grantor and inflmt. Land was conveyed to an infant by direction of his father for the purpose of defVauding the father's creditors, the father having afterwards been arrested by the creditors, he and his son joined in a mortgage of the land to secure the debt. Held, That the mortgage was good ; that the infant being only u trus- tee for his father was bound to convey the land as he directed ; and that neither of thorn could set up the infancy to de- feat the mortgage. Doe dem Diffi,n v. Simpson, 3 Kerr 194. 6— Scire Facias on judgment — Infiuit not served. Judgment by default was signed against A. and B. on a joint and several proniis- sory note. B. was not served with pro- cess, and on a scire facias against him, under the Act 26 Geo. 3, c. 24, to obtain execution on judgment, proceedings were stayed — it appearing that at the date of the note he was an infant, and had not authorised A. to sign the note for him, and had no knowledge before the judg- ment of its having been done. Neither the fact of the note having been given for a balance due the plaintiff on a lumber transaction, in which A. and B. were jointly concerned; nor of B.'s having offered after coming of age to compromise and pay a portion of the debt, will deprive him of his right to relief Mitchell \. Astle, 2 Kerr 86. Right of entry accruing to female infant- Marriage — Action not brought wjtliin time, ^'eo Limitation of Actions IV. 16. Infancy no bar to enforcing contract. Sec Contract 14. Infant apprentice — Conviction. See Ap- prentice. INFERIOR COURTS. Taxing Costs by Clerk of Supremo Court. See Costs 75. Mandamus to try Cause. Sec Mandamus 2. Mandamus refused to compel Court of Com- mon Picas to award costs. See 3Iunda- mus 7. Mandamus refused to compel Magistrate to proceed in a criminal cause at suit of private prosecutor. See Mandamus, Prohibition to restrain action brought against Clerk of tho Circuits for recovery of fine imposed. Sec Prohibition. Removal of Cause — Issue of Writ of Error. See Error (Writ of) Tho Inferior Courts of Common Pleas have no power to grant new trials, and a man- damus will issue to compel them to enter judgment for a party lu whoso favor i verdict has been given iu that Court. Itcx V. Justices of Northumbirltind, Mil T. 1826. The Inferior Courts of Common Pleat are See Practice ii See Defamatio INROLLMENT. INSOLVENT ACT OF 1869. 227 Courts of Record in regard to summary actions, as well as other actions. WJieeler V. Grant, M!ch. T. 1832. INFORMATION. See Justice of the Peace. " Criminal liaw. " Crown Grant 1. 18. 1 — An information of debt, filed by the Attorney General, is sufficient, though it is stated to be on the relation of the Deputy Treasurer : if such allegation is unnecessary, it might be rejected as sur- plusage. Attorney General v. Patterson, East. T. 1826. 2 — Au information, alleging the offence to be the importing goods into the Province .rora the United States, contrary to the Acts of Assembly, does not state any offence against the Act 6 Wm. 4, c. 4, which declares a forfeiture of all goods landed before they are reported at the Treasurer's office, and a permit obtained. The "importing" goods, and "landing" thorn, are distinct acts. Attorney General V. 250 Barrels of Fish, Ber. 419. INJUNCTION. See Practice in Equity — Equity. INNKEEPER. Prohibition as to selling liquor on credit. The prohibition in the Act 17 Vie. c. 15, s. 13, against soiling liquor on credit, only applies to innkeepers and tavern keepers. McAtUey v. Lawlor, 4 All. 600. See Boarding House Keeper. INNUENDO. See Defamation — Pleading. INQUEST OF OFFICE. See Crown Grant I. 18. " Licence. " iDtrusion. INQUIRY (WRIT OF.) See Practice X. INROLLMENT. Statute of InroUmenta is in force in this Province. See British Statutes. INSOLVENT ACT OF 1869. 1— Ck>unty Court Judge— Hearing petition. The County Court Judge of the County in which the demand on the debtor to assign is made, is the proper party to hear i,he petition, although the debtor may reside and do business in another County. See Ex parte Thomas, 2 Han. 163. Removal of proceedings had before Judge of County Court not allowed. See C'er- tiorari I. 5. 2— Creditor— Debt not matured. A creditor whoso debt has not matured may take proceedings to subject the estate of his debtor to compulsory liquidation under the Act, section 20. In re Perk*, U Han. 121. 3— Property— Third party— Claim— Attadhment. If property claimed by a third person has been attached as the property of an in- solvent, under a warrant issued under the 20th section of " The Insolrent Act of 1869," such person has no right to apply, under section 50, to set aside the attachment, or to have the property re- stored to him by the assignee : he must resort to his common law remedy. Cle- mentson v. Hammond, East. T. 1871. A third party cannot object to the regu- larity of the proceedings taken against a debtor under the Insolvent Act of 1869. Ibid. 4— Execution— Setting aside— Bight of Insolvent. Plaintiff, a judgment creditor of defend- ant, proved his claim before the assignee under the Insolvent Act ; afterwards, and before defendant obtained his discharge, the plaintiff issued execution on his judg- ment, and levied upon property which the insolvent had not included in his schedule of assets. Held, 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 to set aside the execution, 08 in either case, ho could have no right to it. Jones v. DesBrisay, Trin. T. 1871. 5 — Where proceedings for compulsory liqui- dation are taken under "The Insolvent Act of 1869," and an attachment is issued, money which has been levied by the She- riff under an execution against the debtor, but which has not been paid over to the 41 i JI26 INSOLVENT CONFINED DEBTOR. Jadgment creditor, passes to the assignee, under the &9th section of the Act. Bul- len V. Harding, Mich. Tl 1871. e— Compulsory liquidation— No peti* tion presented— Frooeedings. M., a creditor of defendant, made a de- mand upon him to assign his estate, fur the benefit of his creditors, under the 14th section of "The Insolvent Act of 1869." No petition against this demand was pre- sented within five days, as required by the Act, but after that time the defendant settled his debt with M., who took no further proceedings. 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 creditors of the de- fendant. Dever v. Morris, Hil. T. 1872. 7— Sections 02 and 03— Quasi penal. The 92nd and 93rd Sections of "The Insolvent act of 1869" being quasi penal, are to be strictly construed, and to warrant imprisonment under their provisions the case must bo brought within the express wordo of the Act. Junes V. Bigeau, East. T. 1873. 8— Ofibr to lufilor judgment— Bfftet. In an action on a promissory note made by the defendant in favor of the plaintiff, the declaration alleged fraud and false pretences in obtaining credit according to the 92nd section of tha Act, the de- fendant pleaded the general issue and gave a notice of defence denying the alleged fraud ; he also filed an offer under the Act 18 Vict. o. 9, to suffer judgment by default for the amount of the note, which offer the plaintiff accepted. Held, That this was not such a judg- ment by default as was contemplated by the 93rd section of the Act ; the accep- tance of the defendant's offer having settled all the issues in the suit, and therefore no order for imprisonment oould be made. Ibid. INSOLVENT CONFINED DEBTOR. Applioatioa for Relief — Discharge — Re- ^al. DisoretionarT power in Court — County Court Judge. Order — Non-compliance with — Notice — Execution atler discharge — Legal pay- ment — Certiorari. Costs — MisooUancous. See Insolvent Act of 1869. 1— Application for relief— Accounting for property. An a£Sdavit for relief under 1 Wm. 4, c. 43, must account for all the property the defendant may appear to have possessed. Applications ibr relief way be made id the suit, or may be considered as distinct judicial proceedings. WUmoty. Gornwell and Babine, Ber. 31. 2— Confinement— Time. To entitle a debtor to a discharge on the ground of having been confined for a year, it must explicitly appear that he has beea in confinement for the whole time in the suit to which the application refers. Ex parte Hennigar, Ber. 209. 3 — Accounting for property — Volun- tary disposition. A confined debtor, applying to bo dis- charged under the Act 6 Wm. 4, o. 41, 8. 4, must account fairly and fully for any property of which he may have been in possession at the time of commencing the action, and relief will not be granted if his inability to discharge the debt arises from a voluntary disposition of his pro- perty made pending the action, the value of which is not properly accounted for, Wyer v. Goss, 1 Kerr 193. 4 — Assignment of property — Deed - Production. Where a person who has assigned his property to trustees for the benefit of his creditors, applies for discharge under the Insolvent Debtors' Act, a copy of the trust deed must be brought before the Court. McFarlane v. Gordon, 2 AH. 162. 6— Assignment— Ofibr— Notice. Where a confined debtor, possessed of property, has not offered to assign it to the plaintiffs, at whose suit he is in cus- tody, in the manner directed by the Act 13 Vie. c. 31, he must clearly show that such deviation has not been made with any unfair object, before he can claim the assistance of the Court. An nssigD- ment of property by a confined debtor to a third party, without notice to the exeoutioa creditor, in trust for the benefit of such of his creditors as shall execute the trust deed, within two mouths from its date and release him, is an undue pre- ference within the meaning of the Act. Charlotte Connti/ Bank v. WtUiaim, 2 All. 183. 6 a — An assignment by an insolvent oon- fined debtor in trust for the benefit of INSOLVENT CONFINED DEBTOR. 229 such of hia creditors aa should execute the deed within a limit«d time, and release him from his debts, is prima Jane an objection to his being discharged from confinement under the tenth section of the Act 13 Vic. c. 31 ; but where a debtor had no means of paying his debts, nor any interest in the property assigned, and had been a prisoner twenty months, the Court discharged him. Charlotte Cmmtff Bank v. Williams, 2 All. 258. 0— Variance— Deed— Consideration. Where an insolvent debtor having been confined more than a year, applied to the Court for relief, and in setting forth the sum he had received for a lot of land, there appeared a variance of £50 between the price alleged by him and the consid- eration expressed in the deed of convey- ance. Held, That this ciroumstance, unexplained, was a sufficient ground for refusing the application. Ex parte Goss, 1 Kerr 164. 7— Conveyance to Son. Between the signing of the judgment and issuing the execution, the defendant con- veyed his land to his son, who gave a bond to support the defendant for life ; the Court refused to discharge him under the Insolvent Debtors' Act, though he had been in custody over twelve months, and though the land had since been sold by the Sheriff under an execution against the defendant ; it not appearing that the son had lost the possession of the land, or that the bond was not still in force. Kelli/ V. Wihon, 1 All. 375. 8 — Where an insolvent debtor had conveyed his property to trustees for the benefit of such of his creditors as should execute the deed within two months and release him, the Court refused to discharge him out of custody — no satisfactory account being given of the amount of property received by the trustees. McFarlane v. Gordoii, 2 All 201. 9 — It is no answer to :iu appliuutiou for dischargo by a debtor who has received the weekly allowance for six months under the Insolvent Confined Debtors' Act (1 Kev. Stat. o. 124), that ho has the moans of supporting himself: that is a ground for susponding the order for support, under ttio 8th suction of the Act. Dcs- Jirisajfv. Mooneif, Ilil. T. 18GJ. 10 — Defendant having been arrested on neme process, applied for support under the Insolvent Confined Debtors' Act (1 Kev. Stat. c. 124), and was refused: hu afterwards entered special bail, and judg- ment having been signed in the suit, and a ca. sa. issued, he was again arrested, and remained on the limits for upwards of six months. Held, That an applica- tion to two Justices for support was ne- cessary after the second arrest, before the Court could relieve hiui under the 9th section of the Act. [By Act 26 Vic. c. 10, application is to bo made to a Judge of the Supreme Court.] Small v. (Jole- m,an, Hil. T. 1861. 11 — Power in Court to discharge — Confinement for year. The Court is empowered to discharge an insolvent confined debtor after he 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 application has not been made, must come from the creditor ; other- wise the Court will not notice it. Fair- hanks V. Dolby, 2 Kerr 80. la— Discretionary power— Preference without fraud. The Supreme Court has a discretionary power to discharge an insolvent debtor under the Act 6 Wm. 4, c. 41, and will exercise such discretion where the debtor has not acted fraudulently, though he has given a preference to creditors which would prevent his discharge -by two Jus- tices under the second section of the Act. Barker v. Bols, 1 All. 722. 18— Quashing order of Justices. Where Justices make an order for sup- port under the Insolvent Debtors' Act — (1 Rev. Stat. c. 124,) — and it appears by the examination of the debtor that he has given an undue preference to one of his creditors — this Court has power to quash the order. McDonald v. Watt, 1 Han. 24. 14 — County Court Judge has power to discharge debtor in any county within his district, or to bring debtor from any county within his district, and possesses same power as Supremo Court Judge to discharge. Ex parte Jardine, 1 Jlan. 572. 16— Order— Justices— Discharge for non-payment. An order for discharge for non-payment of weekly allowance, under the Insolvent Debtors' Act, 1 Ilov. Stat. o. 124, need •not be made by the same J uatioes that made the order for support. Parker, J , I 230 INSOLV'T CONFINED DEBTOR. INSURANCE. and RiUsh\e,J.,dmentieHtibu8. Junes v. Fletcher, 4 All. 550. 18— Notice of order. Where the creditor'^ attorney was iu Court, and heard the order for support made, notice of it is not required. Ex jinrte Jaritiiie,, 1 Han. 572. 17— Execution after diacharge. Where an Insolvent Debtor hud been dis- chnrjred under the 1 Rev. Stat. c. 124, the (!ourt refused to allow a new execu- tion to i.s8ue against him, though the weekly allowance had been tendered to the gaoler of the county upon the limits of which ho was confined, and at the house where he lodged. Doe v. Ifolmct, 4 Kerr 557. Senibk, That if the order for discharge had been irregularly obtained, it should be ' set aside before any proceedings are taken against the Debtor. Jltid See Act of Assembly 23 Vic, c. 28, author- izing payment to gaoler at gaol. 18— Legal payment. Payment of the weekly allowance to a con- fined debtor may be made in coins which are not a legal tender, if not objected to. Ilattieway v. Day, 4 All. 595. 10— Certiorari. A certiorari lies to remove into Supreme Court the proceedings before Justices under Insolvent Confined Debtors' Act. V^hite V. Coleman, 4 All. 630. 20— Costs. Costs will not be given on refusing the first application of an insolvent debtor, except in an extreme case, but the rule is otherwise on a second application where the objections made at the former, are not fully answered. See McFarlane v. Gor- don, 2 All. 162. 21 — Where an application to discharge an insolvent debtor was refused with costs, the Court refused to uiako the payment of the costs a condition precedent to ano- ther application. Sec MFarlane v. Gor- don, 2 All. 201. Non-suit — Defendant becoming insolvent. See Judgment, as in case of Non-suit II, 6, 11. Partner — Power to compound debt. Sec Partnership 8. Ascertaining Insolvency. See Pleading II. 36. Pleading Discliargc — Replication Fraud. See Pleading II. 3. SheriflF's Poundage on Cit. Su — Debtor ob- taining disciiarge. See Sherifi^ 16. Application for Certiorari to bring up pro- ceedings before Justices. See Certiorari 1.4. INSPECTOR. See Common School Act 1871. INSTALMENT. See Joint Stock Company. INSURANCE. 1 — Insurance on house — Title — Interest. Plaintiff being in possession of a house effected insurance upon it as owner. The property on which the house stood was leasehold, and the legal title prior to the insurance was in W., under whom plain- tiff claimed by a writing (said to have been burnt,) not under seal, and stating no consideration. It appeared that W. had, before the insurance, assigned the lease to B. by deed duly registered. Held, That the title was in B. by the registry of the assignment, without any entry, and that plaintifi' had no insurable interest. Crock/ord v. London and Liverpool Inmirance Co., East. T. 1861. S. P. — Crock/ord \. Equitable Insurance Co., Mich. T. 1863. 2— Declarations- Eridenoe. In an action against the Secretary of the Society of Underwriters, under the Act 21 Vie. c. 61, the declarations of an underwriter on the policy, relative to the subject matter, are evidence against de- fendant. Dnffy V. Stymest, Trin. T. 1861. 3— Fraud— Entire Contract. Plaintiff insured two buildings, and the merchandize in one of them, against loss by fire. 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. One ground of defence to an action brought on the policy was, that the plaintiff made a false declaration as to the value of the goods lost by the fire. Held, That the contract was entire ; and if the plaintiff was guilty of fraud or false statouiqnt in reference to the goods, ho could not recover any part of the insu- rance. Cashmnn v. Loiulon and Liver- pool Ins. Co., Jlil. r. 1862. niaintenai INSURANCE. 231 4_Gtoneral Average— Bule. A vcKsel sailed f'roui Shields, G. B., bound for Providence, Rhode Island, and was obliged to put into Cowes and Cork to refit. A jettison occurred during the voyage, and on her arrival at Providence, a general average was made up, accord- ing to the rule of that port, which inclu- ded an allowance for seamen's wages and maintenance. Held, That the rule pre- vailing at the port of destination was to be adopted in making up the adjustment of general average charges; and not the rule in England, where such charges would be excluded McGivern \. Sty- mest, East. T. 1862. 6— Bepairs— STot seeking instruotions —Sale of vessel— Liability for total loss— Damages. A vessel sailed from Havana fur New York, and the next day struck on a rock : she continued on her voyage for ten days, and then put back to Havana, which she reached in five days. A survey was held, and it was found that she could not safely proceed to New York without repairs, which the captain said would cost there more than the vessel was worth, though they could have been made in this Pro- vince for about £75. Tho vessel was safe in tho harbour of Havana without repairs ; and instruotions respecting her, might have been received from the owners with- in a month. Held, That the captain was not justified in selling the vessel, and that the underwriters were not liable for a total loss, without notice of abandonment. Semble, That even if the plaintiff could have recovered for a partial loss, it could only be for nominal damages, as there was no evidence by which the amount of loss could bo estimated. Wood v. Sly- mest, East. T. 1S62. 6-Oertifloate of nearest Magistrate— Inter,est— Disqualification. One of the conditions of a policy required, that persons sustaining loss should pro- cure a certificate of u magistrate or notary " most continuous to the place of the fire, and not concerned in the loss, as a cre- ditor or otherwise, or related to the insur- ed or Bufi'erers," that he was acquainted with the insured, and verily believed that he had sustained the loss without fraud, oto. Held, That where tho nearest magis- trate wns also a sufferer by tho same fire which destroyed the plaintiff's property, ho was disqualified from certifying under the words of the condition, " concerned in the loss as a creditor, or otherwise." Qutere, Whether the fact of the nearest magistrate being a creditor of the insured disqualified him from certifying. Sem- ble, No. Ganong v The Etna Ins. Co., East. T. 1864. 7— Transfer of Ship— Security- Inten- tion. Where a bill of sale of a ship has been executed, it may be shown that the trans- fer, though absolute in its terms, was intended only as a security, and that the transferror has an equity of redemption. MHUihje V. Stymcst, Trin. T. 1864. 8— Notice of abandonment must be fiven by legal owner— Notice y equitable owner— Becovery. Notice of abandonment must be given by the legal owner of a vessel. Where such notice was given by an equitable owner, and a verdict recovered against the under- writers as for a constructive total loss, the verdict was set aside : the plaintiff only being entitled, as equitable owner, to re- cover for partial loss. Ibid. 9— Preliminary proof —"Waiver. The mere fact that an lusurance Company states no objection to the preliminary proof given of a loss, at or after the time of its being received, is no evidence of a waiver by them of objections to it ; but where objections are made on other grounds, and no objection taken to the sufficiency of the preliminary proof, it may be evidence of a waiver. McManus v. The Etna Ins. Co., Trin. T. 1865. 10— Constructive total loss. An insurance on fish was declared in the policy to ije " against total loss." Held, That a constructive total loss came within the words of the policy. O'Leary v. Stymest, East. T. 1865. 11— Claim for constructive total loss- Evidence of partial loss— No evi- dence of amount of repairs— Da- mages. Plaintiff claimed for a constructive total loss, but tho evidence showed a partial loss only — tho vessel having been repaired and sailed again. No evidence was given as to the amount of the repairs, and the plaintiff was non-suited. Held, That tho non-suit was wrong ; and that plain- tiff was entitled to a verdict ibr nominal damages at all events. MiUidye v. Ste- rnest, East. T. 1866. 232 INSURANCE. 12— Mortgagee— Foreoloaure— Sale— Extingaishment of intereat. Plaintiff ineured his interest in a house as mortgagee : the mortgage was after- wards foreclosed, and the property sold under the decree, and purchased by the plaintiff. Held, That his mortgage inter- est was extinguished by the foreclosure and sale, and that he could not recover for a loss happening afterwards. Gmkln V. The Fhanix Ins. Co., Trin. T. 1866. 13— Mortgagee— Insurance by— Debt paid. Where a mortgagee insures, solely on his own account, it is only nii insurance of his debt ; and if the debt is afterwards paid, ur the mortgage discharged, the policy ceases to have any operation. Ibid. 14— Continuance of Policy on Ooods— Change of Ownership— Agent — Want of Seal— Covenant not maintainable. A policy of insurance on goods, against loss by fire, was effected in the name of G. F. & Co , II. F., the plaintiff, having afterwards become the owner of the goods, the agent of the Company made and signed the following indorsement on the policy : " This insurance is hereby con- tinued in ihe name of H. F" Held, (assuming that the agent had power so to continue the assurance for the benefit of the plaintiff,) Th;it the indorsement not being imder the seul of the Company, the plaintiff could not maintain covenant on the policy. Frost v. The Liverpool., Lon- don & Globe hsunmce (h.,Hil. T. ISTI. 16— Insurance— Value— Recovery. Pliiintiff in.surod 65,000 on his interest as mortgagee, in the undivided half of a mill and machinery. The mill was burnt, and the plaintiff furnished the ageut of the Company with the preliminary proof re- quired by the policy, which he considered sufficient, and agreed to pay the loss, but requested the plaintiff to allow the Com- pany sixty days to pay it, to which he assented ; and the agent then gave the plaintiff a letter, stating that he had ox- amined plaintiff's claim ; that the loss appeared satisfactory, and that he agreed to pay it within sixty days from that date. Soon after this, one G. wrote to the agent, stating that he owned half the mill pro- perty, and claimed half the amount insur- ed, as the mill was insured to its full value. The agent thereupon wrote again to the Elaintiff, and after referring to a proposal y G that the Company should re-build the mill, stated that under any circum- stances the Company were bound to pro- tect him from loss, and that they held themselves liable to indemnify him fully. There was evidence that the mill was not worth more than half the amount insured upon it. In an action on the policy, the defendant paid $2,600 into court, and pleaded that the plaintiff's interest did not exceed that sum. The j ury were directed that the plaintiff could only recover the actual value of his interest in the mill; that if the defendants' agent, with know- ledge of the facts, had adjusted the loss with the plaintiff, and there was no fraud, it would be evidence of the amount of the loss, though not conclusive on the defen- dants. The jury found that the adjust- ment was made by the agent with a full knowledge of all the facts, or with the means of knowledge ; and that he affirmed the adjustment after he had the know- ledge. They gave no answer to questions as to the value of the mill at the time of the fire, and the amount of loss sustained by the plaintiff by the fire, but found a verdict for the plaintiff for the amount claimed. Held, That there was no mis- direction, and that the verdict was war- ranted by the evidence. Held also. That the fact that other property besides the mill, was conveyed to the plaintiff by his mortgage, as security, did not affect his right to recover on the policy. Thomson v. 77tf Liverpool, London & Globe Im. Co., Uil. T. 1871. 16— Insurable interest— Agreement for re-conveyanoe. Plaintiff being a mortgagor in possession of a mill, conveyed it a*ay by a deed, abso- lute on its face, taking an agrceuictit fur a re-eonveyance on payment of a certiiin sum which he owed the grantee. Held, That this was in effect a mortgage, and that the plaintiff had an insurable inter- est. Kelly v. The Liverpool, London and Globe Ins. Co., Ilil. T. 1871. 17— Other insurances avoiding policy- Meaning of condition. One of the conditions of a policy declared that it should be void in case any other insurance was made on the property, un- hiss notice thereof was given to the Com- pany. Meld, That this only referred to other insurances made by the assured, cr with his knowledge or consent; and nut to an insurance made by his mortgagee. without his knowledge. Ibi^J. M-No Tra A polio; bed the' » port o in the \ was no woidso INSURANCE. 233 18— Polioy-^Constraction—Time riak. A policy of insuranoe on a veesel " for four calendar monthB on a fishing voyage, beginning the adventure from the 11th June instant, and to continue until the said expiration oif four months," without stating where the vessel was to sail ftom, or whither she was to retam, is a time risk, and is not terminated by the vessel returning from a fishing voyage within that period. Dimock v. New Brutmcick Marine Atmrance Company, 3 Kerr65i. 19— Fire polioy— Inorease of riak. A policy of insurance against fire upon a dwelling house, contained a condition that if, after the insurance was efiected, the risk was increased by any means within the control of the assured, or if the build- iug should, without the assent of the assured, be occupied in ai;y way so as to render the risk more hazardous than at the time of insuring, the insurance should be void. Held, That the assured afler- wards ceasing to occupy the house with- out any fraudulent intent, was not an increase of the risk within the meaning of the condition, unless it was proved that under the circumstances and situa- tion of the building insured, its destruc- tion by fire was more probable when unoc- cupied, than if the assured had continued to reside in it. Fojf v. The JEtna Ins. Co., 3 AU. 29. 80— Signini; by aooredited Agent- validity— Prima fboie proof— Corporate seaL A policy of insurance of a Foreign Com- pany declared that it should not be valid until countersigned by W. the ageot at Saint John. In an action on the policy, proof that it was signed by W. and that he acted as the agent of the Company at Saint John, and had paid a loss on a simi- lar policy, is sufficient under the Act 13 Vic. c. 37, if uncontradicted, to shew that he was the accredited agent of the Com- pany, and to dispense with proof of theit corporate seal. Robertson v. The Provin- clal Mufual and General Insurance Co., 3 All. 379. 81— No Patent Ambiguity— TTflage of Trade. A policy of insuraneo on a vessel, descri- bed the voyage to bo " from St. John to a port of call and discharge and loading in the West Indies." Held, That there vas no patent «mbigui^, and that tho words af the policy iBMnt one pout both 30 for discharge and loading : and not two ports-— one fbr discharge, and another for loading. McGivem y. The Provincial Insurance Company, 4 AU. 64. Qruere, Whether, if it had appeared by the usage of trade, that a peculiar meaning was ■attached to the words " a port of oalT and discharge and loading," the policy might not have been construed aoeording to> ' unportant facts. Plaintifis applii tofendants on N 12th to insure ir vessel on a time policy for six mum lit', beginning on the 9th Sept. previous, the du on which she left Swabsea for St. Thomas, where she was then over-due. In the written ap- Elication in reply to the question " ffhcrc ound," the plaintiff's replv was " a port in the West Indies." The news of a hurricane having oooarred at St. Thomas had been published in the newspapers INSURANCE. 235 that morning, and was known to plaintiffs but not to defendants. Held, in an action to recover for a total loss, That the des- tination of the vessel and the fact of there being a hurricane at her port of destina- tion, should have been communicated to defendants, and this not having been done, the plaintiffs were non-suited. Ma- honey V. The Provimivd Int. Co., 1 Han. 622. 31— Be-In8ttranoe— Relation of iiolioy. Plaintiff's premises were insured in The London and Liverpool Company, from 2nd October 1865, to 2nd October 1866. Before the term expired he received no- tice from W., the agent at Newcastle, that the London and Liverpool Company would renew the policy on the same terms, and accordingly he paid W. the premium money, and got his receipt. A., the gen- eral agent at St. John, declined to renew the policy, and paid the premium to de- fendants, who issued a policy (taking the description of the premises from the Lon- don and Liverpool's books) dated the 16th October 1866, but insuring from the 2nd October 1866 to 2nd October 1867. The premises were destroyed by fire on the 13th October, before the policy issued; but the plaintiff did not know that he was insured by defendants until he re- ceived the policy from W., who also acted for them. Held, That this amounted to a re-insurance, and there being no fraud, plaintiff was entitled to recover ; that the policy related back to the 2nd October, and that the condition in the policy, that all facts relating to the state of the pre- mises must be disclosed, must be taken to relate to the time from which the policy took effect. Giffard v. The Qjteen Int. Co., I Han. 432. 32— Insurable interest— Widow. A widow having continued, for four years after her husband's death, in possession of a house built on land of whieh he was the lessee for years, and paid the ground rent, insured the house in her own name. No administration was taken out on the husband's estate. Held, That she had an insurable interest — 1st, as the pre- sumptive owner of the house; 2nd, as e' "utrix de son tort ; 3rd, as the widow under the Statute of Distribution. Ling- ky V. The Queen Int. Co., 1 Ilan. 280. 33-Fromise by Underwriter to pay— B[nowledge of fbots. Where it yraa proved on the trial of a case against an underwriter on a policy of insurance for a loss, that the defendant had promised to enquire as to the parti- culars of the loss, and if correct, pay it ; and that after several days he did promise to pay, the Court refused to disturb a verdict for the plaintiff, although there was evidence of a deviation, which other- wise would have avoided the policy. Rced\. McLaughlin, 2 Han. 128. S3 a— Waiver of proof of loss. Plaintiff, whoso stock of goods in his store was insured by defendants by a policy under seal, sold them to A., taking notes in payment. Subsequently, at the office of defendants' agent, and by his consent, he indorsed on the policy that he thereby assigned it to A., having sold him the goods. This assignment was entered on defendants' books, but not made under seal, and A. was not informed of it. The first note being unpaid, plaintiff, by con- sent of A., took back the goods, and pos- session of the store. They were after- wards consumed by fire. Held, That the assignment on the policy was invalid, and that plaintiff could recover under the policy for the loss. Weldon, J., ditten- tiente; Fisher, J., dubitante. Where, in an action to recover insurance, tbe defendants' witness contradicted the plain- tiff as to the value of the goods lost by fire, but the jury were properly directed as to the measure of damages, the Court refused to disturb their verdict, even though they might have given less had they been on the jury. The plaintiff's attorney testified that he met defendants' agent in the street, and said he had the proofs ready except a certificate, which he feared he could not get in the time required by the policy ; that defendants' agent said it made no difference, but to get the proofs as soon as he could. De- fendants agent denied this conversation. Held, This was evidence of waiver to go to the jury. Crozier v. The Phoenix Int. Co., 2 Han. 200. 34— Detention— Be-classing-Deviation —Seaworthiness at inception of voyage. A vessel was insured for a voyage from Dundee, Scotland, to St. John, thence to a Port in the United Kingdom. On her arrival at St. John she was placed on the blocks, repaired and re-classed, being de- tained 17 days. Held, In an action to recover the amount of the insurance, that -I I 'si 'SI •n I I m KSi astt INSURANCE. io the abeenoe of any evidence of the ves- sel having sustained damage on the voyage from Dundee to St. John, such detention for re-classing was a deviation, and avoid- ed the policy. A vessel insured for a round voyage is bound to be sufificiently seaworthy at it^ inception to make it with- out repairs, in the absence of any damage from extraordinary perils of the sen. Reed V. FhUpt, 2 Ran. 172. 86— Deviation. Insurance on a ship " at and from Saint John to a port of call and discharge and loading in the West Indies, and from thence to a port of call and discharge in the United Kingdom." The ship sailed from Saint John to Havana, discharged her cargo, and then sailed to Matanzas, another port in the West Indies, where nhe took in a cargo and sailed for Cork, and was lost on the voyage. Held, That going to Matanzas was a deviation. Mc- Givem v. Provincial Insurance Co., 3 All. 311. Qutere, Whether calling at a port for orders, before going to a port of discharge, would have been a deviation. Ibid. 89— LoBUB— Jettison— BeooTery—Oon> tribution. Where the owner of a ship is also the owner of part of the cargo, which was thrown overboard for the preservation of the ship in the course of the voypge, on which insurance was effected. Held, That such owner might recover from the insurer on the ship the average propor- tion which the ship would be liable to ooatributo to the loss sustained by such jettison of the cargo. Marht'r ..'atton, 2 Kerr 2U. '^liere the goods are laden on deck accord- ing to the custom of a particular trade, the owner thereof is entitled to contribu- tion IB general average for a loss by jetti- son. Ihid. 87— Defenoe— Previoui iniurano»— Foreign law. One of the conditions of a policy of insur- aao* was, thai if the awurod should have aajr o^Mr iasaraaM on the property, not notified to the insurers and inaorsod on the policy, the insurance should bo void. At the time of insuring his house with the delendants, the plaintiff had an insur- ance thereon in the name of M,, in an office in the State of Maine. Held, That as by the law of this conntry, neither the plaintiff nor M. could reeover on that policy, tlie defendants, in order to avoid their policy for want of notice of the pre- vious insurance, should have shown that by the law of Maine the plaintiff could recover on the policy effected by M. Mc- Lachlan v. The ^Ina Insurance Com- pany, 4 AC 173. SB— Requisite proof— Preliminary proof —AmdaTit. — Materiality of description. One of the conditions of a policy of insur- ance required, that all persons sustaining loss should give notice to the agent^hrough whom insured, and within one month uftcr the loss, deliver in as particular an account thereof as the nature of the case would admit, and, if required, make proof of the samo by their oath or affirmation, and by the production of their books of account, etc., and should, if required, procure a certificate under the hands of three of the nearest householders, etc. The plaintiff having sustained a loss, furnished an affi- davit and certificate in the terms of the condition, without being required to do 80. In an action on the policy, one of the notices of defence was that the proof and certificate required by the condition were not given by the plaintiff after the alleged loss; but the defence on the trial was, concealment at the time of effecting the policy. Held, 1. That the affidavit and certificate were admissible as part of the preliminary proof 2. But if not strictly admissible, it was immaterial evidence, and therefore no ground for a new trial, Perkins v. The Equitabh /hfuranc-e Co., 4 All. 562. The plaintiff in his application to insure n building, stated that it was owned by him- self and P., and worked by thorn as n mill. At that time the mill was in the posses- sion of a tenant under a leaso fur ti7« years, was mortgaged to its full value, aud a liae of railway had been laid out through the land, for which the plaintiff cluiuiod damages, alleging that it destroyed the mill. There being nothing in the pulley requiring such matters to bfl described, it waa left to tho jury, and they found, that the non- disclosure was not material. Held, That those questions were properly left. Ibid. 80— Antirers to questions— Warranty. An Insurance Company required iipplica- tions for insuranoe to be uiadu on printed forms containing certain questions which wore to be minutely answered, and wore INSURANCE. INSURANCE BROKER. 237 declared to form the basis of the insur- ance. One of the questions wao : " Is the property involved in law, or mortgaged ; if the latter, to whom, and for what amount?" The answer was: " There is a mortgage on the house for £300" — which was untrue. This application was referred to in the policy, one of the con- ditions of which was, that if the buildings were described otherwise than they really were, the insured should not be entitled to any benefit under the policy. Held, 1. That the answer to this question amounted to a warranty, and being un- true, rendered the policy void. 2. That being an essential part of the contract, its materiality was not a question for the jury. Marshall v. The Times Fire Ins. Co., 4 All. 618. of 40— Months — Oommenoement action— Issue of writ. A policy of insurance is a mercantile in .strument; therefore the term "Months" used therein, limiting the time for bring- ing an action for a loBS, means calendar months, Pomares v. Provincial Insur- ance Co., nil. T. 1873. Where one of the conditions of a policy de- clared that no action should be brought thereon, unless within 12 months after the loss ; it will be presumed, in the ab- sence of evidence of the time the writ actually issued, that it issued on the day it bears date. Ihid. 41— Loss payable to plaintiff— Action— Oonditions— Partial loss— Prelim- inary proof— Deviation — Suspi- cious circumstances— Fraud left to Jury. Where the plaintiff procures an insurance un a vessel belonging to M., and by the terms of the policy the loss is to bo paid to the plaintiff, he may maintain an action thereon in his own name. Dimock v. The New Brunswick Marine Assnrnnre Company, 1 All. 398. By the conditions of a policy the insurers agrord to pay within sixty days uiler proof of loss, etc., but that no partial loss should be paid for unless it exceeded five per cent. The plaintiff delivered the master's protoat describing the loss, and the corti- noato of a ship carpenter that the vessel wuH not worth repairing. Held, 1. That there was sufficient proliuiinary proof to unublu the plaintiff to recover for a partial loss, and that a oortifioate from the custom house that thn register of tho vessel had been deposited there as a condemned ves- sel, was not necessary. 2. That the plain- tiff might recover for a partial loss, though be claimed a total loss ; and that in the absence of any evidence by the defendant of the extent of tho injury, there was suffi- cient evidence to sustain a verdict for a partial loss, though the vessel was after- wards partially repaired, and the value of the repairs was not shewn. Dtmuck v. The New Brunswick Marine Assurance Company, 1 Alt. 398. Whether going to Saint Stephen on the river Saint Croix was a deviation, or in prose- cution of the necessary purposes of a fishing voyaj^e, upon a time policy, was considered a question proper for the jury upon the evidence. Ibid. Though the circumstanL\:j of a loss are sus- picious, if there is sone evidence of its being accidental, which is uncontradicted, and the question of fraud has been fully left to the jury, who find for the plaintiff, the verdict will not be disturbed. Ibid. Deposit of Policy of Insurance — Mortgage right — Equitable claim. See Equity 3. Action on Policy — Fire Insurance — Inter- est — Conditions — Preliminary Proof — Pleadings — Averments — Waiver. See Pleading I. 37. Assignment of Policy — Consideration to support Dromise by Insurer to Assignee. See Pleading I. 39. Defence — Deposit of Qunpowdef contrary to Provisos — Plea — Replication. See Pleading II. 9. Objecting m pay loss on different ground than want of preliminary proof — Waiver. See Waiver. Seal of Company when not necessary — President and Secretary — Prima Facie evidence of iippointmeut. See Evidence VI. 5. INSURANCE HROKER. Action by— Be-insuranoo— Money paid — Bvidenoe. Policies of insurance offcotod by a broker, declared that preliminary proof and evi- dence of the loss wore to bo given to the broker, and payment of losses to bo made within sixty days thcroattor. Tho prac- tice of tho broker was to rccoivo the pre- miums in money or notes, Otoditing tho underwriters with tho amount, whether I* ■ :i :1 :■■ ■ i i - 1 1 - 1 238 INTEREST: INTRUSION. actually paid or not, the assured being liable to hiui alune for the premium Proofs of losses were furnished to the bro- ker froui time to time, und on bein^ sat- isfied of their correotness, he pi. id the amounts, oud the policies were cancelled. Half yearly accounts were furnished by the broker to the underwriter, containing full particulars of all the risks, premiums, losses and charges, to which he made no objection until the account was rendered shewing the balance claimed in this action. Held, 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 de- fendant had authorized the broker to decide upon 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 pre- mium of a re-insurance effected for him without proof of actual payment to the underwriter. Ranney v. Grtujory, 1 Han. 152. INTEREST. Covenant to pay for iinprovomonta — Plain- tiff entitled to interest on amount ap- See Landlord and Tenant VI. 2. 1 — Interest is not recoverable in the nature of damages in an action for money had and received, brought to recover an amount of duty illegally exa' -ed at the Treasury. Ilamnwnd v. Jiobituon, 1 Kerr 296. 2 — Interest cannot bo recovered on a bond given to secure the payment of iustal- mects of stock in a Joint Stock Company, under the Act 5 Wm. 4, o. 48, though the bond is in a penal sum conditioned to secure the payment of a lesser sum at u certain day. St. Jahn Bridge Com- pany V. Woodward, 1 Kerr 29. 3 — Where a verdict was obtained on a policy of guarantee, including interest up to that time, and a rule nisi lor a new trial was granted, and utterwards dis- charged ; interest was allowed on the amount of the policy, (but not on the amount of the verdict,) from the date of the verdict till the rule was discharged, under the Act 12 Vie. c. 39, s. 29. Commercial Bank v. The European Auurance Society, J/il. T. 1871. 4 — Notice should be given of an application to be allowed interest on the affirumnco of a judgment in error. See Mills v. Vail, 4 All. 629'. Excessive Claim — Mortgage— Payment — Morturagor allowed interest. See Mort- gage 14. INTERLOCUTORY JUDGMENT. See Judgment by default. " Practice V. 30, 31. 32. " " VI. 16, IG, 17, 18. ' Vn. 10, 11, 12 INTERROGATORIES. See Evidence. INTESTATE. See Heir ut Law. INTOXICATING LIQUORS. See Justice of the Peace. (Summary Cod- viction.) INTRUSION. \ 1 — If on the trial of an information for in- trusion 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, Jao. 1, o. 14. Hex v. Watson, mi. T. 1828. 2 — The Crown granted to the defendaut the right to occupy land for twenty one years, unless the same should bo 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 defendaut, and refusal to give up possession, that no inquest of office was necessary to terminate his right, his removal not being founded on any broach of condition or forfeiture. Reg. V. Hebert, 2 All. 427. 3 — Semble, That a notice to the defendant that the Government required the laud, signed by the Surveyor General of Crown Jjand in his official character was suffi- cient, without proof of any previous au- thority from the Government to give the notice. By subsequently laying out tlio land into lots and granting it, the Quv- ernmont recognized the authority of the Surveyor General to give the notice. Ibid. 4 — The right to the soil between high and low water murk in a navigable river being See Practice See Evidence JOINT TRESPASS. JOINT STOCK COMPANY. 239 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 defence the public right of navigation ,ver the place, his building not having been placed there in the exercise of any ' ach right. Reg. v. Taylur, Ilil T. 1862. 6 — Quxre, Whether damages can be re- covered, unlcx" "hey are alleged in the inforniarion. '^ui, iRiti.auL.\RrrY. See Practice VII. ISSUE (NO PLEA). See Practice VII. Of Writ. See Writ. INVENTORY. See Evidence VII. 4. JEOFAILS. See Error (Writ of). JETTISON. See Insurance 36. See Shipping Law. JOINT DEBTORS. See (Scire Faciat. JOINT LIABILITY. See Contract 9. All not served with Process. Sec Practice VII. 8. See Practice IV. 5, 6. Infant not served — Judgment Sa'. t Faciat. See Infant 6. JOINT INDICTMENT. See Criminal Law. JOINT TENANCY. Conveyance of Land by grantor to himself and others. See Deed 1. 26. JOINT TRESPASS. See Trespass II. 9, 10. Separate Acts — Abandonment. See do. IL 8, 12, 13, 26. Joint CoavorsioD. Soo Trover 24. JOINT STOCK COMPANY. See Assessment. 1— Calls— Lapse of time— Instalments. The Act 5 Wm. 4, c. 48, incorporating the St. John Bridge Company, required thirty days' notice to be given of the calls for the payment of each instalment of the capital stock, and that no greater amount than ten per cent, should be called in at any one time Held (Chipman, C. J., dissent iente), That the full time of thirty days must elapse between the time ap- pointed for the payment of each instal- ment, and that it was not sufficient, in one notice, to call for payment of several iustuluients at intervals of loss than thirty days. Held also (^per totam curiam), That though one call could not be en- forced for want of sufficient notice, it did not vitiate other calls in the same notice, where the full time was given St. John Bridge Co. v. Woodward, 1 Kerr 29. 2— Bight to sue for calls— Bye-Laws. An Act incorporating a Joint Stock Com- Sany, directed that the stock should bo ivided into two hundred shares, to bo secured in such manner as the bye-laws of the Company 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 bye-luws for securing the same should be made, provided the Directors who made the calls w.e duly appointed. Furtland and Lancaster Steam Ferry Co. V. Pratt, 2 All. 17. 8— Notice -Newspapbi-—'fime. 'I'ho Act of Incorporation required the first 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 day appointed." Held — Ist. That a newspaper containing such a notice, and having the name of A. thereto, was evidence of the notice, and that A. having attended the meeting, it would be presumed that the notice was published by his authority ; 2nd. That it was not uooessary that three weeks should elapse between tno publication of the first notice and the dav of mooting ; but that a publication in the newspaper for throu ouusocutivo weeks was sufficient; 3rd. That it would not be presumed that tho Dowspapor was published more than onoo 41 i 240 JOINT STOCK COMPANY. a week — that fact (if nintorial) should have been shewn affirmatively. IWtland and Lancaster Steum Ferry Co. v. Pratt, 2 AU. 17. 4— Ahntial Meeting— Election— Pre- flenoe of Stookholden. Where an Aet 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 cor- poration should bo 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. Tho law regulating the annual meeting should be made by the stockholders, and not by the Directors merely. Semble, That in the absence of any bye-law on the subject, an election at a meeting so onllcd, at which all the stockholders were present, and voted, would not be void Ibid. 6— Membership. A person named in the act of incorpora- tion and in the list of subscribers, who never authorized his name to be used, or held any shares in the Company, ceiiHcs to be a member thereof after the first meeting to organize tho Company, and is therefore not disqualified as a juror in an action brought by them. Portland and Luwmter Steam Ferry Vo. v. Prutf, 2 All. 17. ^-Liability to rotes. If a Joint St4)ck Company owns real estate in sevcnil Parishes, it is rnteable under 1 Uev. Stat c. 53, as a resident of that Parish in which its principiil busi- ness is carried on, and as a noti-rcsidunt in tho other Parishes. Ex parte St. tfohn Susjwugfun Bridge Co., 3 All. 190. 7— Officer summoning Jurr— Disquali- fication as Stockholder. Id an action fat calls od stock in a Com- pany, the officer who summoned the jury was a stockholder, (the whole amount not being paid up, ) but before receiving tho venire, transferred his stock to the President of the Company. The act of inoorporntion dcolured that no share holder should be entitled to transfer his stock unless nil calls were paid. Held, That ho had not diverted himself of his interest aa a stockholder. Wintdttuvk Railway Vo. V. Ttipper, 1 Ifan 464. 8- Right to sue for Assessments - Remedial Act. The plaiotiffi wore incorporated 4>y Pro- vincial Act, 27 Vic. c. 43, for tho purpose of constructing a railway from St. John to the boundary of the United States— the capital stock to bo two millions of dol- lars, and the Company to proceed to locate and complete the road as soon aa $50,000 of the stock were paid in. The Directort were authorized to make equal asscgg. ments on the shares from time to time, as they might deem necessary, to be paid tu the Treasurer, and in case any subscriber for stock neglected to p.1y the assessmcDt on his shares for thirty days after notice, tho Directors might order his shares to be sold at auction, and in case of any defi- ciency, he should bo accountable to the Company for tho balance. By Act 32 V^ic. c. 54, to amend the act of iucorpu- ration, after reciting thnt it was donbtfiil whether the subscribers for shares were legally liable tu pay assessments unless the whole amount of the capital stock had been subscribed for, and the $50,000 paid in, and also, whether the notices of assess- ments bad been given in accordance with the act of incorporation, — it was ena ;ted, 1. That the subscribers for st^tck should be liable in the same manner and to the same extent as if the whole capital stock had been lully subscribed, and as if tho $5(1,- 000 had been paid in, in the umiincr directed by tho act of incorporation, nud as if all u.>48es.suient8 on thesharts uud th. III. D18OBKT10NABY Power at Trial. IV. GERTiriOATB or JUDOE. RcviEWiNO Decision of. (See Trial.) 1 — ^The Court wil) not review the decbion of a Judge refusing an amendment at nui priiM, unlesa satisfied that injustice has been done by hia refusal. See Mc- AUiiter v. 2>ay,.4 AU. 37. n. Power at Chambers. 2 — A Judge at Chambers has power to grant fVirther time to plead in abatement. See Rou V. Hammond, 3 Kerr 631. 3 — Where damages were assessed by Judge at Ohambera m a default cause on an iniuffioient affidavit as to some items, the Court reduoed the awMssmeut to amount warranted by affidavit. iScouBar v. Webb, 1 Ktrr 520. III. DiSORBTIONART POWEB AT TbIAL. Discretionary power as to reception of evi- dence at trial. See Evidence VIII. IV. Cebtifioate of Judob. 4— Finality of Deoiaion. When a Judge having a discretionary power, grants an order to the plaintiff on the trial of a cause for full costs, his de- cision is final. Sturk$ v. Malcolm, 3 Kerr 581. 6— Time— Ap|»Moation. An applic^ntic::^ to the Judge who tried the cause for a certificate to deprive an acquitted defeu nisi prii^ is bound to take judicial notice of the signature of another Judge of the Court. McKemie, Curator, dtc, V. Scovil, 2 Han. 6. 7— Judgment BoU. Quatre, Whether the Court could judi- cially notice an indorsement on a judgment roll of a rule setting aside the judgment. See Wihon v. Andrews, 1 All. 715. Public Law—- Authority to fepair Stveeta. See Pleading I. 62. JUDGMENT. I. Gknerally. II. Offbr to scffkr Judomknt bt DEFAULT. III. Judgment (Foreign). I. GSHSaALLT. Plaintiff's remedy on, not lost by proceed- ing against Sheriff. See Discharge 2. 1— Satisfaotion of— What amounts to. Where the defendant, after judgment, indorsed a note of a third ptrty to the plaintiff, to be collected by him, and the proceeds applied in payment of the judg- ment, accompanied also by a request that the plaintiff would carry on the suit against such third 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. Held, That this was a satisfaction of the original judgment. Sewell v. Burpee, 3 KerrZSi, a— Suspension of remedy on— Tkddng negotiable note. Where a ne^tiable note it given as col- lateral security fbr a debt secured by a judgment on a warrant of attorney, the remedy on the judgment is suspended until the maturity of the note : and where the creditor had transferred the note, and it had been mislaid, the execution on the judgment was suspended until the defen- dant was indemnified against his liability on the note. Hardy r. iVtce, S AU. 264. 3— Lien. A judgment is not such a lien on land as to prevent the judgment debtor firam eonveying the legal estate and seisin to a third person. (See Act 8 Geo. 4, e. 87.) Doe ho amount ton- JUDGMENT AS IN CASE OF NON-SUIT. 246 dered was moro than the value of the goods and interest up to that time, the plaintiff was only entitled to costs up to the tiuio of the offer, and that the defen- dant was entitled to the subsequent costs. Belyea v. Stephenson, Mich. T. 1866. Offer to suffer judgment in suit brought under 02nd and 93rd sections of Insolvent Act of 1869. See Insolvent Act of 1869. 8. ni. Judgment (Foreign). 1— Not debt of record. A foreign judgment is not a debt of re- cord, but only evidence of a debt ; and the simple contract on which it is found- ed, is not merged in it. Fergus v. Ward- law, 3 Kerr 665. 2— Pleading in Bar. The judgment of the Canadian Court in a suit between the hired men and the plaintiff relative to timber, is no bar to an action against the defendant for a tort committed by him before the timber came within the jurisdiction of Canada. Mc- Millan V. Ritchie, 2 All. 242. If the proceedings in a foreign Court do not operate as an estoppel, this Court may inquire into the grounds of the judgment. mi. The whole of the proceedings in a suit in a foreign Court should be produced to prove the judgment. Ibid. 3— Action on— Seal— Proof— Jurisdio- tion. No action will lie in this country on a foreign judgment, if the defendants were not resident within the jurisdiction of the foreign Cuurt, and had no property or agent there, and were neither served with process in the foreign country, nor de- fended the suit ; though they were served in this country with notice of the pen- dency of the suit, and the judgment may have been obtained according to the practice uf the foreign Court in similar caBes. Cyr v. San/acon, 2 All. 641. It is sufficient that the seal affixed to a foreign judgment is the seal used by the foreign Court, though it purport on its face to be the seal of a different Court from that in which the judgment was ob- tained. Ibid. (SeoSchibsby \>. Westeuholz, et. al., 6 Q. B. 165,L. R.) 4— Authentication of. The judgment of a foreign Court is not sufficiently authenticated by a copy certi- fied to be correct by the clerk, although the clerk's signature and authority are verified 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 t. HiU, 2 Kerr 184. Judgment of Court of King's Bench in England— Proof of. See Evidence II. 17. JUDGMENT AS IN CASE OF NON-SUIT. I. Matters Relating to Practice. II. Answers — Excuse — Sufficiency — Insufficiency. III. Discharging Rule on Peremp- tory Undertaking — Answers — Enlarging Rule. I. Matters Relating to Practice. 1,— Entertaining Motion— Oomplianoe with BiQe 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 6 Wm. 4, have been complied with. Har- ris v. Beamont, 2 Kerr 172. 2— Bemanet. Where a cause has been entered for trial, and made a remanet, the defendant can- not move for judgment as in case of a nonsuit for a subsequent default. Embree v. llatheway, Triii. T. 1827. 8— Not proceeding to Second TriaL Where a cause bus been tried and the verdict set aside, judgment as in a cose of a nonsuit cannot be granted for not proceeding to a second trial. Turner v. Cntnc, 7Vm. T. 1831. 4— Subsequent notice after Bemanet. Where a plaintiff has once taken down his causo to the assi/es, and it has been made a reuiauut, tiie defendant cannot obtain judgment as in case of a nonsuit, though the plaintiff may have given a subsequent notice of trial, on which he has made default. Bennett v. Stock/ord, 1 Kerr 300. 6— Fresh Default. A cause wus entered for trial at the Cir- I ouit in 1865, and struck off, and thQ 246 JUDGMENT AS IN CASE OF NON-SUIT. pluintiff paid the oosto of the day No notice of trial was ^ivcD for the next cir- cuit. Held, Thut this was a fresh default, and that the deteiidaut was entitled to judgment as in case of a non-suit. Thom- son V. Keith, Mich. T. 1866. 6— Time. There is no limit of time for a defendant to move fur judst8 of day. Where a motion for judgment, as m case of a nonsuit, was pending, the Court dis- charged with costs, a motion for costs of the day for the same default. Steven* v. Hamilton, 1 //an. 335. 17— Defect in affidavit. The Court refused without costs, a rule for judgment quasi non-suit, for not pro- ceeding to trial pursuant to notice, where the name of the Commissioner was omitted from the Jurat in the copy of the affidavit stating the plaintiff's default, served on plaintiff's attorney. Belyea v. Hamm, 2 //an. 26. 18— Joinder of Issue— Affidavit. An affidavit stating that issue was joined as of Michaelmas term last past is prima facie sufficient to support a motion fur judgment as in case of a nonsuit. JUDGMENT AS IN CASE OF NON-SUIT. U7 10-Term8 elapsing. There is no arbitrary rule that two terms or two dssizes should pass after issue joined in order to sustain a motion foi judgment as in case of a non-suit for not proceeding to trial, according to the prac- tice of the Court, but the plaintiff is bound to proceed to trial at the first nisi print held next after the term immediately suc- ceeding that in which issue is joined, pro- vided there is sufficient time to give notice of trial. (See next cases.) Uprague v Mattheiee, Ber. 433. 20 — A plaintiff is bound to try his cause at the first Circuit after issue joined, unless issue be joined of the term immediately preceding. Samuel v. JdcAmlrews, Ber. 278. 21 — ^Wbere issue is joined in vacation, it refers to the next subsequent and not the preceding term, although joined as of the preceding term; in such case therefore judgment as in case of a non-suit cannot be moved for until two terms have elapsed after issue joined. McDonald v. Ryder, 2 Kerr 645. 22 — Where issue is joined in vacation, two subsequent terms must elapse before judg- ment, as in case of a non-suit for not pro- ceeding to trial pursuant to the practice of the Court, can be obtained. J/c C'lelan y. JUcCklan, i Kerr 223. 23 — Aft«r 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 judg- ment as in case of a non-suit for not pro- ceeding to trial according to the practice of the Court. Oliver v. Campbell, Hil. T. 1871. 2i-Limit of time for motion— Term's notice. There is no limit of time for a defendant to move for judgment as in case of a non- suit; nor is a term's notice necessary where four terms have elapsed without any proceedings. Scoullar v. Payaon, Trin. T. 1833. 25-Batry of cause. Judgment as in case of a non-suit cannot be signed unless the cause has been duly entered by the plaintiff in the Clerk's office. MiUer t. Wddon, 1 Han. 376. II. Anbwkbs — Exovsx. 1— Suffioienoy. An affidavit of the plaintiff, stating tbat the record was withdrawn at the trial " because he was advised by counsel that the testimony of one W. B. was material and necessary, and that the said W. B. now resides at Boston in the United States, and the plaintiff hopes to be able to procure his testimony at the next cir- cuit." Held, A sufficient excuse on the first default. Desmond v. Yeomanx, 3 Kerr 71. 2 — ^The absence of materiitl documentary evidence, which belonged to a person who ' was willing to produce it, but could not then procure it in time fur trial, is a suf- ffcient excuse in opposing a rule for judg- ment as in case of a non-suit. Doe d. Scott V. Kinff, 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 the amount in controversy, is a sufficient excuse for the plaintiff not taking his cause to trial at the first assizes. Scovil v. Eatoji, 3 Kerr 73. 4 — The affidavit, iu answer to a motion for judgment as in case of a non-suit, stated that the case arose out of oiroumstances similar to those existing in a case of W. against the defendant in this suit, tried at the same assizes, and the plaintiff with- drew the record in consequence of the Judge who tried the cause having decided the question of law against W. A motion for a new trial in that case having been refused, and the facts shewing that the plaintiff in this case could not recover, the rule for judgment as in case of a non-suit was granted. White t. McDon' aid, 3 Kerr 220 6 — In answer to a motion for judgment as in ease of a non-suit, the affidavit of the plaintiff's attorney stated that a commis- sion 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 commission had been received, and would be executed ; in consequence of which he gave notice of trial, but was obliged to countermand the same, the commission Aot 248 JUDGMENT AS IN CASE OF NON-SUIT. having been returned ; that the plaintiff residing at W. had since written to the other plaintiff, assigning as a reason for not exeoutiag the commission, his neces- sary absfinoo on pressing business, and the residence of one of the required witnesses at a distance from the place where the commissioners resided ; and stating that the commission should be executed and returned. Held, A sufficient excuse. Doe dem Mc Tavith v. Roulxtin, 3 Kerr 221 . 6 — It is a sufficient excuse for not proceed- ing to trial, that the defendant has since the oomniciiocuient of the action taken the benefit of the Insolvent Debtors' Act ; , and in such case, a motion fur judgment as in case of a non-suit will be dismissed with costs, unless the defendant consents to a stet processus. Kelchum v. Murray, 2 All. 94. 7 — The absence of a material witness from the Province during the sitting of the Court, is a sufficient answer to a motion for judgment as in case of non-suit upon the first default. Kirk v. fat/ne, 1 Kerr 525. 8 — It is a sufficient answer to an application for judgment as in case of a nun-suit in an action of trespass qw. cl. /reyit, that the plaintiff's attorney had by mistake laid the venue in the wrong ocunty — the plaintiff offering a peremptory undertak- ing and paying costs. Petera v. Drawyer, 3 All. 432. 9 — Where plaintiff, after notice of trial, was induced by the defendant to agree to refer the cause to arbitration, a motion for judgment, as in Ciise of a non-suit, was refused with costs. McDonald v. Mclntyre, Ber. 280. 10 — Where a cause was entered for trial, and withdrawn on an agreement to refer, which the defendant afterwards refused to carry out, an application for judgment as in case of a nun-suit was refused with costs. Hanson yr. Gove, JTil. T. 1863 11— Insuffloienoy. Judgment as in case of a nonsuit, for not proceeding to trial pursuant to notice, will be granted, although the plaintiff be- came bankrupt, and an assignee appoint- ed. Hammond v. Wheeler, 2 Kerr 569. 12^Where the cause had been at issue, and noticed for trial mure than three years, and the only excuses offered for the delay were a hope that had been entertained of avoiding the expense of a commission by getting the cause referred to arbitration, but which was finally re- fused — an iniention to apply for a cudj- mission, and a belief that the cause would be ready for trial at the next circuit. Held, Insufficient to discharge a rule for judgment as in case of non-suit on a per- emptory undertaking. Fletcher v. Ifip. pesley, 3 Kerr 299. 13 — An affidavit of the plaintiff's attorney, stating that he sent the nisi 2>riiis record to the circuit for entry, but when he arrived there discovered it had not beea received, without stating when or how it was sent, is not sufficient to discharge, on a peremptory undertaking, a rule for judgment as in case of a non-suit, for not proceeding to trial at such circuit pursuant to notice. Kinnear v. Watfs, 3 Kerr 440. 14 — An affidavit stating that the depnoent was informed and believed that the dcfen- daut had run off to the United States without leaving any property in this cujd- try, is no answer tu a motion for judguicut as incase of a non-suit. McGarriyle \. Smith, 1 All. 509. 15 — Where the plaintiff did not try his causo in 1849, in consequence of the absence of a witness, it is no excuse for not going to trial at the circuit in the following year; that during the summer of 1849 the de- fendant expressed a wish to the plaintiff's attorney to settle the suit amicably — the plaintiff not appearing to have assented thereto, and not stating any intention to go to trial. Wetmore v. Wood, 1 All. 703. 1 6 — It is no answer to a motion for judg- ment as in case of a non-suit, that the plaintiff instructed his attorney to send him subpoenas for his witnesses, ailer the opening of the Court at which the cause was entered for trial, and that in conse- quence of not receiving the subpoenas, he was unable to get the necessary witnesses. Curran v. Gilnumr, 2 All. 87. If a sufficient excuse is offered, it is admis- sible in a qui tarn action as well as in any other ; but in judging of the excuse, the Court will not altogether lose sight of the nature of the action. Jlid. 17 — Notice of trial was given for the circuit in 1850, and countermanded in cuuse- quenco of discovering that a material witness was in England ; notico of trial JUDQMENT AS IN CASE OF NON-SUIT; 249 was agaio given for the circuit in 1851, but the cause was not tried, a commission which had issued to examine the witness iu England not having been returned. It was not stated that the commission had issued in time to be returned before the circuit, ^eld, That the defendant was entitled to judgment as in case of a DOD-suit. Ritchie v. Porter, 2 All. 360. 18 — It is no excuse for not proceeding to trial according to notice, that the plain- tiff's attorney was so much engaged in the House of Assembly as to be unable to attend the trial, and that the counsel spoken to on the previous day to try the cause, was occupied in another Court — it not appearing tnat the counsel was pre- vented attending by any unforeseen cause, or that no other sufficient counsel could be procured. Ettabrookt v. Tapley, 2 AU. 454. 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 effijrt had been made to pro- cure his attendance or his evidence, is not a sufficient answer to a motion for judgment as in case of a non-suit. Nich- oisoH V. Markt, 3 All. 21. 20— Service of a rule to discontinue, with- out payment of the costs, will not prevent the defendant from obtaining judgment as in case of a non-suit. White v. Bar- ton, 1 ilan. 1. 21 — An affidavit of the plaintiff 's attorney, stating the absence of a material witness, and his belief that the testimony of the witness could be procured at the next cir- cuit, is not sufficient to oppose a rule for judgment as in case of a non-suit tbr not going to trial pursuant to notice, without stating the grounds of his belief, or shew- ing the.t anything had been done to pro- cure the attendance of the witness ; but time was allowed to obtain further affida- vits. MitcheU V. Cuppage, Ber. 277. III. DiscHAROiNQ Rule on Peremptory Undertaking — Answers Enlaro- iNO Rule. 1— An application for judgment as in case of a nuu-suit for not proceeding to trial Eursuant to notice, is sufficiently answered y showing that the plaintiff was ready 32 and desirous to proceed to trial, but was Srevented from doing so by the defen- ant's attorney objecting to the insuffi- ciency 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. Mc- Donald r. Ryder, 3 Kerr 218. A mistake in reference to an almanac in giving the notice of trial, which was de- fective, the plaintiff being ready at the Court with conasel and witnesses to try the cause, and the refusal of the defen- dant's attorney to waive the objection to the notice, is a sufficient excuse on a first de&ult for enlarging a rule, on a peremp- tory undertaking. Ibid. 2 — Where in an action against the Sheriff, the plaintiff's attorney issued the vtnire to a Coroner who was connected 'vith 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 discharged a rule for judgment as in ease of a non- suit, on the plaintiff's giving a peremp- tory undertaking and paying costs. StiUi V. GUbei-t, 3 All. 262. 3 — It is a sufficient answer to an applica- tion for judgment as in case of a nonnsuit in an action of trespass on cl. fregii, that the plaintiff's attorney nad by mistake laid the venue in the wrong county— the plaintiff offering a peremptory undertak- ing and paying costs. Peters v. Drawyer, 3 AU, 432. 4 — Issue was joined in 1854, and by the consent of the defendant's attorney the cause wan not tried during the following year : no further proceedings having been taken, the Court, in Hilary term 1858, dismissed a motion for judgmept as in case of a non-suit, on the plaintiff's giving a peremptory undertaking to try the cause — it appearing that he had a good cause of notion, and the defendant not stating any defence. Doe v. Senlill, 4 All. 58. 5 — Where two defendants had appeared and pleaded by separate attorneys in two suits brought by the same plaintiff, and notice of trial had been given in one suit for the Sittings after Hilary term 1859, bi^t it was not tried, in consequence of one of the defendants having compromised the suits, the Court rel\ised a rule for judg- ment as in case of a non-suit on appiioa- 250 JUDGMENT AS IN CASE OF NON-SUIT. tion of the other defendant, on the plain- j^ tiifeotering a $tet procetmts and defraying j the coBts of the ajpplication in both cases, . aod the ooBts of the da^ 'n the ''uit in .^ Vwliich notice of trisl hai been given. \ Sankw ▼. Andenon, 4 All. 635. 6-^It is rafioient groimd for enUrging a per- :r emptbrj mndertaking, th»t the plaintiff, c who olaimed under % will, ..as unable to V discover the residence of the sabscribing \. witness. CohmU t- Hal^, 4 AU. 636. 7 — Where the plaintiff' countermanded no- tice of trial twice, first, because the pre- siding Judge at the Court was incapable from interest from trying the cause, and secondly, in consequence of the absence of the plaintiffV counsel fh)m the country, a rule for judgment as in case of a non- ) suit was di'jcharged on a peremptory un- dertaking. Shepherdv.l{aliett,lIIanA3. 8— In answer to an application for judgment : as in case of a non-suit, where the cause bad not been tried in consequence of a challenge to the an-ay, the plaintiff's attorney stated, that ho did not issae a ventre to the Coroner, in consequence of a statement of the defendant's attorney leading him to believe that there was no relationship between the Sheriff and the defendant, the Court ordered the appli- cation to 3tand over, in order that the ' defendant's attorney might answer the affidavit. Hoj/t v. Stockton, 1 Han. 327. 9 — An affidavit stating the temporary men- tal derangement of a witness, and his subsequent recovery, is sufficient to dis- charge a rule for judgment as in case of a non-suit, upon giving a peremptory undertaking and pacing costs. Samuel V. SttWtderi, Bar. 278. 10 — An affidavit of the plaintiff stating that he left the country on important hn^iness expecting to ret'7^n in time fbr the trial, but was unable to do so, is not a sufficient answer to a motion for judgment, as in case of a non-snit. The affidavit should state all the ctrcumsiAnces which jprevented the plaintiff's return, in order that the Court might judge ■vhcthrr his conclusion of inability to return was justified. De$- bri$ay v. Livinij$ton, Mil. T. U'62. 11 — There is a distinction between cases where the record is withdrawn in couso- quenco of the absence of the plaintiff, and where it is caused 'uy the absence of a third party. Ibid. 12 — An action of Dower, uuder the Act 21 Vic. c. P5, was not tried because the de- fendant's counsel objected, and the Judge thought it could not be tried by tho com- mon 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, wr s refused, without costs. Doe d. MeOnUough v. Dowd, Mich. T. 1862 13— Peremptory undertaking. A peremptory undertaking will not be discharged on an affidavit statirg that the defendant had left the Province, and had stated that he did not intend to return. Leslie r. Roe, Ber. 32. 14 — A peremptory undertaking will not be enlarged merely on the ground that when the cause was called on for trial, a witness who resided in town, was not in Court, and therefore the record was with- drawn. Doe dem Kinnear v. WiiuxU, Bert. 127. 16 — ^The Court will enlarge a peremptory undertaking to go to trial wnere suspi- cion attaches on tho defendant that he has been instrumental in keeping material witnesses out of the way of being served with subpoena. Robcrtton v. Crandall, 1 Kerr 56. 16- -Where the defendant had given notice of trial by proviso, rnd had aftervrards countermanded it when it was too luto for the plaintiff to give notice; the Court enlarged a peremptory undertaking, the plaintiff appearing to have been uiisicd by the defendant's notice. Gilhert v. Gooden, 2 Kerr 374. 17 — A peremptory undertaking will not be enlarged unless the plaintiff shew that he has used all reasonable and ordinary means to fulfil it. McDonald v. Thmp- » », 2 Kerr 700. 18 — Affidavit of the plointiff's attomoy stated that ho did not f:;o to trial nt the Court at W. because he understood that an objection had been sustained to the legality of the jury by the Court at Saiut Joitn, in oonsequenoe of the Shoiiff not having filed a list of persons quuli6ed to serve as jurors; and knowing that the Sheriff of W. had not filed any list, he expected a similar objection would be taken by the defendant. Held, A siii- ciont ground for enlarging a porouiptdry undertaking. Sidell v . Be$t, 3 A'err 64ii. JUDGMENT BY DEFAULT. 251 The plaintiff being in contempt for non- payment of the costs incurred by his first default, it was made a condition of en- larging the rule that those coste, the costs of the day on the second default, and the costs of the motion, should be paid within a month. Sidelt v. Be$t, 3 Kerr 640. 19— A rule absolute for not proceeding to trial according to peremptory undertak- ing, cannot be moved for until the term succeeding the sittings in which plaintiff undertook to bring on the cause, notwith- standing time has gone by for giving notice of trial. The plaintiff may move for enlarging the undertaking during the term. The condition is not broken until time for trial is past. Grove* v. SUwn, 1 Kerr 102. 20— A peremptory undertaking will not be enlarged on the ground that the plain- tiff'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. Wins- low, Mich. T. 1833. JUDGMENT BY DEFAULT. See Interlocutory Judgment. " Practice X. I -Signing of— Plea treated as a nuUity. In a summary action on a p aissory note, the defendant pleaded as to part, that the plaintiff had sustained damage by the non-perfbrmanoe of the promises to the amount of £7. 98. which he con- fissed and was ready to pay ; and as to the residue non-assumpsit. The plaintiff treated the plea as a nullity, and signed judgment. Held, That the judgment was regular, it not being shewn that the plea was filed in time. Saj/re v. Smitn, 2 AU. 164. Quart:, Whpther such a plea was good in a Bumuary action f But if pleaded iu time, it should not have been treated as a nul- lity, ibid. Semlk, That being accompanied by a notice of set-off, the plaintiff could not have ligaed judgUicnt for the sum confessed. Ibid. 2-Setting aside— Ooeti. In Hilary term an interlocutory judgment was sot aside on payment of costs, and on terms of the defendant paving £7. 9s.>into Court within ton days after taxing coets, and if defendant would not accede to these terms, the motion to be dismissed without costs. The rule entered by the cl^rk of the Court and served on the defendant was unconditional, " that the motion be dismisised withoiit cos£s." The def^nd^nt afterwards paiover 6ee Costs II. 37. JURY. See Evidence XII. 1— Summoniiig of— Highway. Where the proceedings of Commissioners in altering a road under the Act 5 \Vm, 4, c. 2, were objected to, whereupon tho inhabitants applied to two Justicr obtain a warrant for a jury. Held, in it was not necessary that tho jury shi,,: i; be summoned from another parish. Reg, V. Commissioners o/ Ili/jhwai/s for Parkh, of Johnstot,, " Kerr 583. 2— Venire. A venire to summon twelve jurors to try a cause is correct, but as the number stated is not for the officer's guide Id summoning, ho should summon twenty- four. Jfazen v. Brj/ion, 2 All. 580. Quare, Whether thirty jurors ought not to be summoned under tho Act 13 Vic, n. 43. Ibid. (See Venire.) 3— Qualifloatlon of. A person named in tho Act of Incorpora- tion and in tho list of HubnoriberH, who never authoriied his name to be used or hold any shares in the Company, ooaiieii to bo a meoiber thereof after the lint meeting to organize the Company, nod is therefore not disqualified as a juror, in an action brought by them. Portland Ferry Company v. Jh-att, 2 All. 17. 4— Challenge of. It is not a ground of ohnllcngn to tho army, that some of tho jurorH named in tho Shoriff ';. panel are not on the list uf persons (iviifiad to servo as jurorn, filed under the Act i H Vic. o. 24. Dow and Wife V. Dibblee, 1 Han. 65. JURY. JUSTICE OF THE PEACE. 263 5 — 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 Mayor, etc., had, or claimed to have, a reversion- ary interest in the laind in dispute ; and that the Sheriff who summoned the jury, and the jurors, were Corporators of St. John — it not being alleged thai the Cor- poration of St. John had any interest in the suit Doe dem. Grant v. Boyne, 1 Urn. 431. It is no ground of challenge to a juror in an action brouglit by a Corporation, that he is in the employ of one of the stockholders in the Company. Fredericton Boom Co. V. Macpherson, 2 Han. 8. 6 — Where the Sheriff and Coroner had ma ried sisters, it is a good ground of challenge to the array, that the jury have been returned by the Coroner in a cause where the Sheriff is defendant ; and the death of the wife of the latter without issue docs not destroy the affinity. Oul- ton V. Morse, 2 Kerr 77. The objection, however, not having been taken by the defendant until the cause was called on for tr: 1, 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 wore returned was mi rried *o a sister of the person who was ' ecurity for the costs, and who had aided the plaintiff with monev to carry on the suit ; hut the Court would in such case, on application by the defendant, award the venire to th.? Coroner. Murchison v. Mar$h, 2 Kerr 608. 8 — The defendant may ohalhnge the array if affinity exists between the Sheriff who summoned the Jury and himself. Wet- more v. Levi, Trin. T. 1861. 9-IllneM of-Tplal— Waiver. Ifoneut the jury is taken ill during a trial, the JuJgo cannot, without consent of the parties swear another juror in his plnoo, and oonunue the trial. The objec- tion 'H not waived by the r'.efondant's counsel at)t«rwardB addressing the jury. Noble V. Bitlini/i, A All. 86. lO-Diiqualifloation. Thu fact of a man being in the omploy- iiiimt of a stockholder of an Incorporated Company, does not disqualify him irom serving as a specinl juryman in the trial of a case to which the Company is a party. Fredericton Boom Co, v. JicFherton, 2 Han. 8. A challenge for cause to a special juryman must bo supported by affidavits. (Per Weldon, J. vA Nisi Friwi.') Jury of View — Lodging and boardin'^ with plaintiff. See New Trial III. 46. ^ Speoial Jury— Talesmen. Talesmen may be sworn on special jury. See Rankin v. Godard, 4 All. 166. Striking Panel — Abandonment of Ri le. See Practice VII. 1. JUSTICE OF THE PEACE. I. Courts. II. Jurisdiction in Civil C^bes. III, DuTiKs — Liability. IV. Summary Convictions. A. Jurisdiction. B. Information. C. Proceedings for Penalties. V. Convictions. VI. Qenerally. VII. Costs. VIII. Notice of Action. See Criminal Law — Rastardy. Courts. 1 — Courts of Justices of the Peace estab- lished by the Act 4 Wm. 4, o. 46. are not Courtn of Record. Young v. Wood- cock, 3 Kerr 564. 2 — A limited power given to a Court to fine and imprison doe^ not constitute it a Court of Record. Ibid. Power of JurliooN to oommit for contempt — Actinr; judicially are Courts of Reourd. See Crutompt. II. JURISOIOTION IN ClVir. OAUHK4S. 1— Civil Oauee— Tr«»paM to land— Title in (luestion. A Justice of the Puiiuo has no jurisdiction to try an action of trespass to land under the Act 4 Wui. 4, c. 45, where the defendant claims an int^trost in, or n right to the use of the land ; as whure thu ({uostion wan whether thoro was a public highway over the land. Sfonn v Davis, 2 All 893, 2S4 JUSTI JJfi OF THE PEACE 2 — A Justice of the Peace has not jurisdic- tion under the Act 56 Geo. 3, c. 17, lo try an action where the title to land coiues in question, and if the defendant in an action trespass justifies entering on the land, as being a highway, the jurisdiction of the Justice is ousted, ColweU v. Purdy, Trin. T. 1831. 2 a — If in an action of trespass to land, tried before a rtma/ac/c evidence against him. Ex parte Parks, 3 All. 237. The prosecutor need not prove that the de- fendant had no license. Ibid. The penalty is incurred by the sale of any of the kinds of liquor mentioned in the Act 17 Vic. c. 15. Ibid. 4— Form. A conviction under the Prohibitory Li- quor Act 18 Vic. c. 36, must follow the form prescribed in the schedule of the Act, and not the form in the Summary Conviction Act. Ex parte Breeze, 3 AU. 395. The form of conviction givou, stated that in default of payment of the fine and costs of prosecution, the defendant should be imprisoned for throe months " unless the said several sums bo sooner paid." Held, That a conviction under the Act, which in addition to those sums, required the costs of distress and commitment to bo paid, was bad. Ibid. 6 -Admission of sale— DifHsrent Jus- tioe— Pleading recovery. A prosecution for sulling liquor without lioenBo was instituted before A., a Justice of the Peace who, on the return of tho summons, adjourned the trial. Tho de- fendant then went before another Justice, and admitted the sale, whereupon such Justice imposed a fine upon him. At the adjourned hearing before A., the de- fendant pleaded this conviction in bar, but A., notwithstanding, proceeded with the case, and convicted the defendant. Held, That his conviction was good. Reg. V. Roberts, Trin. T. 1863. 6— Highways A conviction for obstructing a highway is bad, unless it appear on the face of it that the place was a public highway. Reg. T. Brittain, 2 Kerr 614. 7 — Dedication of a road to the public may be presumed from long user and the ex- penditure of statute labor on the road, and a party may be convicted under the Stat. 5 Wui. 4, c. 2, s. 16, for encroach- ing upon such a road, as well as upon highways duly laid out and recorded, Reg. v. Buchannan, 3 Kerr 674. 8 — Owner of land not punishable for not removing fence — Duty of Commissioner to do so. See Highways 15. VI. Gknerally. 1— Void for uncertainty. Where the information in n conviction charged the defendant with measuring or surveying lumber intended for exporta- tion in violation of the Act of Asscuibiy 8 Vic. c. 81, and the evidence referred to three distinct Acts, but it did not appear for which of them the defendant had been convicted. Held, That the conviction was bad for uncertainty. Held also, That the Court hud no power tn allow costs on tho quashing of u con- viction. Regina v. Stevem, ''> Kerr 356. 2 — A conviction adjudging the defendant to be imprisoned for twenty days or pay £5 and costs, is bad. Reg. v. .VToWnian, 4 All. 73. 3 — A conviction under the 1 Rev. Stat, c. 133, s. 3, for fraudulently taking away lumber, describing it as "the property of another," is defective ; it should utatc tho name of tho owner. Ex parte JMIer, Hit. T 1866. 4— Amending — Improperly including costs. Whore costs had boon improperly incluii- JUSTICE OF THE PEACE. JUS TERTII. 259 ed in a conviction for breach of bye-laws of ('ity of Fredericton, the amount waa deducted, and the conviction sustained for the penalty. Ex parte Mowry, 3 All. 276. 5— A conviction for a penalty, whereby defendant was ordered to pay the fine " forthwith within thirty days," is suffi- cient under Rev. Stat. o. 138, Form L. Refj. V. McGowan, Mich. T. 1863. 6— Adjudging oommitment— Applica- tion of forms— Certainty. A conviction under the Act 33 Vic. c. 33, for selling liquor without license, is bad, if in addition to the costs of prose- cution allowed by the Act, the Justices adjudge the defendant in default of pay- ment to be committed to gaol for a certain time unless the penalty and costs, together with the costs of commitment and con- veying him to ijaiol, be sooner paid. Reg. V, Harshman, East T. 1873. The form of conviction (L.) in 1 Rev. Stat. «. 138 specifying the costs of commit- ment and conveying the defendant to gaol is not applicable to all cases, but only where the Act under which the penalty is imposed, authorizes the Jus- tices to award such costs. Ibid. A conviction for selling liquor without license, stated the sale to have been con- trary to the Acts of Assembly, (stating the titles of the Acts.) Held, That it was sufficiently certain, and that the con- viction was substantially good under both Acts, the first, (17 Vic. o. 16,) making the sale of liquor without license illegal, and the second, (33 Vie. o. 32,) imposing the penalty for such sale. Ibid. 7-Bzoeeding power— Qaol— Imprison- ment. The Act 34 Vic. c. 12, enacted, That during the erection of a new gaol for King's County, the SheriflF of the County was authorised to imprison any. person arrested by him, in either of the gaols of the counties of St. John or Westmor- land, as such Sheriff should think fit. Held, That a conviction which adjudged a person to be imprisoned in the common gaol of King's County, at Kingston, was bad — the option of the place of imprison- ment being in the Sheriff by the Act. Reg. V. Perkins, Trin. T. 1872. S-Bnlarging Rule for quashing oon- viotion—Applioation— Excuse for non-service. A rule ntst tor quashing a coDviotion was granted in Easter Term, returnable at the next term. The rule was not served upon the prosecutor or justice, until the day preceding Trinity Term. The Court refused to enlarge the rule, — no satisfactory reason being stated for the delay. Reg. v. Harshman, Trin. T. 1868. Alien — Liability for tax. See Alien. Indented Apprentice^— Infant — Conviction. See Apprentice. Removal of proceedings. See Certiorari. Order of Justices to condemn liquor with packages, etc., is indivisible and if bad in part is bad in toto. See Ex parte Breeze, 3 All. 390. VII. Costs. 1 — Costs cannot be given on a conviction for a penalty for breach of a bye-law of the City of Fredericton. The word "costs" in the Slst section means the copta of distress and sale. Ex parte Mowry, 3 All. 276. 2 — Costs not allowed on quashing convic- tion. See Reg. v. Stevens, 3 Kerr 356. 3 — Justices' Summary Conviction Act 12 Vic. c. 31, gives no general powers to award costs on convictions. Ex parte Clifford, 3 All. 16. 4 — Where Justices have power to award costs on a summary conviction, they must specify the amount. Ex parte Hartt, 3 All. 122. 5 — If the prosecutor appears at the trial of a complaint, and the Justice, after hear- ing, dismisses it, he has no power to award costs against the prosecutor under the Summary Conviction Act, 1 Rev. Stat. c. 138, s. 11. (But see Form P.) Ex parte BeaUie, Mich. T. 1863. VIII. Notice of Action. See Action at Law (Notice of Action.) Qumre, As to notice of action where money not paid over. See Supra Wilson v. Boyd, m. 1. JUS TERTII. See Carrier 3. " Trover 20. II ,4 "1 s j; i 4| ''J fi IB , j^ IB '^i H ' •iii'l ; ''tl B 260 LANDLORD AND TENANT. JUSTIFICATION. Proof of— On croBS ezamination of plaintiff 's witness. See Evidence Till. 6. Privilege of House of Assembly. See Arrest. Defamation — General Issae. See Defama- tion. Matter not allowed under general issue. See Evidence XIII. Justifying under third party. See Trespass IL 5, 6, 11. Under process. See Execution lY. 4. See Evidence III. 25. Acts which would have been waste, if done by the tenant, cannot be justified by any person acting under his authority. See Landlord and Tenant VII. 3. Admissibility of evidence under general issue — Objection not made in time. See Evidence XI. 23. Breaking and entering close — Defendant acting as servant of constable — General issue answering whole declaration. See Pleading II. 40. Fences— Defect of— Trespass. In trespass by cattle, it the defendant justify the entry of the cattle through defect of fences, it must be specially pleaded. Gurwold v. Hallet, Mich. T. 1834. LAKE. See Grown Grant 1. 19. LAND DAMAGES. See Assessment. " Mandamus. See Damages. LANDLORD AND TENANT. I. Leases— Aqresmknts — Construc- tion — Operation. II. Tenancy — Notice to Quit. III. Rent. IV. Rights or Landlord. V. Defence by Tenant. VI. Leases. VII. MlBOELLANEOTTS. (See Diatreaa.) L Leases — Agreements — Construction AND Operation. 1— Oront of reversion- Tenancy deter- mined.^ M. being in possession of premises as tenant from year to year to W., a lease of the same under seal was made by W. to J. for ninety-nine years from the date. Held, That such lease took effect as a grant of the reversion for that term, and entitled J. to put an end to M.'s tenancy by a proper notice to quit. Doed.JarvU V. McCarthy, 3 Kerr 63. 2— Refusal to take possession— Liabil- ity for rent. The plaintiff agreed to let a shop to the defendant in the same state that the ten- ant then in possession had it ; the tenant on quitting removed some gas fittings which formed part of the shop, in conse- quence of which the defendant refused to take possession. Held, That he was not liable for the rent. Dunn v. Howard, 1 All. 615. 8— Agreement for new lease— Condi- tionaL The lessee of a building lease containing a covenant by the landlord to pay for im- J movements, being indebted to the land- ord at the end of the term, surrendered all his interest in the lease, in order to secure the debt, and the landlord released the arrears of rent and agreed to renew the lease on payment of the debt within a year. Held, on a bill filed for specific performance of this agreement after the expiration of the year. That it was a conditional agreement for a new lease, and not a mortgage. Purvit v. Hume, 3 AU. 299. 8 a— Agreement to lease— Condition for purchase. Defendant agreed to lease ungrantcd land from the plaintiffs, the rent to be paid on the Ist October, and if before that day she should agree to purchase the plain- tiffs' interest in the land, the rent to form part of the purchase money ; but if she should determine not to purchase, and notify the plaintiffs thereof, the payment of rent was to be postponed till 1st April, when the lease was to terminate. The defendant gave no notice of intention not to purchase, but continued to pay rent for two years after the Ist April. Held, That tb" agreement was not absolute, and that the defendant was not liable in an 5 — Where A LANDLORD AND TENANT. 281 action for refusing to purchase, nor for land bargained and sold. Mc CaUmont v. Mulhall, 4 All. 200. \fler the termination of the plaintiffs' lease, the defendant leased the land from the Crown with the plaintiffs' consent. Held, That the relation of landlord and tenant having ceased, the defendant was liable to the plaintiffs for use and occupation. Ihid. 4— Ferry— Season— Termination. The owner of a ferry leased it to the de- fendant in May " for the season of 1855." Held, That this was not a lease for a year, but that it terminated either at the closing of the river by ice or on the 31st December 1855. Fraser v. Drynan, 4 AU. 74. Plaintiff managing farm — Tenancy. See No. 8. Surrender of lease — What amounts to. Sqc Covenant 9. II. Tenancy — Notice to Quit. 5 — Where A. went into possession of pre- mises as tenant to B., and had occupied for several years, without any terms of holding being agreed upon, and never paid any rent, but built a barn and made other improvements on the premises, and on being applied to for payment of reut after B.'s death, stated that his improve- ments were worth more than the rent. Ueld, That it enured as a tenancy from year to year, and that the tenant could not be ejected without a notice to quit. Doe d. Macqueen v. Hunter, 1 Kerr 518. 0-Agreement to hold on new terms— Evidence. Plaintiff, in the occupation of property as tenant from year td year of the defendant and two others, who owned the property in equal shares as tenants in common, on being applied to by the defendant shortly before the expiration of his year, stated that he wished to continue in possession another year ; defendant then gave him notice that he should expect £100 per annum, for his share of the property, to which the plaintiff made no ODJection, bat continued in possession. Defendant afterwards distrained for a quarter's rent. Held, That there was sufficient evidence for a jury to infer that the plaintiff had agreed to hold as tenant to the defendant upon the new terms. Sturdee v. Merritt, 3 Kerr 641. 7— SuiBoienoy of Tenancy— Working farm. A person working a farm on the shares and occupying part of the house jointly with the owner of the farm, has not such a tenancy as to prevent the owner from maintaining trespass to the land. West V. Atherton, 2 All. 653. 8— Working Farm — Possession— Ten- ancy. In trespass for taking bay and grain, it was proved that the land on which they grew belonged to the plaintiff's father, who four years before the trial, gave it up to the plaintiff on condition that he should support his father and family ; that the father continued to live on the land, but that the plaintiff took the man- agement of the farm and sowed the grain and cut the grass. Held, That the jury were properly directed that this constitu- ted a tenancy and gave the plaintiff the possession of the crops. Ferguson t. iSavojf, 4 All. 263. 8~Tenancy yearly — Admission— Let- ter. The plaintiff leased land to A. for two years, from the 1st May, 1848, with an agreement to renew the lease or pay for the improvements. A. assigned to B., who remained in possession till August 1851, and then assigned to the defendant, subject to the payment of the rent due. Before taking the assignment, the defen- dant wrote to the plaintiff, enquiring about his title to the land, and whether he (defendant) would be safe in paying the rent to B. The plaintiff answered, that he thought he had a right to look to the defendant for the rent ; to which the defendant replied, admitting his liability for the rent, and that the plaintiff was the owner of the land. Held, That the letter admitted a tenancy from year to year, at the rent reserved in the lease to A., and that it was properly left to the jury to find whether such a tenancy ex- isted. Doe V. Pelletter, 4 All. S3. 10— Agreement— Letting into posses- sion under. An Agreement was made between A. and B. in 1824, by which A. agreed to con- vey land to B. on payment of a certain sum of money on or before the 1st May 1829, together with the interest on the pur- chase money for the first three years, and eight per cent, for the last two years, as a consideration for the use of the land. B. was let into the pussession under the ^ \'^ ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 lti|21 |2.S Photographic Sciences Corporation 1.4 11.6 ^. <^' 23 WIST MAIN STRUT WIRSTIII,N.Y. USIO (716)l7a-4S03 ^ PifipniPn'"<**"ni LANDLORD AND TENANT. agreement. Held, That this agreement created a tenancy for yeara, expiring on iLo let May 1829, and not a mere ten- ancy at will. Doe d. CUff v. Connawaj/, Ber. 382. 11— Agreement to purchase not Ailfilled —Tenancy. A. became tenant from year to year to B., at a certain rent in 1858. In 1860, A. agreed to purchase the land, and gave his note for the price, taking a bond for a deed from B. on payment of the note. The agreement to purchase was never carried out, no payment having been made by A., and by consent of the parties the ar^reement was destroyed, and A. remained in possession without any new agreement. Held, Thau the tenancy was not deter- in ^i by the agreement to purchase, and ,n:.i, H, could distrain for the subsequent ren" V'jn, that whether the tenancy coiiti'a. d or uot was a question of law. C-oiM V Wortman, Mich. T. 1863. la— E jidfng over— Notice to quit— lysQtment. Where a tenant, under a parol lease for seven years, holds over after the expira- tion of the term, no notice to quit is neces- sary, before bringing an action of eject- ment against him. Doe Geo. 3, o. 11, s. 18, must be given thirty days exclusive of the day of sale, both by posting up notices and by publication in the news- papers ; but it is not necessary to prove that the notices continued up till the day of sale. Doe dem. Pike v. Tiemey, Ril. T. 1831. 12— Administrator's Deed— Purdhaser'B title under. Where the petition to the Probate Court for license to sell land, sets out the mat- ters reauired by law, and due notice of the application has been given, and the administrator's deed is in conformity with the Act, it vests in the purchaser under the license, the title of the intes- tate ; and in ejectment by the purchaser, evidence is not admissible for the pur- pose of cutting down the deed, to shew that no debts were due ftora the intes- tate. Doe dem. Bovoen v. Robertton, Hil T. 1861. Quaere, Whether it could be shewn that no notice was given to the heirs, of the application to the Probate Court for license. Ibid, 18— Signe^ure of Judge not necessary* A license to sell real estate need not be signed by the Judge of Probates : Being a judicial act, it is sufficient if it is sign- ed by the Registrar, as the act ui the Court. Do9 dem, Simpton v. FaXU^ Trin. T, 1863. 14— Plaintiff cannot shew license im- nroperly panted because of luf- ilcienoy or personal property. In ejectment by s devisee against a pur- chaser fVos\ 'Ici executor, under a lioenae from the Probate Court, the plaintiff can- not shew, for the purpose of defeating the deed, that the license was improper- ly granted, because the testator left suf- oient personal property to pay his debts, LIEN. LIFE ESTATE. which had been wasted and improperly expended by the executor in anneceasary proceedings in the Probate Court, of which the purchaser (being the attorney of the executor in the Probate Court) was aware : there being no want of juris- diction shewn on the face of the peti- tion, and such objections to the license being a ground of appeal from the decree of the Probate Court. Doe dem. Sullivan v. Cfurrjf, Trin. T. 1872. 16— To sell liquor. License need not be proved in action on note given for price of liquor. See Mc- A\de]f V. Lawlor, 4 All 600. J^-ima facie evidence of selling without license — onus of proof on defendant. See Evidence III. 23. 16— To erect dam. Evidence of license. Case m. 1. 17— Fishery. See. See action on the UEUTENANT GOVERNOR. Right to present to Rectory. See Church of England 11. License granted by, to sell land. See License 10. LIEN. I. Pbinoiplks — Operation. II. Pabtioulab Pebsons. I. Pbinoiples — 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. Roger* v. Sedden, 2 Kerr 59. Set off, of judgment in another Court — Beneficial interest. See Practice XIV. 3 a— Oonsideration— Farting with lien— PromiM. Parting with property on which the plaintiff has a hen, may be a good con- sideration for an express promise, but will not support an implied one. HarU ley -. Fither, 1 All. 459. 3 — A judgment is not such a lien upon lands, as to prevent the defendant con- veying the legal title and seisin to a third person. Doe d, Ptabodjf v. Mc- Knight, Ber. 376. 4— No daim of lien— Ofibif to deliver logs. It is no objection to an offer to deliver logs that they are in possession of the owner's agen*' a surveyor of lumber, who might have a lien on them, but who had not claimed any lien. Folley v. Water- home, 3 All, 291. 6— MemoriaL By the Kev. Stat. o. 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 by the Sheriff under such execution is subject to the charge of the prior registered judgment. Mill* v. JlfiV/«, 4 All. 45. II. Bt Pabtioulab Pebsons. 6— Attorney. An attorney has a lien on a judgment by him for his costs as between attorney and client. Linton v. Wilson, 1 Kerr 300. 7— Pond-keeper. _ \ The legal obligation of a pond-keeper is the same as that of a wareaouse-keeper ; and in the absence of an agreement cr general usage of trade establishing a general lien, he has only a special lien on timber in his possession, for his rea- sonable charges for the care of it. Jack V. Edgles, 2 All. 95. 8— Ship-owner— Freijpht. 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 tho 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. NeiU V. Reid, 4 All. 246. Hired men. See Timber. Parting with possession — lien lost. See Delivery 4. Agreement giving no lien on partnership property. See Equity 2. Application to set off judgment againit damages in other suit — Power in Court to grant application subject to attorne/i lien. See Set off 8. LIFE ESTATE. See Will 3, 4, 5. LIMITATION OP ACTIONS— STATUTE OF. 269 LIGHTS. ObstruotioQ of. See Action od the Case IV. 4. LIMITATION OF ACTIONS— STA- TUTE OF. I. GenkraIi Operation. II. Acknowledgments — Part Pay- ment. III. Personal Actions and Proceed- ings. TV. Real Actions — Adverse Posses- sion. A. KiouT OF Entry. B. Tenancy at Will. C. Tenants in Common. General Operation. 1— Beoovery of damages— ICuisanoe. To an action on the case for a nuisance, in overflowing the plaintiff's land by a dam, vhich was erected by the defendant more than six years before bringing tbe action. Held, That the effect of a plea of the Statute of Limitations was not to bar the action but only to limit the re- covery of damages to the last six years. Connors v. McLaggan, 2 Kerr 446. 2— Tenancy at will. The 7th section of the Act of Assembly 6 Wm. 4, c. 43, does not apply to a tenancy at will which had actually ter- minated before the Act passed, although the possession of the tenant continued. Doe dem Belding v. Belding, 2 Kerr 534. 3— Statute beginning to run— Subse- quent diMibility. When the Statute of Limitations has once begun to run against a person, no subse- quent disability in any one claiming under him will stop it ; thus whore A. discon- tinued possession in 1820, and died in 1826, leaving a son under age. Held, Thut if the Statute bo;ntinuou8 poMeision. 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 pur- chased by 0., who had the boundaries marked with (he plaintiff'i aaiistuioe. G. several years after sold to the defend- ant, who held up to the same line until 1861, without objection by the plaintiff. Held, That there was a oontinuons pos- session of the whole fiffy acres for upwards of twenty years in C. and the defendant, which gave the latter title to the knd. Doe V. Baxter, 2 AU. 377. 6— Necessary Acts to oonetitute ad- verse poasession. In order to constitute an adverse posses- sion of land, it must be exclusive, con- tinuous, and clearly defined : there 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. Doe dem Mayor dkc. of St. John V. Littlehale, Hil. T. 1861. Where the land above high water mark was granted to one person, and the beach in ' front, between high and low water mark, to another, the merely passing over 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 exer- cise of a public right of passage when the beach was covered with water, and, with an easement in the proprietor of the ad- joining land when the beach was uncov- ered. Ibid. 6— Poeeeaeion— Survesr. An entry or survey of land by the owner is not such a possession as will prevent the operation of the Statute of Limita- tions, 6 Wm. 4, c. 43, or divest the pos- session of one holding the land adversely at the time of the entry. Doe v. Boston, 3 AU. 461. 7— Extent of possession— Description in deed— Unoccupied remainder. A. being indebted, conveyed land (partly wilderness) 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 plaintiff'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 (he division line between the fifty acres and the remainder of the land towards the rear of the lot ; B. sold to the defendant in 1836, and the plain- 272 LIMITATION OP ACTIONS— STATUTE OP. tiff then oontinued the diTsioo line to the rear; nnd occupied up to it for several J ears. Held, That as B.'a entry was not wrongful, his actual possession of a part (there being no other possession of the remainder) extended to the whole of the land described in the deed, and that the plaintiff's right was barred at the expira- tion of twenty years after B.'s entry. Held also, That the Sheriff's deed was properly received in evidence as part of the rei gnfte, without proof of any judg- ment or execution to warrant it. ^oe v. Baxter, 4 AU. 131. 8 — The vendor of part of a tract of land sent a surveyor to lay it off for the pur- chaser (defendant). The surveyor poiuted out a tree to the purchaser as his bound- ary, up to which he took posscssiou, and occupied upwards of twenty years. Held, That he had acquired a title by possession up to that tree, though it did not corres- pond with the description iu 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 hav- ing found that the defendant's possession was up to the tree. Doe d. Robinson v. Chase, East. T. 1864. 0—AotB — Whether of poBsension or trespass— Question left to j.ury. In trespass for taking grass, plaintiff E roved that she ai>d her deceased hus- and had cut the grass on the locus 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 other 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, — occa- sionally 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 by the plaintiff were acts of posses- sion, — claiming it as a right, — or mere acts of trespass ; and the jury found in favor of the defendant. Held — No mis- direction. Power V. Howie, Mich. T, 1864. 10— Continnanca of poiMaaion— Ohar- aoter of holding— Original claim— Bebuttal of preaumptioa. Defendant went into possession of land under an agreement to purchase from his brother. W. the plaintiff's father, paid thepurohaMmoney,buiItshou8eand occu- pied the land. After the death of ^iV., the plaintiff, then an infant, 6 years old, went to live with the defendant on the land, and was maintained by him for a number of years. Held, (N. Parker and Wilmot, J. J., dissentientibus,) That the presumptiou was that the defendant con- tinued in possession under his original claim of right, and that the plaintiff's liv- ing with him on the land, did not neces- sarily destroy that right ; but that such presumption of right might be rebutted ; and, that it was a question for the jury whether certain acts of the defendant aflcr W.'h death, shewed that he was hold- ing the property as his own, or for tho benefit of the buirs. I'er. N. Parker and Wilmot, J. J. — That the plaintiff's occu- pation of the land must be presumed to have been in his character as heir of W,, . nnd that it was not a question for the jury. Doe d. Spence v. Welling, Trin. T. 1866. Continuance of possession by widow ailer death of husband — For whom holding — Adding possesHion to give title. See Possession 4. i 11— Begiatered deed— Acts of posses- sion necessary— Entry under deed or as trespasser. There is a distinction in tho character of the possession where a person enters oo land under a registered deed, nnd where he enters without any claim of right. It should be left to the jury to sny 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 registered deed of land, does not operate to give him possession of the land therein described, without shewing acts of possession. The Madras Board v. Ryan, Mic'^ T. 1864. 12— Defined boundaries— Possession of part— Intention— Title to whole. If a person enters on land under a regis- tered deed, with defined boundaries, with the intention of taking possession as owner, and not as a mere trespasser, he may be considered 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 cod- tinned for twenty years, will give a title. It is a question for the jury, with what intention a party enters on land. (Per Parker, Wilmot and Ritehie, J. J., Carter, 0. J., and N. Parker, M. R.,c;ti- LIMITATION OP ACTIONS— STATUTE OP. 2TS mntimUibus.') T. 1861. Humphrejft v. Helmt, HiL Fosseasion of plaintiff — Whether amounting to diMteuin or not. See Disseisin 5, Pojf- ton V. Good. Inconsistent evidenoo as to poeseosion — Verdiot oP jury for all but improved land. 8e'e New Trial III. 49. A. Right of Entbt. 18-. iment — Tenuicj at will— eirs. A. the owner of land, put B. in posses- sion in 1799, under an agreement to purchase. In 1820, the heirs of A. de- manded possession of the land from B., who refused to give it up. Held, That by entry under the agreement, B. became tenant at will to A.; that under the Statute of Limitations 6 Wm. 4, c. 43, such tenancy terminated at the end of one year after B. went into possession ; and that the action not having been brought within twenty years thereafter, the right of the heirs was barred by the Statute. Doe dem. Purdjf v. Peters, Ber. 350. 14— Entry of owner with consent of teuout. Defendant went into possession of land as tenant at will to plaintiff, and remained in possession upwards of twenty years. Held, That such tenancy was not determined by an entry of the owner within twenty years with the consent of the tenant for the pnrpose of running the line between his possession and the adjoining land, and therefore that the plaintiff's right of entry was barred by the Statute of Lim- itations. Doe d. Buta/ord v. Tuld, Trin. T. 1863. 16— Payment on aooount of mortgage— Porchafler of Bquity of Beaemp- tion — Action Drought within twenty years of payment. S. mortgaged land to the lessor of the plaintiff in 1837, and made payments to him on account from time to time— the last payment being in October 1843. In 1842, the equitv of redemption of S. was sold at Sheriff's sale, and the defen- dant claimed under the purchaser from the Sheriff. Held, That the mortgagee could maintain ejectment for the land within twenty years after the last payment by S. Doe d. Foas v. Wru/ht, HU. T. 1865. 35 16— Female inflmt— Karriage— Hue* band bound to bring acuon with- in twenty years after rl^t of entry of uuant. A right of entry accrued to a female in- fant in 1826, and in 1830, a few months before her infancy ceased, she married the plaintiff, who brought an action to recover the land in 1848. Held, That he, being under no disability, was bound to bring his action within twenty years after her right of entry accrued, and therefore that his right was barred. Starkk v. Parks, 1 All. 666. Semhle, That though the husband's right was barred by the Statute of Limitations, that of the wife was only suspended dur- ing her disability. Ibid. 17 — Devise to widow fbr life — Chil- dren's right of entry. A testator, after directing that so much of his estate as was necessary should be 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 wife during her life or widowhood, and to pay her the income thereof r.nd aflor her denth or marriage then to t>e divided ROioug his childres. Defendant took f>o<»en9ion of the land in 1831, after the testator's death; the widow died in 1856. Held, That the children's right of entry did not accrue until the widow's death, and their title was not barred by the Statute of Limita- tions. Doe V. DriscoU, 4 All. 176. 18— Unoccupied land— Orantee— Soisin -Possession. A grant of land from the Crown, under the great seal, with a plan of survey an- nexed, conveys seisin to the grantee, and his possession will prima /acie be deemed to continue while the land remains un- occupied and unimproved. Held, there- fore, That an adverse possession of ten years in the defendant would not bar the entry of the lessors of the plaintiff, who claimed as heirs of the grantee under a grant made in 1786, the land being shewn to remain unoccupied until the time of the defendant's possession. Doe dem. Kimpson and Wife v. Croft, 1 Kenr 646. 19— Sufficiency of adverse possession —Acknowledgment of nolding. Where land was granted by the Drown to L. S., who let F. into possession over forty years ago, and F. had acknowledged that the land was held by him under L. S. and his heirs, and' had paid rent to the 274 LIMITATION OP ACTIONS— STATUTE OP. widow of L. S., and had ftlso in 1822 agreed with one of the sons of L. S. to hold the 'tnd until it was called for by the owners, and had shortly after died in possession. Held, That the defendant who had come in under B., who obtained possession from the widow and family ^ P., had not such an adverse possession as to bar the entry of the heirs of L. S. Doe dem. Strange t. Thomnton, 1 Kerr 564. Ooverture ceasing, aoUon brought within ten years and within iorty years after right accrued, though not within twenty years after coming of age. Qtaere, If sufficient. See Partition. B. Tenancy at Will. 30— Determination of tenancy. In ejectment, the defendant, by virtue of the Act of Limitations 6 Wm. 4, c. 43, s. 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 question, and mak- ing surveys upon it, and any such entry without the consent of the tenant at will, would operate as a determination of the tenancy. Doe dem. Lyon v. Sliivin, 3 Kerr 258. 21 — A person taking possession of land under an agreement to purchase, which speoiied no time for the continuance of tbn 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 parties before he can be ejerved on non-comple- tion of the purchase. Doe v. Denny, 3 AU. 50. The Act 6 Wm. 4, c. 43, s. 7, does not ap- ply to Buoh a case ; but only to questions aruing under the Statute of Limitations. Ibid. 22 — ^T. P. put G. in possessioi) of land to hold for nim and keep trespassers off, with liberty to cut the grass and fire-wood up- on it : G. held it until his deatl) in 1821 (nearly thirty years), but never claimed it as his own ; on the death of G., his son D. succeeded to the possession and con- tinued 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 oonroyod it to G. P., a son of W. P., under whom the plaintiff claimed by a deed dated in 1856. The defendant claimed uDv^er J. P., a erandson and one of the heirs of T. P., who entered on the land aft«r tho conveyunco to G. P. in 1844. Held — 1st. That G. was not a tenant for years to T. P., subject to a rent service, but at most a tenant at will, and that such a tenancy terminated at his death in 1&21 ; 2nd. That the holding by D. created a new tenancy at will between him and the heirs of T. P., which terminated in 1823, and that at the expiration of twenty years therefrom the right of T. P.'s heirs was barred, and D. had the fee simple — the five years allowed by the 14th section of the Statute of Limitations, 6 Wm. 4, o. 43, having expired on the 1st January 1842; 3ra. That as the plaintiff, being the heir of G. P., might claim by descent, the Judge was right in refusing to leave to tho jury, whether at the time C. P. conveyed ' o the plaintiff, he was not dis- seised by the entry and possession of J. P. Doe V. McGhyn, 4 All. 189. See Supra I. 2. \ C. Tenants in Common. 23 — As between tenants in common, tho right of one tenant to bring ejectment within five years of the Act of Limita- tions (6 Wm. 4, 0. 43) taking effect, is saved by tho sixteenth section, where the possession was not adverse according to the law existing at the time ivhen tho Act took effect. Doe dem. William$ v. Leavttt, 2 Kerr 83. 24 — A., being in possession of land as ten- ant in common with his brother and sister, went away from the property in 1820, leaving his mother, brother and sister in possession ; the defendant mar- ried the sister and bought the brother's share in 1824, but the brother remained in possession until 1831, receiving the whole of the profits for the purpose of supporting his mother — to which all the family considered themselves bound to contribute. A. died in 1826, leaving a son, the lessor of the plaintiff, under ase, who brought ejectment in 1846. Held, That up to 1831, there was no exolusive possession in any one of the tenants in common to bring the case within the Act 6 Wm. 4, c. 43, s. 12; that the Statnte did not begin to run against A. in hit lifetime; and that the right of the leMor See Justice of MALICE. MALICIOUS ARREST & PROS'N. 276 of tho plaintiff was not barred. Doe d. Tlutmpton v. Markt., 3 Kerr 659. LIMIT BOND. See Bonda — Bail — Practice. LIVERY OP SEISIN. Grant of land conveys seisin. See Crown Grant II. 4. Allowing party to give evidence of seisin. See Evidence Vltl. 12 a. Party in possession — Presumption of livery of seisin. See Deed I. 20. Atot of Seisin— Oirouinitanoes. In order to show livery of seisin under an unregistered deed, the grantee 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 afterwards ezercbed ownership over it. The grantee afterwards became insolvent, and in the schedule of his pro- perty, filed pursuant to the Act 7 Vic. 0. 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 456. LOCUS STANDI. llipht to have — Contesting title. See Practice in Equity II. 4. LOST RECORD. See Judgment I. 6. LUNATIC. Setting aside proceedings against. See Prac- tice VI. 16. Deed of. See Deed I. 36. » MAGISTRATE. See Justice of the Peace. MALICE. False return of Member — Proof of actual malice necessary to sustain action against Sheriff for making. See Election Law. Practice of striking out names ot ,)flnons refusing to take'oath admissible in ques- tion of malice. See Evidence III. 7. Registrar refusing to register. See Plead- ing I. 56. Proof of — When unnecessary in question of negligence. See Action on the Case II. Influence of malice. See ' Criminal Law n.4. See Malicious Arrest, etc. MALICIOUS ARREST AND PROSE- CUTION. Reasonable and Probable Cause. Arrest. Proof of signature of defendant to affi- davit unneceesary, if arrest made by his procurement. See Evidence VII. 5. Excessive damage — Xew trial not granted unless damages outrageous. See New Trial IIL 11. Malicious Prosecution. 1— Evidence— Copy of indictment. A copy of an indictment certified by the proper officer, though improperly obtain- ed, is admissible in evidence in an action for malicious prosecution. Heany y. Lynn, Ber. 27. 2— Prosecutor. Defendant charged the plaintiff with stealing, on which he was indicted at the Sessions, and acquitted. The prose- cution was conducted by the Clerk of tho Peace ; but the defendant consulted with him, and procured the attendance of the witnesses. Held, Sufficient evi- dence that tho defendant was the prose- cutor. Burgoyne v. Moffat, itil. T. 1861. 8— Motive. Any motive for a prosecution, other than that of wishing to bring a guilty party to justice, is evidence of malice. Retain- ing the Clerk of the Peace to prosecute an indictment against the plaintiff, before the Sessions, together wita the conduct of the prosecutor before and after, 'ar^ proper mat£en to be left to the jury on the question of malice. Alwara t. Sharp, 1 Han, 286. 4 — Any motive fbr a prosecution, other than that of bringing a guilty party to justice, is a malicious motive. Malice may be inferred from the want of probable cause; PPHi 278 MANDAMUS. resisted od the ground that the right of way had been given to, and the track laid out by the European and North American Uailwny Company under a deed executed by the applicant; that all the right of that Company had been transfer- rtjd to the Government; and that the land taken by tlie Government was iden- tical wjth that laid out by the Company. Held, That as this identity was left doubtful by the affidavits, an alternative mandamus should issue. Ex parte Gray, 4 All 118. B. When Refused. 7— Inferior Court— Entering judgment. The Court will not ^raut u mandamus to the Justices of an Inferior Court of Com- mon Pleas, requiring theui to enter up judgment for the plaintiff in an notion of recognizance of bail in that Court ; when such Justices had in the exercise of their discretion set aside the plaintiff's judg- ment and allowed a render of the princi- pal. Sedden v. Rtutel, Ber, 217. 8— Inferior Court— To award ooBts. A mandamus was refaied 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 sum- mary action, and- the pleadings subse- quent to the declaration being special and notiaocording to the summary. Act 12 Vic. c, 40. Ex parte Griffith, 2 All. 93. Quare, Whether the jury had power to try such an issue. Ibid. 8— Corporation— To iMue notes. The Act 18 Vic. c. 6, authorised Com- missioners to convey water into the Town of Carleton from certain lakes, and for that purpose to purchase the water rights, a portion of the lands round the lakes, and the land necessary for laying down water pipes, to distribute tliu water in the town and carry off waste water ; and in order to pay for the water rightii and lands taken, and for the construction of nil necessary works and all incident expen- :)eB, the Corporation of Saint John were authorised and required on the requisition of the Commissioners, to issue fh>m time to time, notes or certificates of debt to an amount not exceeding X25,000. The Commissioners entered into a contract for laying down the pipes and conveving the water from the lakes into the Town for X23,QQp. ^nd required the Corpora- tion to issue notes for that amount, which they refused. Held, That as it wan not shewn that the Commissioners had made any arrangements for carrying out the other provisions of the Act, or that the balance of the sum limited would be sufficient for that purpose, the issuing of the notes was discretionary with the Cor- . poration, and that a mandamus would not be granted. Ex parte Cotter, 3 All. 349. 10— General Seaaions- To pay for work — SherUL A mandamus was refused to compel the General Sessions of St. John to pay fur work done at the gaol by direction of the Sheriff. Ex parte Thomas, Trin. T. 1862. 10 a — Mandamus refused to compel Magis- trate to proceed in a criminal cause at suit of private prosecutor. See Reijina v. Duvaney, 1 Han, 571. See Supra 14. 11— Oonuniflsioners of Sewers— Damage —Foundation for applioatibn againat— Compliance with Act — Powera under — Bequuat — Demand. The Act 2 Wm. 4, '■. 26, incorporating the St. John Water Company, authorised them to draw water from, erect reservoirs on, and carry pipes through private pro- Eerty, provided that no such water should e drawn, etc., without compensation being paid for the use of the same, and for any damage sustained by the opera* tions of the Company, and in case of disagreement between the Company and the owners of the land, the compensation to be determined by arbitration ; and if the owner of the property should decline to appoint an arbitrator, the Supreme Court, on application of the Company, should issue a warrant to the Sheriff (o summon a jury to assess the amount to be paid. By Act 12 Vie. o. 51, f\irther powers were given to the Company to enter on private property, erect duma, and draw water from any stream, on pay- ing compensation to the owners — the amount to be determined as by the Act 2 Wm. 4, 0. 26. After the passing of this Act, the Water Company erected a dam upon a stream flowing through pri- vate property, laid down pipes and divert* ed the water from its natural channel, without the consent of the owners. By Act 18 Vic. c. 38, al| the property, rights, ""WPPW^IBiPfjpj^ppWIJI MANDAMUS. 27« powers and privilejies of the Water Com- pany were T(«ted in GomiuiBsioncrs ap- pointed 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 Com- missioners power to lay down pipes, etc., for extending a supply of water; and providing that in case of damage done in the execution of the works, the Comuiis- eioners should pay the party sustaining the same, such oompeusation as should be agreed upon, and in case they could not agree, the Commissioners should, on request of such party, apply to a Justice of the Peace for a warrant to the Sheriff to summon a jury to assess the damages. The Commissioners continued the obstruc- tion placed on the stream by the Water Company, 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 dam- ages under the Act 2 Wm. 4, o. 26, and the several Acts in amendment and inci- dent thereto, for abstraction of the water by the Commissioners, and requested them to take the necessary steps for summoning a jury to assess such dam- ages. The Commissioners declined to take any steps, and A. gave them a further notice, stating that they had re- fused to agree upon the amount of com- pensation for obstructing the stream and diverting the water, and requiring them to take the necessary and legal steps pointed out by the Acts 2 Wm. 4, o. 26, 12 Vic. c. 38, or any of them, for deter- mining 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 hein, as well for the acts of the St. John Water Company •8 of said Oommissionen. The Commis- sioners declined to take any proceedings on this Application, statin^ that they were not aw.ire that any damage had been done to A. by their operations. Held, on application by A. for a mandamus — ht That the Commissioners were right in ref\iBing to act on the first notice — the mode of proceeding under the Acts 2 Wm. 4, 0. 26 and 12 Vic. o. 61, being by arbi- tration, and not by a jury ; 2nd. That the Oommissionen had no power to act under the 2 Wm. 4, o. 26, even if they had been requested to take the proceedings pointed out by that Act; 8rd. That •• all righta and remedies against the Water Company were preserved by the 18 Vic. c. 38, the Commissioners were not bound to apply for a jury to assess damages for the actis of the Water Company, as required by the second notice; 4th. That without showing who the other owners of the pro- perty were, and how A. was entitled to claim on their behalf, a uiandamns could not be issued to assess the damages due to them, but must be confined to A.'s interest in the land; 6th. That it was sufficient for A. to show by his affidavits a prima facie case of title to the land, and that be need not produce his deeds ; 6th. That the allegation of the withdrawal from its natural counte of a large quantity of water from a stream flowing through A.'s land, showed a pnma facie case of damage to him ; 7th. That a demand in the alternative, to do one of two things, and n general refusal, was sufficient to found an application for a mandamus, if the applicant was entitled to part of what he claimed; 8th That a request to a Irablic officer, to take the necessary and egal steps pointed out by an Act of As- sembly, to assess damages fur the injury done to the applicant's property under the authority of the Act, was sufficiently specific; Uth. That an objection that there had been no sufficient demand could not be taken after the merits of the application had been discussed ; lOth. That where an application for a manda- mus fails, because there was no demand and refusal, it cannot, as a general rule, be renewed after a demand ; though there may be circumstances warranting a de- parture from this rule. Regina v. Com- mistioners of Sewers St. John, 1 Han, 3. 12-Affidavit-EntitUng of. Irregular if entitled in a cause in moving for a rule nut— discharged without costs. See Eeg. v. Justice* of York^ 1 AU. 90. 13— Return to— Mayor— Beaaons for re- filling to awoar party— Inauffl- oienoy of. The Ma^or of Fredericton is merely a ministerial officer, and has no judicial ftinctionsto authorise him to refuse to swear in an alderman elect on the ground of disqualification, if properly returned by the presiding officer. Semble, That an information in nature of a quo warranto might lie to trv the right ot a person to exercise the office ; but it would be an inaufficioDt return to a man- wm^ 280 MARRlAaE. MASTER AND SERVANT. damus to the mayor to swear ia a person returoed as duly elected by the proper officer, — to say that he was not duly elected. Exparte Richards, 2 Han. 131. Trying right to exercise office. See Quo Warranto. tieoond Application. See Practice V. 17. 14— Other remedy— Mandamus reflued — Juatioe or Peace. Where a Magistrate couinienced the ex- amination of a criminal charge, but re- fused to proceed because he thought that the only witness offered to prove a mate- rial fact, was not competent; the Court refused, on the application of a private prosecutor, to grunt a mandamus to com- pel him to proceed, there being another remedy by bill of indictment before the Grand Jury. Jiey. v. Duvaney, 1 //an. 671. 16— Remedy on Covenant— ICot repair- ing bridge. The St. John Water Co., (incorporated by Act 2 Wm. 4, c. 26,) covenanted with C. to build a bridge over certain overflowage on his land, caused by their works, and to keep the same in repair while they continued to overflow his land. All the rights of the Company were after- wards vested in Commissioners, by Act 18 Vic. c. 38, subject to the outstanding liabilities, and saving to every person all rights and remedies by reason of any contract or agreement theretofore made. Held, That C. had a legal remedy by action on the covenant, for not repairing the bridge, and therefore that a manda- mus would not lie against the Commis- sioners to compel them to repair it. Jieg. V. Seart, East. T. 1864. MANSLAUGHTER. See Criminal Law. MANURE. Not incident to land conveyed — GonTcrsion of. See Trover 16. MARKET. See Bye-Ijaw 3. " Power to establish Market. " See Corporation 14. «• Fredorioton ( City of) MARRIAGE. Performance of by Commissioner. Evidence VI. 3. Averment of — Action for mesne profits. See Ejectment VI. 2. Proof of marriage. See Evidence VI. 4. MARRIED WOMAN. See husband and wife. Legacy to — Action after decease of. See Action at Law IX. 13. Coverture ceasing — Infant — Right of entry. See Partition. MASTER AND SERVANT. Dismissal from Employment. 1— JuBtifloation— BInowingly bearer of challenge. To have been knowingly the bearer of a challenge to fight a duel, is such an of- fence as will justify a merchant in the immediate dismissal of a clerk from his employment. Dolhjf v. Kinnear, 1 Kerr 480. 2— Engaging in other emplosrment. Plaintiff was engaged by defendant fur two years as clerk, and shortly ' biler- wards entered into partnership with other parties for the r irpose of carrying on the same kind of ' isiness as his employer. Held, That this was such a breach of duty as would justify his dismissal. Tozer v. IIutchintoH, 1 Han, 540. 3 — If another ground of dismissal existed, the defendant has a right to avail himself of it at the trial, though he was not aware of it at the time of dismissal. Ibitl. Dismissal without sufficient cause — Right to immediate action — Damages. See Damages I. 16. 4— Aotioh for wages— Quantum mernit —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 and money from the de- fondant's storA «hi;^h he «i?.d aot charged himself with iji ' fendant haviug - ed to prooeoJ .•).•' plaintiff, but th( n* the plaintiff's gwt..^ ». v.uu uocuuuu. <> receipt in full of all demands, and the plaintiff's quitting the defendant's ser- vice. The plaintiff notwithstanding brought this action, and the case wus left to the jury as to the value of the plain- tiff's servioea, and the amount be had •'.o^-j, that the rie- nuthis, threatcn- n;.'lly against che T was arranged bj cc< the defendant a MESNE PROFITS. MISTAKE. 281 received. ThejaryhavingfoandaTerdiot for the plaintiff for £24, the Court re- fused to disturb it Deaver v. Bradley, 2 Kerr 110. 6— Master of veaael— NegfUgenoe. ^ The registered owner of a vessel is not liable for the negligence of the master, unless he has been apjpointed by such owner, or is acting for nim as his servant or agent in the navi^tion of the vessel. Newbury v. Young^ Eatl. T. 1872. Stage Driver — Presumption as to paying over passenger money. See Assumpsit III. 44. Action by Master for Servant's earnings from other parties during engagement. See Assumpsit III. 15. Negligence of Servant — Liability of Master. See Carrier 7. See Negligence. Relation — Selling Lumber — Approval. See Trespass III. 6. MASTER IN CHANCERY. Deed from — Evidence of proceedings right- ly done. See Deed I. 17. Purchaser under — Recovery in trespass. See Trespass I. 11. MAYOR. A ministerial officer. See Mandamus 13. See Justice of the Peace. " Corporation — Fredericton (City of) MEDICAL ACT. See Pleading I. 56. MEMORIAL. Evidence of incumbrance on land — Bind- ing land. See Lien 6 ; Evidence II. 33 ; Execution I. 2. MERGER. Of aooounts between parties. See Assump- sit III. 60. Judgment obtained — Original cause of ac- tion merged in. See Set-off 9. Judgment changes nature of debt. See do. Tenancy at will — Life estate. See i^eot- ment II. 2. MESNE PROFITS. See IHeotment VI. 86 MERITS. Setting aside judgment on affidavit of merits. See Judgment by Default. MILEAGE. See Costs II. 32, 33. MILITIA. See Alien. MILL DAM. See Dam. See Action on the Case — Covenant— Damages I. 2, 3, 4. — Limita- tion of Actions — Water Course. Mortgagor and Mortgagee — ^Non-liability of Mortgagee for erection of Dam. See Action on the Case III. 2. Use of Dam — Question lefl to Jury. See Action on the Case III. 3. Sluioe-way— Munloipality. The power given to the Sessions by 1 Rev. Stat. c. 63, to order sluice-ways to be made in dams, is vested in the muni- cipalities in incorporated counties by cap. 45. Qutere, Whether it is necessary to prove any of the proceedings prior to the order of the municipality to construct a sluice-way. McLean v. Davis, HU. T. 1865. MINES AND MINERALS. See Crown Grant IIL 1, 2. License to dig. See License. Se« Plead- ing II. 18. MINISTERIAL OFFICER. Mayor. See Mandamus 13. Justice of the Peace — Official Act. See Action at Law XI. 6. MISDESCRIPTION. See BUls and Notes lY. 8, VI. 10. MISNOMER. See Identity — Name — Replevin 21. MISTAKE. Omission in list of Debts. See Evidenc« VL7. Mistake in Statute. See New Trial III. 66. Witness giving evidence. See New Trial n. U, 12. m wmmm 28S MORTGAGE. Beviaed Statutes. The power given to correct mistakes in tlie ftrruigement of titles, etc., of ReTised Statutes, ceases when the text of the Act is printed. See Reg. y. McLaughlin^ 3 AU. 159. Mistake in name. See Name. Mistake in running lines. See Grown Grant 1. 11. MIXTURE OF GOODS. See Replevb 20 ; Trover 26. MONCTON. See Justice of Peace lY. 10. " Election 2. MONEY LENT. See Assumpsit III. 41. MONTHS^ A policy of insurance is a mercantile instru- ment, therefore the term '' months " used therein, limiting the time for bringing an action for loss, means calendar months. Pamare* v. Provincial Inntrance Co., Uil. T. 1873. See Insurance 40. MORTGAGE See Equitable Mortgage. 1— Bztent of Ooatraot— Oonflned to ab> solute estate. A. by deed reciting that he was seised of lands and hereditaments in fee bimple, and being indebted to B. had agreed to transfer and convey to him the heredita- ments thereinafter mentioned for securing the debt; granted, bargained, $old, re- leated and confirmed to B. all the lands &c. and hereditaments situate in the Province of New Btunswiok, of which A. was seised in fee, or any other estate of freehold or inheritance. Held, That the deed was confined to absolute estates, and that as there was no assignment of debts, bbd which A. was entitled to as mortgagee did not pass. Doe dem. Hold- emeu V. Donne^, 3 Kerr 238. t Afloeworr to dslit. 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 assigBment wm put in evidenee ttom J. K. and H. G. K. to the leamrs 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 personal, except as thereinafter ex- cepted," and, after designating certain real and personal estate, assigned all and singular (certain property named in the deed,) and also " debt and debts, sum and sums of money, bonds, bills, notes, secu- rities, vouchers for or affecting the pay- ment 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, bat omitted to describe or allude to the mort- gaged premises, the same were not as- signed by the deed. Held, That as the deed expressly mentioned debts, bonds, and securities for money, the bond debt which the mortgage was given to secure passed to the lessors, and carried with it as accessory thereto the land conttiined in the mortgage. Doe dem. 3umham t. Watts, 3 Kerr 346. 8— Tresent Idgal estate— Mortgage debt. The plaintiff in ejectment claimed under a deed containing the following excep- tion : " subject to an incumbrance of a certain mortgage now in possession and in favor of H." (the defendant.) Held, That these words did not necessarily shew that a present legal estate in pos- session did not pass to the phiintiff 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. Sanson, 3 AU. 427. An executor cannot assign the legal estate in land mortgaged in fee to his testator, unless the land is devised to him. With- out such devise, his assignment will only operate as a transfer of the moitgage debt. Ibid. 4— Liability of Whole land to mortgage —Verbal aagreement— Subsequent partitioii--Frivity— nraud. A., the father, and B. and C, his sons, being joint owners of two lots of laod, mortgaged them to the plaintiff. A. af- terwards conveyed to tne pUintiff land of which be was sole owner, in payment of half tJlie mortgage debt^ sad thsB n> MORTGAGE. leaaed all his interest in the mortgaged lands to B. and 0., who oooapiea the land in common for several years, and made several joint payments to the mort> gagee on account of the mortgage debt. B. and C. afterwards divided we land equally between them by deed of parti- tion. In a suit for foreclosure of the mortgage, B. claimed that as between himself and C his portion of the land had been released by the mortgagee at the time A. conveyed the land to him, and that G.'s lot snonld be first sold to satisfy the mortoage. Held — 1st. That in the absence of any written agreement by the mortgagee, the whole of the land remained equally liable to the mortgage, and should be sold in one lot. 2nd. That if a verbal agreement, and thfr ap- Eropriation of the payment by A., would e suflSoient to release a particular part of the mortgaged lands, it would not bind G. who was no party to it. 3rd. That the subsequent partition of the land be- tween B. and C., in ignorance by the lat- ter of the agreement, by which the portion of the land allotted to B. was to be released from the mortgage, was a fraud upon G., and that such agreement would not be carried out for B.'s benefit. Johnson v. McCartney and others, 1 Han. 220. 6— Operation of mortgage— l^o notice— Bents and prt^ts— Oraas. Where the mortgagee has not given any notice of intention to take the rents and profits of land in possession of the mortga' gor, grass growing on the land will oe deemed to be the property of the mortga- gor, with the assent of the mortgagee, Baxter v. Johnson, Trin. T. 1862. 6-Deed absolute in forpi— Hmtgi^ce. A deed absolute in form decreed to be only a mortgage on satisfactory evidence that such was the intention, and a subse- quent deed Arom the grantor to a third person with 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. Frizzle, Mich. T. 1863. 7-Bnrolment of Begistry— Proyiso (or redemption. Tht) estate of a mortgage in fbe of land, oaoDot pass by deed Qf bargai^ and sale without enrolment or registiy, nor by- feoffment without livery oi seisin. Doe dem. Bumham v. Watts, 2 Kerr 441. The proviso for redemption will not operate as a re-demise to the mortgagor so as to entitle him to the possession of the land until default made, unless there be a stipulation to that effect. Ibid. 8— Failure of condition— meotment— Notice. Where a mortgage deed is given to secure the payment of a certain annual sum on a p^ -ticular day, and the deed contained a clause that until default the mortgagor may continue 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 de- mand of possession. Doe dem, B.yant v. Ounard, 2 Kerr 193. 8— Defence- MortflMee-rAasignee— Statute of I^mtationB. Assignee of mortgagee in posseasioo may set up the mortgage as a defence to an action of ejectment by the assignee of the equity of redemption, though the mort- gage is more than twenty years old, and the right to recover thereon is barred by the Statute of Limitations. See Do$ v. Hanson, 3 All. 427. 10— Statute of LimitationB— Payment by mortgagor Sale of Sqoity of Bedempaon. S. mortgaged land to the lessor of the plaintiff in 1837 and made payment on account from time to time, the last pay- ment being in October 1843. In 1842 the equitv of redemption of S. was sold at Sheriff's sale by a jndgment creditor, and the defendants efaimed under the purchaser. Held, That notwithstanding the nle of the equity of redemption the payment by S. kept the mortgage alive fbr twenty years nom the time of that payment, by I Rev. Stat. o. 139, s. 30, and that the mortgagee could recover the possession. [See Oninnery v. Evans, 10 Jur. N. 8. 86(i.] Do«d.F If the mortgagee purchases the equity of redemption at Sheriff's sale, the mortraige debt is extinguished. McPhelim v. He/- don, Trin. T. 1862. Rolls, Awjust 1846. In re Beckwith, M. 18 — Erection of Mill Dam by Mortgagor — ■ Liability of Mortgagee. See Action on the Case III. 2. 19 — Mortgage paid but not cancelled, — mortgagee has no beneficial interest in the property. Doe v. Baxter, 2 Alt. 377. ao— Svidenoe— Bxeoutor. An assignment of a mortgage by an ex- ecutor is not admissible in evidence with- out proof of probate. Dof v. Hanson, 3 AU. 427. 21— Dtspating title of mortgagor. After foreclosure, a stranger to a mort- gage may dispute the title with the mort- gagor. Doe V. Brown, 3 AU. 433. 22— Insurance. A mortgagor has a right to insure to the value of his property, without disclos- ing the incumbrance, unless stipulation in policy to the contrary. See Insurance 25. Mortgage right — Equitable claim. See Equity 3. Foreclosure. See Equity. ; Liability of land mortgaged. See Equity 12. Surrender by lessee of interest in lease to landlord. See Landlord and Tenant I. 3. Outstending mortgage — Anliwer to plea of property in replevin. See Replevin 5. Defence by Tenant — Mortgage by Landlord. See Landlord and Tenant Y. 22. Title under Mortgagee. See Ejectment II. 6. Contesting Mortgage Title of Lessor in Ejectment. See Estoppel I. 22. Corporation — Validity of Deed to. See Corporation. Trespass — Disputed Mortgage Title. See Trespass II. 7. Estoppel — Action against Mortgagor by purchaser of Equity of Redemption. See Estoppel I. 12. Mortgagee against Mortgagor. See Estop- pel 1. 13. Assent of Plaintifis to mortmge of personal property. See Estoppel I. 16. Asportavit — Purchaser of Deed from Mas- ter in Chancery. See Trespass I. 11. Ilegit.ury-7-irotioe. The registry of a mortgage is not notice of an incumbrance to subsequent par- chasers. Doe V. I*ower, 1 All. 271. NAVIGABLE RIVER. NEGLIOENCE. 28& Purohaaer of Ship-— Notice of prior unre- giaiered mortgage — Injunction to restrain sale. See Shipping Law 3. MOTHER. See Heir at Law. MOTION PAPER. See Practice V. " General Roles 67, 68. MUTUALITY. Agreement to refer signed by one party, whether bad for want of motnality. See Therrmn v. Therrian 4 All. 48. Deed bad for want of mutuality. See DeeO NAME. See Identity. False Imprisonment — Not shewn that plain- tiff known by one name as well as another. See Pleading II. 20. Judgment — Averment of same person. See Pleading I. 58. Identity of person. See Pleading I. ST. Affidavit — Certainty as to name. See Affi- davit III. 5. Judgment— NoTa Sootia. Whether further evidence than mere identity of name was not neoessarv to identify the defendant with the derend- ant in the judgment sued on. See Evi- dence II. 29. Corporate name — Sufficiency. See Corpo- rate Name. Replevin — Claim by wrong name — Assign- ment of bond in right name. See Replevin 21. Parties — Same name — Surveyors— Question left to jury to find who was intended. See Identity. NAVIGABLE RIVER. Obstructing approach to wharf in naviga- ble river. See Action on the Case IV. 3. Cutting Nets — '. L27. IS. See Fisherjr. The right of fishing in a public naviga- ble river belongs to the public, and not to the owners of land bounded on the river. Rose \, Belj/ea, \ Han. 1Q9. Common highway — Obstmotiag navigation of — Damage. See Action on the Case IV. 1, 2. NAVIGATION. Injuring plaintiff's nets. Allegation of cause of injury. See Action on the Case II. NEGLIGENCE. See Action on the Case. Attorney negligently conducting action — Pleading. See Pleading II. 22. See Attorney VII. 3. Surgeon — Negligence — Declaration. See Action on the Cose II. 3. See Evidence III. 10. Penalty — Negligently kindling fire. See Fires. Water company — Damage by fire — Duty as to keeping supply of water. See Water Company Escape. See Sheriff. Fire — Negligence of tenant. See Action un the Case I. 2. Owner and master of steamboat — Collision — Damage. See Principal and Agent 16. Negligence of servants. See Carrier 7. Using improper gear. See Carrier 8. Negligence of master of ship. See Shipping Law. Municipal corporation liable for negligence in discharge of duty imposed on them by their charter. See Corporation 18. 1— Oontributory negUf^enoe. In an action for running down a vessel, if there was negligence on both sides, and the plaintiff, by his own negligence, has contributed to the injury sustained by his voBscl, he cannot recover. Day v. Hatheway, Mich. T. 1862. 2— Question not raised at trial. If in an action ibr ruuuing down a vessel, the dufendaut did not raise any question of contributory negligence on the part of the plaintiff, and the case went to the jury on the points taken by the defend- ant's counsel, he cannot object, on a motion fur a now trial, that the Judge should have left the question of contribu- tory negligence to the jury. Ma,rvini y. fiutterwelt, Trin. f 1867. 286 NEW TRIAL. 8— LafBl ritfit-Obligstion. The dofeodaoU, havi", authority by law to lay oat aad open as,-, ^eta in the City of St. John, laid out a street through 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 defendants, having determined to level and improve the street, made cuttings through the hill for that purpose — several feet deep in some places. The plaintiff had formerly lived in the neighborhood 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. Held, per Allen, J. (Fisher, J., contra), That the plaintiff had no legal right, as against the defend- ants, 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. Hen- derson V. The Mayor &c. of Saint John, Ha. T. 1872. 4— EilUng cattle— Railway Train— Xvidenoe. In an action against a Railway Company for running over and killing cattle on tbo track, the evidence of negligence relied on, was that at the time the cattle wore 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 the head of the train: it appeared, however, 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, aud 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 us it could have been if the engine had been in front. Held, That there was not sufficient evi- dence of negligence to leave to the jury. Falconer v. European and North Ameri- can Railway Company, Trin. T. 1872. The fact that an accident has occurred, is not of itself evidence of negligence : the plaintiff must give affirmative evidenee of negligence on the part of the Railway Company, and if the tact of negligenee is left doubtful, the defendants are entitled to a verdict. Jbid. 6— Boom breaking— ObligatioxL Ry Act 10 Vie c. 72, amended bv 11 Vic. 0. 49, and 17 Vio. c. 52, the South Bay Boom Company was authorised to erect piers and a boom between certain points on the River St. John, for the pur- pose of securing timber and lumher, and was authorized to charge boomage on all 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 lum- ber 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 itae boom, from drifting on the adjoining shores: and no evidence 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 Company, East. T. 1872. NEW ASSIGNMENT. Assault. See Pleading I 12. License. " " II, 17. Seisin. " " II. 18. NEW MATTER. Leave to file affidavits in answer to. See Affidavit VI. 8. NEWSPAPER. Publication in — Presumption. See Joint Stock Company 3. Publication of notice for three consecutive days. See Costa 34 6. Notice in. See License 11. NEW TRIAL. I. Motion — Affidavits — Phaotici. II. For What Cause Obantkd — Suf- ficiency. III. Refusal — Insuffioienot of Rea- son. IV. MlSOBLIiANEOUS. Mot 'When the eq Vic. motion fores I Han S-Kotio Notice trial, m tried th resenret Ber. 83. 8-Topk i Under t thirty d motion fi tings, alt at the tri 636. See General 4-Affldavi Party Affidavits received e bar, canno verdict an< General v, NEW TRIAL. t&l Motion — Aitidavits — Pbaotioc. 1— Iiaue sent down by equity aide of Court. When an issae is sent down for trial by the equity side of the Court under 17 Vio. 0. 18, B. 18, 2 Rev. Stat page 80, a motion for a new trial must be made be- fore a Judge in equity. Hodge r. Reid. 1 Han. 89. S— ITotioe. 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. Flalierty v. Sayrc, At. 83. a— York Sittingi. Under the rule of Court, Mich. 1 Vic, thirty days notice must be given of a motion for a new trial from the York Sit- tings, although points have been reserved at the trial. Turner v. Hammond, 2 Kerr 636. See General Rules 72. 4— Affidavits— Jurora—Witnesfles— Piurty. 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. Attome}/ General v. Bojfer, C. Ma. 78. 5 — On a motion for a new trial, an affidavit stating that one of the jurymen had in- formed the deponent that the verdict was decided by lot, will not be received. Hodgson v. Carr, 3 Kerr 499. 6— 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 in- tended to assign ^hat as the reason for their verdict. Babbit t. Cotepcrthtoaite, 3 AU. 373. 7-WitneaaeB— Affidavits— Difloovery of new evidence. To support an application for a new trial in consequence of the 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. Cqjf v. Gardiner, 2 AIL 91. 8-Disoovery of new evidenoe. In applying for a new trial in consequence of the dueovery of new evidenoe, it should ^ipeir Uist tlM evidenoe was uakaown to all the defendants at the former trial. Smith V. Neill, 4 Att. 105. 9— Bntry on Judge^s notes. Where a new trial is to be moved fbr on the ground of improper reception of evi- dence, counsel should take care that the Juestion is corr ~*ly entered on the udge's notes, hrown v. Taylor, Ber. 343. 10— Question not raised at triaL If in an action for running down a vessel, the defendant did not raise any question of contributory negligence on the part of the plaintiff, and the case went to the jury on the points taken by the defend- ant's counsel, he cannot object, on a motion for a new trial, that the Judge should have left the question of contri- butory negligence to the jury. Marvin V. Butterwell, Trin. T. 1867. 11— lyectment— Verdict for defendant. As a general rule, a new trial will not be granted in ejectment where the verdict is for the defendant. Doe d. Edgett v. Dovmey, Ea»t. T. 1873. 12— Defendant's Deatli— Imposing Terms. Where the defendant died aft»r a rule nijn* for a new trial for improper admis- sion of evidence had been granted on his application, the rule was made absolute on the following conditions: 1st. That the defendant's representatives should enter into an agreement that the verdict should stand as security for the result of the new trial, provided the plaintiff ob- . tained the verdict. 2nd. That such ver- dict should be entered as of the assises, 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 serv- ed on the defendant's representatives and on the attorney on the record. (Wel- don J., diMtmtiente — ^that a new trial was grantable ex dehito justid* and therefore no terms could be imposed. Key V. Thomion, Eatt. T. 1871. Rule nisi — Remodelling of. See Practice VIII. 19. II. Fob What Cause Gbantio — Scffi- CIBNOY. 1— Wrong conclusion of jury. If the Court is satisfied that the jury have oome to a wrong coDclnsion upon mmm 288 NEW TRIAL. the evidence, a new trial will be granted, though it WBB a question involving the consideration of fraud, and was left to the jury oa that ground, and on the credibility of a witness. Doe v. Hatch, 1 AU. 200. 2— Farther inyestigation reqtiiaite. In an action of trespass involving a ques- tion of boundary, where the surveys made had not satisfactorily ascertained the bounds of a grant, and the cose appeared to require further investigation, the Court granted a new trial on payment of costs. Scribner v. MeLauyhliu, 1 AU, 379. 8— Verdict against law and evidence. Where a verdict given for the defendant in an action of ejectment was clearly against law and Evidence, the Court grant- ed a new trial, the costs to abide the event of the suit. Doe v. Watson, 1 All. 675. 4 — The Court is very reluctant to send a cause down to a third trial ; but will do so, on payment of costn, when the ver- dict is clearly against law and evidence. Hartlej/ v. Fisher, 1 All. 694. 6— Improper reception of evidence. Whoro evidence bus been improperly received, a new trial will bo granted, un> less the Court is satisfied that the jury were not influenced by the evidence. McMillan v. Frastr, 2 All. 615. 6 — Where evidence has been improperly received, a new trial will be granted ; and the Court will not enter into an in- quiry whether there is proof enough to support the verdict without the objection- able evidence. Girvan v. Mayor of St. John, East. T. 1866. See Key v. Hum- son, 2 //an. 224. 7— Improper reception of evidence— Fonible influence on jury. Where a deed ofi'ercd to show the defend- ant's title to the land in dispute was im- properly received in evidence, a verdict for the defendant was set aside, though it might have been sustained without tlio deed ; it not being clear that the jury were not influenced by it. Maynes v. Dolan, 3 All. 573. . 8— Abienoe ot Oounael— Terms of rule. Where a cause was tried, us undefended in the absence of the defendant's attor- ney, who was accidentally out of Court in expectation that the case which stood before it would occupy tho whole dav, the Court granted a rule nisi to set aside tho verdict on payment of costs, and on con- dition that the defendant paid the amount of the verdict into Court ; the plaintiff to be at liberty to consent to the rule being made absolute and to go trial at the fiitt Circuit. McLean v. McDonald, Trin. T. 1864. 0— Perverse verdict. Where the verdict is perverse, a new trial will be granted without argument of the questions involved in the case. (See Hawkins t;. Alder, 18 C. B. 640.) Alli- son V. Robinson, Mich. T, 1871. 10— Verdict— Point not submitted. Where the only question left to the juvy was the mental capacity of the defi^raant to execute the deed on wb'ch the action was brought, and a verdict was given fur the defendant, one of the jurors stating at the time that it was " from the defend- ant's not being fully acquainted with the contents of the deed," tne Court granted a new trial ; the defendant's ignorance of the contents not being sufficient to war- rant the verdict, if he wub competent to execute the deed. Babbit v. Cmcper- thwaite, 3 All. 373. 11— Mistake of witness. A new trial Ui&y be grantcu in conse- quence of a mistake made by a witness 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. Albee, 3 All. 376. 12— Mistake of witness— Immaterial as to result. It is no ground for a new trial, that a wit- ness fcr the defendant made a mistake in giving his evidence as to the contents of a letter, which mistake he wished to cor- rect ; the Court being satisfied that the evidence as corrected together with that given by defendant Ivould bo no answer to the plaintiff's ease. McGeey. Wet- Mich. T. 1861. more 18— Discovery of new evidence— Sur- prise. Plaintiff in ejectment relied on an ad- verse possession of fourtuon years in A., her flither, and possession in herself after his death in 1832, mat'iiig together twen- ty years. Tho defendant held under a lease from the Corporation of Saint John, the grantees of tho land. After a verdict fur tlie plaintiff, the defendant's attorney in consequence of the evidence of one of the plaiDtifl''s witnesses, searched tho records and found a oonTeyaoce fVoiu A. of his in 182 ground (referre ascertai der a ie John, w A. in as held as i this evid ing no n nut was ' new tria costs I 14-Verdi( -Un , trial! Where t goods sok tent with new trial costs, unl reduce the of the goo witness. 15— Varlanc — Ohjfl Where the tion of trei tion delive property tal sel, in his A of which tq knowledge,! set aside, tl had cro0s-e| ence to sue, ing been o| the case. 122. le-Verdictl The dotenq preniittos m made in 18] nnd alleged was tostifiti] was romev 1816 he „ the granted security fol on paying F deed of thuj bjf A. 8., nl deed of th/ which deej uiontionod oonfiruiud prciuisoa al NEW TRIAL. t8l of his interests in the lands to R. dated in 1821, describing it as " corporation ground ; " he also upon enquiry of B. (referred to by the plaintiff's witness,) ascertained that 11. had held the land un- der a lease from the Corporation of Saint John, which had since expired, and let A. in as his tenant in 1818, and that he held as such until his death. Held, that this evidence was material, and there be- ing no reason to suppose that the defend- ant was before aware of its existence, a new trial was granted on payment of costs Doe V. Baker, 3 AU. 591. 14— Verdict inconsistent with evidence — Unless terms aassented to, new trial granted. Where the damages in an action for goods sold and delivered, were inconsis- tent with any view of the evidence, a new trial was ordered on payment of costs, unless the plaintiff consented to reduce the verdict to conform to the value of the goods as proved by the defendant's witness. DeMill v. Foshay, 4 AU. 86. 15— Variance— Description of property —Objection. Where the NUi Priut record in an ac- tion of trespass varied from the declara tion delivered, in the description of the property taken, and the plaintiff's coun- sel, in his opening, claimed for property of which the defendant had no previous knowledge, a verdict for the plaintiff was set aside, though the defendant's counsel had cross-examined the plaintiff in rofur- enoe to such property — the variance hav- ing been objeoteid to at the opening of the case. Brocheau v. Deabrisay, 4 AIL 122. le-Verdiot against evidence. The defendants claimed title to certain premittes under a deed sworn to have boon made in 1815 or 181C, but never recorded, nnd alleged to have been destroyed. It was testified by a witness, whose evidence was ruuiowhat shaken, that in 1815 or 181 G he purchased the promises from the grantee ibr X40, and gave one O. as security for the purchase money; that on paying the purchase money uo got a (loed of the premises, which was witnessed by A. S., and that allerwards he made a deed of the same premises to Q. and C, which deed was copied from the first uiontionod deed ; and this stiitemunt was confirmed by O. as to the bargain for the promisos and paymoot of the purohoae 87 money ; and by S., that he had been oalled on to witness such a deed ; and by the deed to O. and C, which referred to the first deed: a verdict against such firet deed was set aside as against evidence, and a new trial ordered. McEachem v. Fet' guttm^ 3 Kerr 242. 17 — A verdict against the weight of evi- deuce, oq a question of boundary, was set aside by the Court, and a new trial granted, on payment of costs, though the cause had been tried by a special jury of view. Londietter v. Murray, 3 Kerr 335. 18— Verdict against evidence— Statute of Limitations defeating action. Where the verdict is against evidence in an action of ejectment, and the Statute of Limitations may defeat the plaintiff before he can bring a second action, the Court will grant a new trial. Doe dem. Eitahrooks v. Humphrey, 1 Han. 104. 19— Insufficient evidence— Verdict con- trary to Judge's charge. Goods were levied upon under an execu- tion, bat not removed by the Sheriff, the defendant having paid the amount. In an action of trespass against the attorney (the execution having been afterwards set aside for irregularity) the plaintiff gave no evidence that the goods were his property or in his possession at the time of the seizure, and the Judge directed the jury to find for the defendant, but they found a verdict for the plaintiff; the Court granted a new trial. Wihon V. Street, 3 AU. 80. 20— Misdireotioc of Judge. Wher6 the Judge had misdirected the jury, the Court grautud the plaintiff a new trial, though they were of opinion that his right was barred by the ^tute of Limitations — tliat objection nut having been taken on the trial. Doe v. Baxter. 3 AU. 306. 21— Judge's ruling on point of law- Influence on jury. Where the jury found a question of fact for the plaintiff, although there was a clear preponderance of testimony on de- fendant's side, and the Court were of opinion that in consequence of the ruling of the Judge on a point of law, under which the plaintiff would recover in any ouBo, the question of fact might have re- ceived less consideration than it was en- titled to, a new trial was ordered. Uoyt V. Stockton, 2 JIan. 60. 290 NEW TRIAL. n— I|i«ii|B«ient> «vid«iioe^Or9o« dem, Sandi i. Phitpi, 1 Kerr 688. ^■fpiillpp^ mmmm NEW TRIAL. 291 82— Verdiot inooiudaMnt with eri- denoe, and not in aooordanoe trith JudjKe'a dharge. The jvj having, upon the neooad trial of an action of trespass against the She- riff for taking timber, found a verdiot for the plaintiff for 4200^ the value of the tioiber being over £900, and having been directed to find for the plaintiff for the value of the timber as being hi* property, or for the defendant, as being D/s pro- perty, under an execution against whom detendant had seized and sold the timber.; the Court, on the application of the plain- tiff, set aside the verdict and granted a new trial on payment of costs, Connell V. Miner, 2 Kerr 116, 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 plaintiff or D. was the true owner, was not considered sufficient to sustain the verdiot, as this was not stated as the ground of the verdict, and was inconsistent with the position of either party. Ibid. 83— Verdiot not oomJlned to proper damages. In trespass, where a boundary was the prominent question 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 tha 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 plaintiff, stated that tney found the line claimed to by the plaintiff to be the correct line ; a new trial was sranted, it not appearing to the Court that, on such finding, the jury had confined their damages to the trespass for cutting the trees. L]fon$ v. IHerritt, 1 All. 91. 34— BzoeaalTe damage. In an action against a surgeon for negli- gence in treating a patient, whereby it was alleged that he lost his hands and feet, a verdict was given for the plaintiff for 126,000. Held, That the damages were excessive, the jury having found, that, without any negligence, the plaintiff would have lost a portion of -ftis hands. In such a case, the Cdurt ordered a new trial, though the plaintiff WaA .willing to assent to Veduee the ainottnt of the ver- dict. Keyv. Thdikm.l Bttii.29T: SSrr^Sridenoe obscure. A new trial will be granted on payment of costp, whf>re the evideop« is obscure, and the case requires furtJiecTifivesUga- tion to ascertain whether justice has bwn done. Fid4et v. ffaiiUr^oH, C. M*, 47. da^Bfeotment—ihrtdittoiB obnflidtinig— Proponderanoei A new trial will be granted in an action of ojeetownt, where the^verdiet fitr the plaintiff would change the possessbd) the evidence being conflicting fto4 preponder- ating in favor of the defendant, . J^oe d. Thompton v. i>ettar, iK/.i 21:1821. See Supra I. 11. ^^ '■ < "« 87— Surprise— Cause unezpdctedly called on. The Judge at Nin PHu» stated on Wed- nesday that he would not oontinue the Court beyond the following Saturday night, except for the purpose of finuhing a CGUse then on trial, ih consequence of which, a material Witness fot the defend- ant in one of the causes on the docket left the eounty oft Friday morning by the consent of the attorney (there Ming then no prospect of the cause in which he was a witness being reached that week) ; oU Saturday evening the Judge stated that he would finish the cause then on trial that night, and call on the next case, being the case in which the witness had kn the eounty, on Monday morning ; and the cause was tried accord- ingly on Monday under a protest by the defendant's counsel, against the cause being tried in the absence of his witness, and a verdiot given for the plaintiff. Held, That the defendant was entitled to a new trial on the ground of surprise ; and that his right was hot waived by his counsel attending at the trial, And making the best defence he could under the cir- cumstances. Meehan v. Sawttier, Eatt. T. 1871. 88— Verdiot oontrary to Judge's olifunKe —Important principle mvolTed— Though damages small. Where a verdiot is eontrair to the Judge's oharee, a new trial will be granted, though the amount of damages which the plaintiff would be entitled to rec9V0|r is small, the principle involve<| MS NEW TRIAL. Freiuh T. 'M'.[ (JiU in-j. ID fe\ie floae beiog importaat. HtMlffin, Trin T. 1833, 89— Clear i^iint o^ law.' On a el0ar point of law, ihe Conrt will aet Amde>the verdict to^/«« quotien wbere there is an improper finding by the jury. Uttabrooks y. Or$er, 1 Kerr 57. 40— Oatiae tried as uiiidefended— Vaiee •tatement. Where a canse was tried out of its order, and in the absence of the defendant's attorney, on (be statempot of the plaintiflTs counsel that it was undefended* wtQ ver- dict was set aside on an affidavit of merits, and that defendant had intended to de- fend it. Sayre v. Stevet, Mil. T. 1861. 41— Flan used by jury without oogni- nnoe of Judge or party— Afflda- vit of juror reftuwd. In an action of trespass to try a disputed boundary, one of the witnesses, during the progress of the trial, made a plan of the land and gave it to one of the jurors, explaining to him what the plaintiff claimed: this ptan was used oy the jurors without the knowledge of the Judecj or of the defendant's counsel, a vermct for the plaintiff was set aside on this ground, without any examination into 9>e merits of the case, the Court refusing to hear a&davits from the jurors ^at thoy were not influenced by the plan. Ou/fonv. Bqm)»^, Ea$t. T. 1873. III. RsrusAL — Insuitioienoy op Reason. 1 -Not takins advautace of available evidenoe. Where plaintiff in trespass ;. c. /. had it in hb pow6r to shew definite bounds, but relied on the unoertain lines of another grant, and the jury found against him, the Court refused to disturb the verdict. jBal«« V. LjftMf Ber. 63. il— ITiioonfloionable deflBnoe— Belease. The Cpurt will not set aside a verdict obtained in an undefended oauae, to en- able the doibndant to set up a release given by the plaintiff before trial, where )t appeared that he was living out of the ^ttn^ry, Mparated froili his wife, and that the uotioD vmia brought by ber for wages due firom the defendant, ailor her hus- band had abandoned her. Clarke v. Robinaun, Ber. 86. inliiginary dami^es.' Ber. 325. Wihon T. Eillt, -Imagiiuunr damafeia. A new tml will not bo granted for 4— Point not raised on trial— Nominal damages. The Conrt will not grant a new trial on the grounds that nominal damages should have been given when the point was not raised at the trial. Roger* v. Peck e,t al., Ber. 318. 6— Assault— Injury slight. A new trial was refused in an action for assault and battery, where the verdict was for the defendant; though it was against the Judge's direction ; the injury being slight, and the defendant assenting to a ttet proceatus. Moore v. Ogden, 1 Kerr 278. 6— Plaintiff's claim not exceeding £6. The Court will not set aside a verdict for the defendant and grant a new trial in an action of common assuinpsit, on the p;round of the verdict being against evidence, where it dearly appears that the plain- tiff's claim does not exceed £5. WiUkton V. WaUh, 2 Kerr 181. t 7— Oaiise tried as undefended— Letter not received in time. An application for a new trial, on the ground that the cause was tried at Wood- stock as undefended on the 27th Septem- ber, the second day of the Court, owing to a letter of the defendant's attorney, giving instructions for the defence, not having been delivered at the post-office in Woodstock, when inquired for on the morning of the 27th, although it had been received at the office on the previ- ous evening, wits refused; it appearing that the letter was not dispatched fruui Saint John, Where the attorney resided, until the 26th, and could not reach Woodstock until the evening of the day the Court opened. Smiley v. Winslow, 2 Kerr 349. 6— Due diligence not used— Terms of new trial. A cause was called on in regular course, and tried in the abaonce of the defendant and his counsel on the first dav of the Court. A new trial was refiMea, except on the terms of paying money iaU Court or giving security, it appearing that al- though the defendant's absence was acui- dental, ho had not nsed due diligence either in preparing for trial, or getting to the Conrt. Oibbi v. i^leailtnan, 2 Kerr 406. NEW TRIAL. 0— Disoorery of new eTidenoe— AiBda- vit— Several trials. The Court refused to set aside a verdict for the plaintiff, and grant a new trial, on the ground of discovery of new evi- dence, upon the affidavit 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 circumstance until after it wns concluded. The facts were particularly set out in G.'s affidavit, which was however expressly contradicted by other affidavits ; and there were affidavits of six respectable persons, that G. was a man of bad character and utterly unworthy of credit. The cause was of large amount, had been three times tried, and occupied several days each time. Connell v. Miller, 2 Kerr 433. 10— Absenoe of defendant* s counsel from Court. Where a cause was tried as undefended, in consequence of the defendant's counsel not being in Court when it was called on, the Court ref\ised a new trial, thou;;h the amount in dispute was large, and the de- fondant swore that he hr ^ ' good defence; but the defence appeared to arise out of partnership transactions between them which remained unsettled. Doherty v. Hogan, 2 Kerr 492. 11— Damages not outrageous. A new trial will not be granted in an action for a malicious arrest, on the ground of excessive damages, unless the damages are outrageous. Wentworth v. HaUett, 2 Kerr 560. 12— Damages— Question for jury. In an action of trespass, the amount of damages is entirely for the consideration of the jury, and the Court will not in general disturb the verdict. Hadden v. White, 2 Kerr 636. 18-Damages— Contrary to direction of Judge— IVot exoe"^,;', T.ii;> rtiiv. 46— Jury separatinir ttfMr the Judge's charge. The jury separating after the Judge's charge, and before verdict, will not in- validate the verdict, if there has been no tampering with them. Lymbum v. De- Veber, JIU. T. 1828. 46— Jury lodging and boarding at SlaintiflTs house— Necessity— To improper conduct. Where a jury of view supped and slept at the plaintiff's house after completing the view — Held, No ground for disturbing a verdict for the plaintiff, it appearing that no commuuioatiou respecting the suit had taken place between the plaintiff and the jury ; that there was nu inn within ten miles of the placu, and uo hou^ near except the plaintiff's and his son's, vhere all the jury could bo accommodated ; that the jury were tiiken to the plaintiff's house by the Deputy Sheriff, who attend- ed them, and who objected to their separating ; and there was no complaint that the verdict was against evidence. tSpence v. Trenholm, 1 Ilan. 77. See Supra II. 30. 47— FlaintiiT entitled only to nominal damages. Where the Judge improperly directed the jury to find for the plaintiff with nominal damages ; but they found for defendant— the Court refused a new trial — it being an action againt the Sheriff for an escape, in which the plaintiff oould, at most, have recovered nominal damages. Atkin- ton V. Mitchell, Trin. T. 1865. 48— Rejection of evidenoe— Immate- rial deed. Whore a deed wad improperly rtyectod ; but it was clear that it would not have proved title in the defendant — the pur- pose for which it was offered — a new trial was refused. Dor. d. Sherlock, v. Foweri, Uil. T. 1865. (See E. India Co, V. Paul, 7 Moores P. C. 109.) 49— Evidence inconsistent— Possessioa The duibndtint claimed a lot of luud by adverse posseHsion, stating that ho had beea.pat io .posM g iion \ty the owner (n»co NEW TRIAL. 297 deceased) more than twenty years before the action. The land was principally wilderness ; and the jury having found a verdict for the plaintiff for all except the improved land, the Court refused a new trial — the defendant's evidence of having been put into possession being inconsis- tent with other facts in the case. Doe v. Guiggif, 4 AU. 602. 60— Nominal damagea. The Court will not send a case down to a new trial to recover merely nominal damages. See Belyea v. Ham, 2 Han. 27. 61— Miaoonduot of juror— Objeotion— OliaUeDge. The proper mode and time for objecting to a juror is by challenge when he is called to be sworn ; therefore where an ap- plication is made to set aside a verdict for misconduct of a juror, all knowledge of the ground of objection until after the jury were sworn should be positively denied. Olive v. Belyea, 1 AU, 463. An offer to a juror to bet a treat upon the result of a trial, which he accepted, but swore he never afterwards thought of, and did not . consider as a bet, is not a ground for setting aside the verdict. Ibid. 62— Jurata— Miatake in. A mistake in the jurata of a nisi priua record is not a ground for a new trial. Palmer v. Gilbert, 1 All 605. 63— Varianoe— Declaration and record. A variance between the copy of declara- tion delivered and the niti priut record, which did not appear to have misled the defendant and could not reasonably do 80, is not a ground for a new trial. If discovered before the trial, it might be amended on motion. Portland Ferry Co. V. Pratt, 2 All 17. 84— Amendment— Lateneia of— Con- sent rule. A consent rule was entered into by mis- take, for more land than the defendant claimed. The day before the Circuit Court he obtained a Judge's order to amend the consent rule by confining it to the land in dispute ; the plaintiff entered the cause the first for trial, and a ver- dict was given for the defendant. Held, That the lateness of the amendment was no ground for disturbing the verdict, and that if it was likely to prejudice the plaintiff it should have been urged before the Judge. Doe y. Baxter, 2 AH. 377. 38 66— Point not distinotly roM Mistake in Statnto — Gknreo- tion. By the acoideatal omissioD of the word " not " b the Rev. Sut. c. 126, the ac- tion for use and occupation was given on a demiso by deed. In assumpsit for use and occupation on a verbal agreement, this Statute was not brought to the Judge's notice, but it was objected gen- erally that the plaintiff eoold not recover. On a verdict for the plaintiff the Court refused a new trial— the mistake iii the Statute having been riectified. Seery v. Brayley, 3 AU. 315. In such a case the defendant should have tendered a bill of eiTceptions, and not ap- pealed to the discre^on of the Cpurt. Ibid. \ ' ' 66— Irrelevant testimony— Not submit- ted to jury. A new trial will not be granted though evidence has been improperly received, if such evidence is altogether irrelevant to the issne, and was not submitted to the jury, and their verdict was expressly given on grounds entirely independent of such evidence. Bryton ▼. Hamilton, EaU. T. 1873. IV. MiSCELLANKOUB. 1— Abandoning ground on which rule nisi was granted— TUdng differ- ent ground. In an action by a Church Corporation, the defendant obtained a rule nisi for entering a non-suit on the ground that the induction of the Rector was not proved. Held, That he could not after- wards abandon that ground, and admit the induction, in order to defeat the action on a different ground. Doe ▼. Sweeney, 1 AU. 416. S— Allowing verdict to stand for nominal damaj;es. B. agreed by a note in writing to pay A. £20 in lumber by a certain day, before which time A. assigned the contract to C. Held, That B. was not bound to recognise the assignment, but might de- liver the timber to A., which would be a good disohai^. Green v. WUlitton, 3 Kerr 58. The delivery, however, not having been made until after the commencement of the action, a verdict which had been given for the plaintiff was allowed to stand for nominal damages. Ibid. 298 NEW TRIAL. NISI PRIUS— (ORDER OP.) S— Wrong Terdiot. If the jary find a rerdict for the defendant in ap action of libel, the Conrt will erant a new trial, if they think the verdict is wrung, though the Jadge lefk the ques- tion of libel to the jury without express- ing any opinion upon the writing. An- drew V. Wilmm, 3 Kerr%Q. 4— TrMMM afaiiiat tbree deiSendaiitB — verdUn asainst two. Quart;, Whether, where the two defend- ants are clearly liable, the evidence of the trespass by the three is ground for a new trial. See Atkinnon ▼. McAuley, 4 All. 243. 6— Juryman— Affinity. The tact of a juryman, who is open to ohalienge, having served on the jury, is not, per se, a ground for disturbing the verdict ; but when a juror was connected by affinity with one of the parties inter- ested (a fact unknown to the opposite side till after the trial), the Court con- sidered this feet in connection with the other circumstances of the ease in deter- mining on the propriety of granting a new trial. Tuck v. Harding, Trin. T. 1867. See Supra III. 36. 6— Court divided— Bule nisi granted. When the Court is equally divided upon argument, a rule ni$i falls to the ground and the judgment follows the verdict. Gaudin V. McKUligan, 2 All. 477. 7— Term*— Oosta It is discretionary with the Court on granting a new trial, to require the pay- 8 ment of costs; but if the verdict was contrary to law or to the Judge's charge, it is usually granted without costs. The Bank of B. N. A. v. Travis, 2 All. 643. —Costa— Bule Bileiat as to. If the rule for a new trial is silent as to costs, the sttoceflsftil party oo the new trial is not entitled to the costs of setting aside the first verdict. Wddon v. Weldon, 3 AU. 148. 8— JLllooatttr— Shewing cause. A new trial having been granted oo pay- ment of costs, an allocatur allowed for ■hewing cause was taxed acainst the party who obtained the new trial. Held, That such taxation was wrong, and the costs accordingly entitled to be deducted. McEachem v. Ferguson, 'A Kerr 356. 10 — Costs — Condition — ZTon-payment. Where a new trial has been granted on payment of oosto, and the eosts have been taxed and demanded of the attorney of the party who obtained the rule, who was informed that unless the costs were paid, an application would be made to diHcharge the rule; the Court granted a rule tor that purpose absolute, nnless the costg were paid in ten days after service. Scribuer v. McLaughlin, 1 All. 440. Costs to abide event of suit — Same party succeeding — Costs of shewing cause. See Costs 95. When verdict against Judge's charge, ncv trial f «nted without eosts. Doe dem. Blair v. Chace, 3 All. 602. ll-Several oounts—Verdict sustainable on one— Bejeotlon of witness— Cross examination— Evidence. Tn trespass qu d. /regit and for cuttinW (! • ? I 1— Otdflotion f^ipwent onseoord. Where a plaintiff has no right in law to recover, a non-suit will be ordered, though the objeotiMi aMean u^wa thb record. See Next Cases 2, 3, 6. Fisher v. Jew- eft, Ber. 33. 2 — If the ddfisndant takes issues upon the facts alleged in the declaration, and they are proved, the plaintiff cannot be non> suited on the ground that these facts do not disclose a cause of action; but the dfifeodant must move in arrest of judgment. New Brwuttick and Nova Scotia Land Co. v. Kirk, 1 AU. 443. 8— Oanae of aotion proved as alleged. Where that which is laid as the cause of action, is proved at the trial, the plaintiff cannot be non-suited on the ground that the facts charged do not disclose a cause of action. (Jameron v. Beardsley, 2 Kerr 598. 4— Voluntarily becoming non-suit. Where a party voluntarily becomes non- suit, he cannot afterwards move to set it aside, and obtain a new trial on payment of costs. Thame v. Bedell, 3 Kerr 339. 6— Discharge of jury— No rerdiot— Points resolved. When no verdict has been given, in con- sequence of the discharge of the jury, a non-suit will not be granted on a point reserved at the trial. Doe d. Duncan v. Christopher, Ber. 83. 6— Material Allegation— Jfailure in IHroofL Though the declaration does not set out a good cause of aotion, and was therefore demurrable ; if the alleged cause of ao- tion is not proved, the defendant is en- titled to a non-suit. Thus, in an aotion by overseers of the poor against the de- fendant, for bringing paupers into the parish, who became ohargeaole — alleging that the plaintifis, as overseers of the poor, were compelled to provide for the paupers; if it appears tha( the plaintiflb were not overseers at the time the paupers were brought into the parish, tney fail in proving a material allegation. OiBet- pie V. Phiaips, Mich. T. 1861. m IM ii fsm^^^ 300 NOTICE. NOTICE OF MOTION. 7— Opinion of Judge oxpi o w w d — Ver- diot by oonaent. Where, at the trial, a non-Buit was moved for, and apon hearing the tminion of the Judge, a Terdict was taken by oonaent of coansel^the qneation cannot aflerwards be raised aa to whether the eaae should have been submitted to the jury. Reed T. Welthm, 1 Bm. 458. 8— Altorvevdlot but beff the Poor, not having any corporate rigt.'a, cannot maintain an action against a person who brings pau- pers in tho Parisn, who become charge- able thereon->->Bttoh act being no injury to the Overseers individually. GiUttpte V. PhiUqn, Mich. T. 1861. OWNERSHIP OF PROPERTY. See Property. PARCHMENT. Sufficiency of material. See Burns o. Burns, 4 All. 229. See General Rules 83. PARISH OFFICER. See Appointment of Officer. PARISH SCHOOLS. See Assessment II. Trustees dividing Parish— Calling meeting— Double purpose. A majority of the Trustees of Schools have power to divide a Parish into School Districts. Ex parte Yeatt, 4 All. 381. An application to Trustees to divide a Parish into School districts, and to call a meeting of the inhabitants to determine upon an assessment under the Parish School Act 21 Vic. c. 9, may be made at the same time ; and if, on the division of tho parish, three or more of the appli- cants are found to be resident freeholdurs in the district for which the assessuiutit is required, tho trustees may call ihe meeting without any now npplioation. Ibid. A pnll-tax may be levied under the Parish School Act. Ibiil. Dismissing Toucher. See School Teacher, See Common School Act. PAROL EVIDENCE. See Evidence. PARTICULARS. Sulflciency of bilL A bill of particulars which gives substixn- tial information of tho plaintifTs deuiaud and does not confine the claim to any particular count, or mislead the defend- ant, is siffioientto let in evidence under any ci.unt to which tho same mtiy bo applicablo. Oi ml v. Aiken, Bcr. 259. Tho plaintiff's bill of particulars was dated at Liverpool, England, and made up in sterling money. Hold, That without an affidavit of the defendant, that hit was misled by it, it was sufficient to warrant tho jury giving a sum sufficient to cover the dimirenco of ezohango. Campbells, WihoH, Her. 265. Defect supplied by. VI. 14. See Billa and Notes PARTNERSHIP. 303 Demand of — N«>t a stop in cause. Jir>7iu- ston V. Glazier, C. Ma. 141. Andrews V. Hanson. 1 AH. 509. Signing judgment by default on bill — Prac- tice City Court. See City Court. Recovery under Common Count — Counsel not claiming under, in opening case. See Trial. PARTIES. Sec Action at Law. " Husband and Wife. " Partnership 5. PARTITION. A., B. and C. owned lands as tenants in common; A. being under age her father made a partition with B. and C. in 1810; in 1814 A. married, still being under age, and her husband occupied the share al- lotted to her until his death in 1842, and six years after she objected to the par- tition, demanded possession of B., and brought ejectment. Held, That the par- tition having been fair she was bound by it, unless she objected within a reason- able time after her coverture ceased, and that under the circumstances six years was not a reasonable time. Qumrc, Whether a demand of possession upon B. without any offer by A. to relin- quish any part of what she was in posses- sion of, was a sufficient notice of her dissent to the partition. Quierc also. Whether A.'s right was barred by the Statute of Limitations 6 Wm. 4, c. 43, she having brought her action within ten years after her coverture ceased, and within forty years after her right occruod, though not within twenty years after she became of age. Doe tleni. Eslabrookt v. Uarrit, 2 All 42, PARTNERSHIP. Whether contract personal or with firm^ Question luft to jury. See Cout -act 16. 1-What oonatitutoB partnership- Proof. Whore J. and N. B., who carried on busi- ness as general partners, had certain mill property and transactions relative there- to, the direction and management of whicii II. appeared to bo taking a part, though the nature of his agreement with J. and N. B , or his interest in the mills wns not shewn ; and the plaintiff, who had extensive trausoctions with the firm of J. and N. B., stated an account with them, whereby they admitted a balance due the plaintiff. Held, That H. was not jointly liable therefor, it not appear- ing that he was a partner in fact, or held himself out as sucn, and that his connec- tion with J. and N. B., being at the most a special partnership in regard to the mills, would not make him liable for the general cngiigements of the firm of J. and N. B., but only for such as related to the special partnership. Circum- stances which are equally applicable to a projected company, or security for past advances, am uoi, sufficient of themselves to raise a presumption of partnership so as to create a joint liability in two per- sons where the credit has been given to one. McPhcraon and anotJier v. Jlonkina and others, 1 Kerr 430. 2 — As to the sufficiency of proof of partner- ship this may vary according to the nature of the demand and residence of the parties. Pollock v. Cunard, 2 Kerr 291. 3 — Under law allowing parties to be wit- nesses, it is not necessary to call plaintiff to prove partnership. See Evidence III. 9. 4 — Evidence of a witness who had dealt with all the plaintiffs as ^tartners and purchased goods and settled accounts with the firm for several years held suffi- cient lo prove partnership. Jiankin et al v. Hurley, 1 llan. 271. 6— Contract— Parties— Liability. W. R., one member of u firm entered into a contract under seal, in his own name, with P., for building a vessel, which was, in fact, to be the property of the firm. After the vessel was finished, a settlement in writing of ac- counts took place between the plaintiff (iictitig on behalf of P.) and the firm, in which a balance was found due to P , which W. R requested the plaintiff to pay. Held, in nn action against the tirm for the money paid to P., That, as it was not founded on the original agreement for the building of the vessel, but under n separate agreement with the firm, — that they were liable. Harrit v. Robert- mn, mil. T. 1860. 5 a— Actions by and against. A promise to one member of a firm lo pay him for work connected with the ■vt ■! I I 304 PAYMENT. PEKJURY. partnership business, perforuied by him ibr the defendant, enures to the benefit of the firm ; and the partner to whom the promise was made cannot sue alone. Hartley v. Fnlier, 1 All. 694. 6— Guarantee. A guarantee by one pnrtner in the name of the firm for a matter not relating to the partnership business, will not bind the firm. Marks v. Wright, Hit. T. 1828. Pleading — Allegations — Proof — Variance. See Bills and Notes VI. 10, 11. 7 — Non-joinder of partner can only be taken advantage of by plea in abatement. Kel/if V. Balloch, 2 Kerr 699. 8— Powers of membera. 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, liaj/' moiul\. JUcMdhon, 4 All. 524. Statute of Limitations — Payment by one partner. See Bills and Notes V. 26. Execution of deed by partner — Ignorance of oo-partner. See New Trial III. 34. Recognition of Warrant of Attorney. See Warrant of Attorney 8. PATENT. If Letters I'atent refer to a specification and description of the invention, as being filed in the Provincial Secretary's oflioe, they form part of the Letters Patent, and must be produced in an action for infringement of the patent. Lusk v. Miller, Mich. T. 1872. Where a Patent is claimed, not for a dis- covcrv or invention, but simply for a combinatioa of a number ot old and known materials, it is no infringement of the patent to use a part of this combi- nation. I bill. See Bailoe- PAWNEE. -Trover. PAYMENT. See Action at Law (Former Recovery.) Pleading payment — Inference flrom Beceipt. Debt on a rocogniiance of bail — ^judg- ment against the principal, for £23 ; the defendant pleaded payment by the prin- cipal, and guvo in evidonco a receipt tVoui the plaintiff to him for £11, "in full discharge" of the judgment. Held, That it could not be interred from the receipt that this sum was a balance of the judg- ment after a previous payment, but that it was taken in satisfaction of the whole and therefore the plea was not proved. Garcelon v. Eaton, 3 All. 411. Payment by bill — Agent unauthorized to receive. See Principal and Agent 8 Assignment — Actual payment. See New Trial II. 23. Payment of rent. See Landlord and Tenant, Payment talking case out of Statute of Limi- tations. See Limitation of Actions II. Rebuttal of presumption of payment. Sec Evidence Vl. 7. Money paid under mistake. See Assumpsit III. 17. Appropriation — Want of Privity. See Bilk and Notes V. 20. Application by law — Set-off — Right to shew appropriation on cross-examination. 8uo Evidence VIII. 7. PAYMENT OP MONEY INTO COURT. See Evidence X. 9, 10, 11. PAYMENT— DEMAND OF. Note payable on demand. See Bills and Notes V. 11, in. 4, 16. PAYMENT— PRESrjMPTION OF. See Assumpsit III. 44. PENALTY. Set off. See Executors and Administrntora I. 3. See Justice of the Peace. Soo Criminal Law. Negligently kindling fire. See Fires, PENDENCY OF OTHER SUIT. See Pleading II. 39. PEREMPTORY UNDERTAKING. See Judgment as in Coso of Non-suit. PEIUURY. Soo Criminal Ijuw. PLEADING. oW Juriadiotion to take oath— Prayer Book. Id au action fndition precedent — Want of aver- ment. Tho following clause in a marine policy of assarance, viz. : " and in caoe of loss, snch lom to be paid iu sixty days atlcr proof of loss and adjustment, and proof of interest ID 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 avernieut in the declaration, that such preliminary proof had been furnished to or dispeu-sod with by the defendant. Watson v. Summers, 2 Kerr 101. 84— Corresponding proof— Description. Where in replevin the place of taking is described not by name but by abuttals — Held, That it is not necessary on tho plea of non ce^filt that the place should be proved to be in one occupation, and that the calling it a " close," where different parts of tlio land within the abuttals are held by several parties, is not material, the defendants not having been misled by the generality of the description. Mills v. Dewltt, 1 Kerr 486. 85— Administration bond— Necessary Statement. In an action on an administration bond under the Act 3 Vic. c. 61, as.'iigning as a breach adevastavit by the administrator, it must be stated that the estate of the 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 bunds of the defendant us administrator, necessarily shews that they were the goods of the intestate. Ibul. 36— Inferior Court— Claim arising with- in jurisdiction— Proeeedings. In declaring in the Inferior Court of Common Pleas, it is not necessary to al- lege that the demand arose within the jurisdiction of the Court. Stephenson v. McLtlUm, 1 All. 19. In an action on a judgment obtained in the Court of Common Picas, it is sufficient to state the recovery of the judgment, with- out setting forth the prior proeeedings. Ibid. 87— Policy— Insurance— Conditions- Averments. In a fire policy, the insurers by an in- dorsement thereon, consented that tho loss should be payable to the order of W. Held, Sufficient in a declaration in cove- nant on the policy to allege that the Inga 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. io fuvor of the assured. Ketchum v. The Protection Insurance Co., 1 All. 136. By the tenth condition attached to the policy, it was stipulated " that in the eve:.t 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 od the property insured, and iu what general manner (us to trade, manufactory, mer- chandize, or otherwise) the building cou- tiiiniug the property insured, and the several parts thereof, were oceupieil at the time of the loss, who were the occu- pants of such buildings, and when and how the fire originated, us fur as he kuew or believed, and that the assured should procure a certificate under the hand and seal of a magistrate or noUiry public ( most contiguous to the place of the fire, and not concerned in the loss as a credi- tor, or otherwise related to the assured), that he had made due enquiry into the cause and origin of the fire, and also the value of the property destroyed, and wus acquainted with the character and uir- cuiiistances of the assured, and did verily believe that the 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 to have hap- pened on the 29th July 1845, and that the compliance with this condition, in respect of notice of the fire, took place on tho same day; as to the delivery of a particular account in writing, on the 20th August 1845 ; and in respect to the de- claration on oath, the 27th March 184t), Held, Sufficient, the respective times having been laid under a videlicet; the performance of these acts, whether ia due season or not, being matter uf evidence. Held also. That as W. had no legal in- terest, it was not necessary to statu that he was not related to the notary. IbiJ. By the fifteenth condition annexed to the t PLEADING. 313 policy, it was declared " that no suit or action of any kind against the insurers fur the recovery 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 aflcr the caasc of action accrued," etc. Held, That this was a condition subsequent — the subject of a plea. Held also, That an alleviation in a cour*^ upon a policy con- taining this condition, that the insurers had no mayor, president, etc., upon whom process could be served (introduced to unticipate a probable objection that the action was not brought within the twelve months,) was mere surplusage. Ketchwn V. The Protection Insurance Co., 1 AIL 130. The the preliminary proof required by tunth condition may be waived, nx\ \ being a question of fact, the mode :7 waiver need not be stated. The fifteenth condi- tion being the subject of a plea, an aver- ment in the declaration that the insurers had waived it, would not be traversable ; therefore it might be passed by without notice. Held also, That it could not be waived — that lapse of time extinguished the liability of the insurers, which could not be revived by waiver; but Semble, That they might dispense with the con- dition by deed, and if a deed could avail as a dispensation it should be replied to a pica of the condition. Held also, That the fifteenth condition was valid in law, and operated as an effectual bar every- where ; therefore a plea of the fifteenth condition to a count containing an averment of waiver of this condition is properly 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 ap- peared, and there was no means of com- pelling ' their appearance, although the the plaintiff was willing to prosecute within the twelve months, is bad, as it it neither confesses nor avoids anything material, for the plaintiff might have sued out process within the twelvemonths, or the defendants might have been sued in the country where they are incorpora- ted, and they are not estopped by volun- tarily appearing, from setting up the lapse of time as a defence. Ibid. A plea, embodying the tenth condition, 40 which stated that after the fire, to wit, on the 26th 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, etc., 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. Ketchum v. The Protection Insurance Co., 1 All. 136. A traverse in a plea that the plaintiff was not interested in the goods insured to the whole amount of their value, is too large ; for if he was interested in any part, he is entitled to recover />«> tanto. 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 ac- count of loss according to the tenth con- dition, and secondly, sets up fraud, is unobjectionable. The refiisal 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 state- ment, 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. Ibid. 38 — Claim for total loas — Right to recover for partial loss — Deviation — Right to re- cover where loss payable to plaintiff. See Insurance 41. 39 — The assignee of a policy of insurance and of the property insured, does not by such assignment, acquire any right of action against the insurer on the original contract, though the ai'!'*i|;ument is mt\de with his consent, and a> :^'Cordanoe with one of the conditions of the policy ; but a new promise by the insurer, supported by a valid consideration, to give the as- signee the benefit of the insurance, will support an action. The declaration in an action by the assignee of a policy of in- surance made by the defendant with A., *" il 314 PLEADING. after setting; out the poHcj, the payment of the preniiuiu by A , and hin assignment to the plaintiff with the deibndant'a con- sent according to one of the conditions 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 plaintiff's part to bo performed in par- soanco of the consent to assign, and in consideration of the assignment of the property from A. to the plaintiff, and the release thereby of all liability of the de- fendant to A., and of the assignment of the policy with the defendant's consent, and in consideration of the payment of the premium so received as aforesaid, the defendant promised the plaintiff to be the insurer to him, etc. Held, That there was not a sufficient consideration shewn to support the defendant's pro- mise. Demill V. The Hartford Iitiur- ance Coiajyatiy, 4 All. 341. The receipt of a renewal premium on the policy 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 niake any other insurance on the property, and should not, with all reasonable diligence, give notice thereof to the insurer, and have the same endorsed on the policy or otherwise acknowledged in writing, the policy should ocase 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 th6 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 sub- sequent insurance, the declaration averred that notice thereof was forthitith given to the insuret (the defendant), and it thereby became his duty to indorse such subsequent insurance on the policy, or to acknowledge the same in writing, but that he neglected and refused so to do. Held, on demurrer. That the declaration was sufficient, and that a tender of the policy to the insurer for indorsement, ur a request to him to indorse or acknow- ledge it in writing, was not necessary. Demill T. The Hartford Iimuruiice Com- pany, 4 All. 341. Qufere, Whether the defendant could bo charged with a breach of duty in not in- dorsing the subsequent insurance, unless the policy was tendered to him fur that purpose; but Held, That the averment that it was the defendant's duty to in- dorse it, might be treated as surplusage. Ibid. 40— <7onsideration moving from plain- tiffi A declaration in assuui] jon an agreement or note, whereby ..lU defend- ant '• in considenition of value received from the estate of J. & H. K. prontise to pay the plaintiffs, trustees of the Siiid estate, d^.id in cash or sole leather on or before 1st May, 1843," is not bad on general demurrer, on the ground that the consid- eration did not move from the plaintiff, or that no demand of payment was averred specially. Bumham v. Watt», "1 Kerr 377. 41— Averment of conaideration— Proof. In an action on a written menioranduui, whereby " A. for value received promises to pay B. $750 in current bank bills," it is not sufficient to allege the consideration in the general terms of the memorandum, but the plaintiff must s' n what the value consisted as the 'ration fur the promise. Whitney v. - rks, 1 Kerr 137. 42 — It is necessary also not only to allege the actual consideration, but the pruuf must correspond with the allegation In this case the plaintiff alleged that the consideration consisted of certain stand- ing trees, good*, warr.s, and merchandize, and stumpage ; the evidence shewed the consideration to consist of stumpage alone. A verdict having been taken for the plain- tiff, subject to a motion for a non-suit, tho 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 t. Markt, 1 Kerr 179. 48— Debt on bond— Award— Breach. In an action on a bond conditioned for the performance of an award, the particu- lar breach relied on must be stated in the declaration : it is not sufficient to sttitu gencrally that tho defendant refused to comply with tho award, and would not PLEADING. S15 perform the acts on his part to be per- formed accordiug to the directions of the award. Burgoifne v. Burgoyne, C. Alt. 120. 44— Assvunpsit on note— Partnership. In an action by the payees against the maker of a promissory note payable to A., B., G. and D., the declaration alleged that the defendant promised to pay the plaintiifit, by the name, stylo and firm of A., H., C. and D. Held, That it was not necessary to prove that tho plaintiffs were partners, and that the words " name, style and firm " might have been struck out of tho declaration. Allen v. Jl/ic- NimghUm, 4 All. 234. 45 — Averment of rate of exchange and pliico. See Bills and Notes I. 4. 46-Con8ideration— Averment —Axdet by. rerdiot. The uediiration stated, that whereas tho pluintiiT had the custody of certain timber uf the defendant, and the defendant had bargained with one J. 31. to soil and de- liver to him a certain quantity uf timber, an 1 thereupon in consideration that the plaintiff at the request of defendant would agree to deliver to J. M. 573 tons of timber, averaging in size 13} inches, the defendant promised the plaintiff that his timber iu 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 iusuflicient size, he (the defendant) would pay tho plain- tiff such loss as he might sustain by rea- son of the timber being of insufficient size, to enable the plaintiff thereof to comply with his agreement with J. M. Tho declaration 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 siae of 13} inches, and although the defendant's timber in the plaintiff's custody did not average 13} inches, but only 13} inches, and the plaintiff had by reason thereof sustained great loss, and was forced and obliged to pay J. M. a large sum, viz. : the dif- ference in value between timber of 13} and timber of 13} inches average; yet the defendant, although requested, had not paid the plaintiff the amount of such loss, etc. Held, on motion in arrest of judgment, That there was a sufficient cuiisideration alleged, and that it was not necessary for the plaintiff to aver that he had performed tho contract made by de- fendant with J. M. by delivering timber of the average size specified, the agree- ment by plaintiff to deliver and not the delivery itself forming tho oonsideration for the defendant's promise to indemnify. CuHttard v. Plummer, 2 Kerr 418. Held also, That after verdict neither the mode of alleging the consideration, nor the want of averment of notice to the defendant of J. M.'s demand on the plain- tiff, could bo objected to. IHiil. 47 — Insurance policy — Meaning of words by usage of trade. Hold, That such usage and construction should bo averred in the declaration. See Insurance 21. 48— Libel— Prefiitory averments— When necessary. In a declaration for a libel, prefatory averments arc not necessary, where tho charge is apparent on the face of the paper without reference to extrinsic facts. The question after verdict is whether enough appciirs on tho record to sastain the action. Connick v. Wilson, 2 Kerr 617. 49— Assignee of term. A party signing as assignee of a term on a covonant contained in the lease and alleging and making profert of an assign- ment by deed is bound to prove it, and if several assignments are alleged, a traverse that the plaintiff became entitled modo et forma, puts the whole of thcui in issue. Anshy v. Peters, 1 All. 339. 60— Case-Nuisanoe— Erecting steam mill— Surplusage. In an action on the case for a nuisance in erecting a steam mill on land adjacent to the plaintiff's dwelling house, the evi- dence of persons living in other adjoin- ing premises as to the injurious effect of the steam mill upon thorn, is admissi- ble in order to shew by necessary infer- ence the damage done to the plaintiff by the erection. No other damage need be shewn than the abridgement of the plain- tiff's enjoyment in the occupation of his premises. The judgment will not be arrested because in one or more of the counts annoyance to the plaintiff's tenants as well as to himself and family is alleged. It will be deemed surplusage. Barlow v. Ki linear, 2 Kerr 94. 61— Perjury— Averments. The introductory averment in a declara- tion in an action for slander, containing WH 816 PLEADING. twenty-three connts, stntcd that before the committing of the grievances men- tioned in certain counts (including the eighteenth) the plaintiff had been duly awom to a certain affidavit made in the Snpreme Court before a commissioner duly aathoriied, concerning certain pro- ceeding* in s suit pending in soeh Court, and that he had been duly sworn to the truth of the matter in such affidavit con- tained, and that the defendant intending it to be believed that the plaintiff had been and was guilty of perjury, etc., spoke and pablished, etc. The eighteenth count stated that in a certain discourse which the defendant had concerning the plaintiff, and of and concerning said affi- davit so made by the plaintiff ns afore- said, the defondant further contriving and intending as aforesaid, in the pres- ence and hearing, etc., spoke and publish- ed of and concerning the plaintiff, and of and conocming the said affidavit, etc., the false, scandalous and molicious words following, " Mr. M. (the plaintiff) had sworn falsely," whereby the defrL.Jant meant to insinuate that the plaintiff had wilfully s« orn falsely in the said affidavit, and had thereby been guilty of wilful and corrupt perjury. Held, That the count was not detective, and that it contained proper averments of the facts necessary to shew that purjury was imputed to the plaintiff. Held also, That to constitute perjury at common law it was not neces- sary to aver that the affidavit had been used, as the crime did not depend on the subsequent use of the affidavit, but was complete on the false swearing. Milner V. Gilbert, 1 AU. 61. 62— Treepais -BzpulsiOD. Expulsion from part of the close is suffi- cient to sustain the count for expulsion. Gemer v. Caimt, 2 All, 595. 68— Bzoeaaive diatrei*— Neoessary allegation. The declaration in nn action for excessive distress, alleged that the plaintiff hold land as tenant to defendant at a certain rent; that the defendant wrongfully seized goods on the premises as n distress for arrears of rent alleged to be duo, viz. : 1311, and sold the same for the said alleged arrears, whereas a small part only of the ■aid alleged rent, viz. : 97'J, was in arrcar. There was no allegation '»hat more goods were taken or sold thau were necessary to produce the rent actually duo. 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. Pre$ton v. Sitnonflt, 1 JJan 44. 64— Harried woman— Living apart— Allegation. 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 contracted with her while she was such married woman and compelled to support herself, sufficiently shows the plaintiff's right to sue in her own name under the Act. Abelv. Light, 1 Han. 97. 66— Special aarampBit— Oonsideration for promise — Allegation — Am> biguity. The first count of a declaration stated that on the Ist November 1865, in consider tion of the assignment of license No. 84, made to defendant by plaintiff, at defend- ant's request, defendant undertook and promised that F. should deliver to plain- tiff whatever quantity, say, not to exceed 165,00U feet of logs by the 10th July then next. Averment, that although the time for the delivery of the h'^ had elapsed, and the plaintiff was ready and willing to receive them, yet F. did not deliver thoui, whereby, etc. The fourth count stated that on the day and year aforesaid, in consideration of the assignment by the plaintiff to the dofcud- ant of a certain license, then and there agreed upon between them, dcfendcnt undertook and promised that F. ohould deliver plaintiff, whatever quantity of logs said F. had before then agreed to deliver plaintiff in the year 18G6, not to exceed 165,000 feet, bv the 10th July then next. Avcrniont, tnat F. had aj^rccd to deliver plaintiff 135,000 feet in J8G6. Breach, that F. did not deliver the logs, Held, 1st. That a sufficient considoratioa for defendant's promise was alleged but that the promise, as stated in the flrn count, was uncertain and unintelligible; 2nd. That the words, " on the day and year aforesaid," iu the fourth count, did not necessarily refer to the 10th July 1866 (the last dny mentioned in the pri" coding count), but might refer to the Ut November 1866; and being onlv an aui- blguity, the objection ooulanot bo (akco PLEADING. 317 on general demurrer. DesBrUuy v. Jtfc- Leod, 1 Hun. 122 66— Case— BefuBing to register under Medical Act. By the Act 22 Vic. c. 18, 8. 11, every person in the Province posaeHsed of a uicdiciil degree or diploma to practice medicine or surgery, from any college in Great Britsiin, Ireland, Canada, France, or the United States, authorized to grant the same, shall on payment, etc., be en- titled to be registered under the Act, and by a. 12, no qualification shall be entered on the register, unless the Uegistrar is satisfied by the proper evidence, that the 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 ho acted maliciously ; and that an averment in the declaration that he wrongfully and injuri- ously refused to register the plaiutiff, was insufficient. 2nd. That the mere produc- tion of a diploma to the Uegistrar, was not sufficient evidence of the authority of the college to grant it: the declaration should have averred that proper evidence of the plaintiff's title to registry was tendered to the defendant. Peterson v. Ilardimjy 4 All. 583. 67— Identity in name— Proof. The plaintiff described himself in the de- claration "J. Kcrriken, otherwise called J. Oarrigan," and in support of the ac- tion produced an acknowledgment signed by the defendant, of a balance due from him to J. Kerriken. Held, That it was necessary fur the plaintiff to identify him- self with the party mentioned in the ac- knowledgment, and without proof that the J. Kerriken there mentioned was also called J . Oarrigan, the action could not be maintained. Kerriken v. Cope- land, 3 Kerr 667. 68— Judgment— ITame— Averment. In an action on a judgment signod against J. H. W. by the name of J. W. \V., it is sufficient tu aver that the dotbndant and J. W. W. are the same person. Young v. Woodcock, 3 Kerr 554. 60— Deflunation. In an action of defamation for calling a woman a whore, it is sufficient tu aver in the declaration that the defendant in- tended tu impute unchastity. Martindale and Wife v. Murphy and Wife, Jier. 85. eo-AnumpBit-Attorne^-Negligonoe. Declaration stated that in consideration that the plaintiff at the request of the defendant had retained him as an attor- ney for certain fees, to prosecate an action at the suit of the plaintiff against G. for money owing tu him ftom 0., the defendant promised the plaintiff to pro- secute the action in a skilful and diligent wanner, and accepted the retainer, and afterwards as the plaintifi's attorney, commenced an action against C. at the suit of the plaiutiff for the recovery of the money, and it thereby became the duty of the defendant faithfully and dili- gently to act as the attorney for tho 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 neg- ligent a manner that the plaintiff was non-suited, and was not only prevented from recovering tho money from C, 'but was obliged to pay £17 for the costs of the suit etc. Held, 'fhat this was a declaration in amtumptit and not in case, and that it disclosed a sufficient cause of action. Carrigan v. Andrews, 1 All. 485. 61— Award— Action on— Concurrent Acts. An award directed that the defendant should pay the plaintiff a sum of money on a certain day, and that on such pay- ment being made the defendant should bo entitled to receive, and the plaintiff should deliver him two parcels of sleep- ers then lying at L. Held, That they were not concurrent acts, and in an ac- tion on the award for the money, it was not necessaray for tho plaintiff to aver a readiness to deliver the sleepers. Hassell V. Wilson, 1 All. G18. 62— ITeKligence in repairing street- Allegation. The Corporation of St. John being bound by law to lay out, alter and repair the streets in the city ; it is sufficient in an action against them for negligence in re- pairing a street, to allege that it was tho duty of the defendants in so 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 wnich the Court was bound to take notice. Hender- son V. The Mayor etc. of St, John, Mich. T. 1872. 63— Allegation of special demand— Ifeoesaity of— IteadinesB to pay. Where tho consideration of an agreement :>:'M ■■' I il 318 PLEADING. is an antecedent debt, a demand is not a condition precedent to the right of re- covery ; but readiness to pay according to the agreement is matter of defence. The declaration alleged, that on the 30th September, 1824, defendant being in- debted to plaintiff in £30, as well for money lent and advanced to defendant, as for money bad and received, etc., agreed with the plaintiff to pay him the said sum of money sixteen mouths after date, in hay and grain, to be delivered at W. at the current price ; and tiiut the plaintiff, in consideration thereof, agreed to accept puyuicnt of the said suui of money at the time and in manner afore- said ; that plaintiff had always been ready and willing to accept and receive the hay and grain ut W. in payment of the debt, according to the agreement, but that defendant had not paid the money in buy and grain at W. though otiteu requested etc. Held, on demurrer, That the do olaration was sufficient, and that it was not necessary to allege a special demand of the hay and grain at W., but if de- fendant hud the buy and grain ready to deliver according to his agreement, he should have pleaded it. Shut v. Kermott, Mich. T. 1827. 64— Consideration— Suffioienoy of— Ouoranteo. The declaration stated, that G. was in- debted to plaintiff in £50, and that defendant, in consideration thereof, and that plaintiff would give time t an tiction of false imprisonment the defendant pleaded in justification a judg- ment and execution — replication nnl titi record. Qumre, Whether the (/ourt could judicially notice an indorsement on the judgment roll of a ruh settiuf^ aside the judgment. Semhle, That the replication was good ; but that the nmro proper course was for the plaintiff to apply to the Court to set aside the plea; or that he might reply the order of the Court for setting aside the judgment, on which issue in pais might be taken. Wifson V. Andrews, 1 All. 715. After a judgment is sot aside it cannot afford a justification to tho attorney for anything done under it. Ibid. 17— Trespass— License covering part. In trespass for cutting trees, to which tho defendant pleads a license to commit the injuries complained of, and the plaintiff replies de injuria, evidence of a license which covers some but not all the tres- passes proved, will not sustiiin tho justi- fication. It is not necessary to new assign tho excess, as tho replication tra- verses tho justification to the extent pleaded. Baxter v. Foshay, 1 All. 413. 18— Trespass— Plea not traversing or confessing. To a declaration in trespass alleging a seisin in fee in tho plaintiff, the defendant pleaded that tho Queen being seized iu fee of all mines etc. granted a license to tho defendant, to make use of, work and dispose of all such mines within the lor.ut in quo for twenty-five years, by virtue of which ho entered for tho purpose of working a coal mine : color was then given to the plaintiff by a supposed charter of demise to him for life from the Queen, before the license to the defendant, and the plea stated an entry on the plain- tiff's possession for the purpose of work- ing the coal mine under the license. Held, That tho plea wad bud, us it neither traversed nor confessed the plain- tiff's seisin ; that if tho plaintiff's seisin iu the land was admitted, tho plea should havo shewn how tho seisin in the uiiuca was separated from the seisin in the liind; und that it should also have shewn how tho Queen, or the defendant, acquired :i right of entry on the land. Hold alno, That it was not a case for color. McMahun v. Brrton, 1 All. 706. 19 -Bntr^ on land to retake timber. A pleu justifying an entry upon plainlilT'it land to retake timber carried there by a sudden rise of water, should shew tliiit tho defendants were not in fault, by hiiv- PLEADING. 321 ing used their best endeaTora to prevent the timber coming upon plaintiff's land. Quuere, Whether an entry and injury to soil and herbage could be juatified even under such oircumatances. Read v. Smith et al., Ber. 173^ 20— Falsd ImpriBonment— XTaTue. In an action for false imprisonnient in arresting the plaintiff (R. 0.) under a capias issued by a Justice of tho Peace against W. G., the plea stated that the defendant dultf matie oath before the Justice that the plaintiff, by the name of W. C, was indebted to the defendant in the sum of £5, that the plaintiff was known by the name of W. C, and was the real person against whom the capais issued by the name of W. G. Hold bad — 1st Because it did not appear that there was any affidavit in writing to war- rant the capais; 2nd. That it was not sufficiently shewn that the plaintiff was commonly known by the name of W. G. as well as 11. C. Clark V. Lawrence^ 3 Kerr 152. 21— Limitations— Place— ATerment. Assumpsit. Plea, actio iwn accrevit in- fra sex annos ; replication, that the plain- tiff at the time when, etc., was and has ever since continued at Z., in the State of Ohio, one of the United States of America, and out of this Province. Held, on special demurrer, That the replication ueed not allege the place to be beyond the soas, nor that the plaintiff returned to the Province before bringing his action, to bring him within the exception of the Provincial Statute of Limitations. Hamp- ton v. Abbot, 1 Kerr 490. 2-N'egligenoe— Attorney— Bail Bond. In an action against an attorney for neg- ligently conducting an action brought by the plaintiff as assignee of a bail bond, in cousequenoe of which the action was dis- continued and the defendants therein discharged out of custody ; tho defendant ploadod that the principal in tho original notion did appear according to tho con- dition' of the bond. Held, That this was no defence to tho action. Crawley V. Wihon, 1 All. 704. !I3-Nul Tiel Record. To u plea of appearance in an action in the Court of Common Pleas in September term 12 Vic, tho plaintiff replied m// tiel reriml, and on the trial tho rucogniuinoo of buil appeared to be of that term, but not to huyo been filed until a year ailber- 41 . wards, and after the term in which the plea was pleaded. Held, That the plea was not proved. Crawley v. Wilson, 1 -<1«. 718. „.rfi,.i„,i=( :• .!<...-■ 34— General iaiue-^Notiie 6'f lender. It is irregular to plead the general issue to the whole declaration, and give notice, under the Act 13 Vic. c. 32, of a tender as to part of the demand ; and where, on such pleadings, a Srerdict was found for the defendant, it was set aside and entered for the plaintiff for nominal damages. Conlan v. Campbdi,3 All. 348. 26— Assignee of lessee against lessor- Covenants. In covenant, by the assigtiee of lessee against lessor on a lease of land from 1st February 1830, for eleven years, with covenants that at the expiration of the lease the lessee and dofbndant should, each appoint an appraiser to appraise the value of the improvements, etc., and that the defbudant 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 the expira- tion of the term the plaintiff (assignee) appointed an appraiser, notified the de- fendantj and requested him to choose one; but he did not, nor pay for this improvements, nor grant a further lease. Second plea, that the defendant was always 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 quar- ter's rent was in arrear, and the defendant demanded it on a day in the following Siuarter, and took possession as of his ormer estate. Fiflh plea, that the de- fendant was always ready and willing to continue the lease for a further tune, under the like covenants contained in the original one ; that tho 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 G. ; that the plaintiff did not, before such assignment to B. and G., nominate an appraiser, and give notice thereof, etc., nor request the defendant to choose one, nor did ho after the assign- ment request B. and G. to choose an ap- praiser, etc. On general demurrer to these pleas — Held, 'Ihut the second plea was bad, tho averment of readiness and willinguoss therein not being auffioieat 4 PLEADING. for the performance of the defendant's covenant, and that he was bound to have made his option, and declared it to the plaintiff. Held also, That the fourth plea was defective, as it shewed no suffi- cient demand to work a forfeiture. Held also, That the fifth plea was bad for the same reason as the second. AnsUy v. PeUn, 3 Kerr 543. as ft— Defenoe agaiiurt Bent. See Former Recovery. See Action at Law VIII. 26— Nuiaanoe— Statute of Limitations. In an action on the case for a nuisance in overflowing the plaintiff's land by a dam, which was erected by the defendant more than six years before bringing the action. Held, That the effect of a plea of the Statute of'^ Limitations was not to bar the action, bat only to limit the re- ' covery of damages to the last six years. Cannon v. McLaggan, 2 Kerr 446. 37— Beplevin— Non Oepit— Evidence under. Whatever might formerly have been pleaded to an avowry, may, since the RevLsed Statutes, cap. 126, be given in evidence at the trial in answer to the defence under the plea of non cepit. Myert v. Smith, 4 All 207. The defendant in replevin is entitled to damages on a verdict in his favov on the Slea of non cepit, if he gives such evi- ence as would have supported an avowry under the former law. /6t(2. S8— BeplOTin— Plea— Beplioation. In replevin, the defendant pleaded, (2nd) that before the alleged taking, he was master of a ship, and that the goods had been shipped on board at London by D., on which occasion defendant, as master, signed bills of lading to deliver the goods at St. John to the order of D., and that no bill of lading indorsed to the plaintiff bj D. was produced by plaintiff to defend- ant, wherefore he refVised to deliver the goods to. plaintiff. Replication, That D. had sent the bill of lading to the plaintiff to enable him to receive the goods, and the same was then in plaintiff's posses- sion, with full power from D. to receive the goods from defendant, but D. had not indorsed the bill of lading to the plaintiff; thrt he requested defendant to deliver the goods ; that defendant repre- sented that R. was the owner of the ship, and that ho (defendant) would do what- ever R. agreed to ; that the plaintiff ap- plied to R. for the goods, who informed Elaintiff that C. was the agent of D., that is indorsement of the bill of lading would be satisfactory; that the plaintiff then f)rocttred G.'s indorsement of the bill of ading as the agent of D., and produced the bill of lading so indorsed to the de- fendant, who refused to deliver the goods. Rejoinder, That the plaintiff never pro- duced to defendant any {Hroper authority from D. to receive the goods ; and that before the bill of lading indorsed by C. was produced to defendant, R. had for- bidden the defendant to deliver the goods to pbintiff, under the bill of lading so indorsed. Held, on demurrer, per Alien and Fisher, J. J. (Weldon, J., distenti- ente), That the plea admitting the pro- perty in the goods to be in the plaintiff as alleged in the declaration, was no answer to the action, because the plaintiff was not bound by the bill of lading, and was not deprived of his right to the pos- session of the goods as owner, by the undertaking of the defendant to deliver them to the order of D. ; and though the defendant having received the goods from D. could not voluntarily set up a jus tertii, that was no answer to a claim by a third person, who was the real owner. Held, per Weldon, J., That the plea was good ; and that the plaintiff should have shewn by replication his right to the goods, and that D. had no title to them, and was wrongfully in possession at the time he shipped them. Held also, That the replication was bad, as the agroemeot of the defendant to abide by what K. did, was without consideration, and not bind- ing ; and it did not allege that 0. was the agont of D. That the rejoinder was bad, in stating that the plaintiff produced no " proper authority " from D. to receive the goods, which was a question of law; also, Deoause it both traversed, and coo- fessed and avoided the allegations in the replication. Fourth plea. Alleging the shipment of the goods at London by D., to DC carried to St. John, according to LachJan v. Wilton, 2 Kerr 868. 86 — Non Damnifioatns — When good. See Bond I. See Supra 1. 18. 86— Action againat ezcknitoir— Inirol- yenoy. Where in assumpsit by A. against B., as executor of C, B. pleaded that the estate of C. was insolvent, and only sufficient to pay Is. 6d. in the pound, and that A.'s rateable proportion thereof wits to much, which Was acknowledged on the plea to be still due him; on demurrer — Held, That the rilea containing no allegation that the defendant bad taken phtceiedings under the Act to have the insolvency ascertained and the assets duly distiSbuted was bad. It is onlv und«r the Act of Assembly 26 Geo. 8, o. \l^ tJiat such 324 I'LEADING. defence can be made available in a Court of law. Smith v. £agan, 1 Kerr 43. 87— Bill of Exohange gflven for debt. Declaration in assumpsit on the couimon counts ; plea, admitting the sum of £526 12s. 4d. to have been due to the plaintiff, avers that for that sum the defendant, at Saint Andrews in this Province, drew his bill of exchange on one C. M., pay- able to the pbintiff, which was delivered to plaintiff, and by him received and accepted for and on account of the sum so due; replication, that after the bill of exchange was so received, and before it became due and payable, the plaintiff sent the same by a vessel, of which the said CM. was master, addressed to the plaintiff's agent in the West Indies, for the purpose of being presented on the said vessel's arrival, but that the vessel foundered at sea on her passage out, whereby the said 0. M., the drawee, perished, and the bill of exchange was destroyed and lost, and the plaintiff was unable to presort the same, and the same remains wholly unpaid. Special demur- rer, assigning for causes that the plain- tiff's remedy for the original debt was lost by his taking the bill of exchange, and was not restored by the destruction and consequent non-payment thereof, as set out in the replication ; that the facts stated in the replication wore immaterial; that after the receipt of the bill the lia- bility 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 the causes assigned, but afforded a suffi cient answer to the plea. Bot/d v. Ate Lauchlan, 1 Kerr 210. 38— Sheriff— Escape— Justification. To an action on the case against a Sheriff for an escape, the defendant justified under an order of two Justices, made pursuant to the Insolvent Confined Debt- ors' Act, directing him to discharge the prisoner in consequence of failure on the part of the plaintiff 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 payment of a weekly sup- port, and that the plaintiff had failed in payment thereof; the mere recital of these steps in the order of discharge not being sufficient. Power v. Johmon, 1 Kerr 492. 30— Trespass— Cattle. In trespass by cattle, if the defendant justify the entry of the cattle through defect of fences, it must be speciully pleaded. GrUwald v. Jfallett, Mich. T. 1834. 40— Breaking and entering close- Taking property — JuBtiflca- tion— General issue. In trespass, the first count charged a breaking and entering plaintiff's close. and taking and carrying away 50,000 deals and a horse, and converting and disposing of the same to defendant's use. The defendant pleaded, — as to breaking and entering the close, and seizing the goods in the first count mentioned, and carrying away and disposing of the said horse — actio non, because one P. had recovered a judgment in a Justice's Court of the County of K. against the plaintiff for £4 18s. 3d., on which exe- cution was issued, and delivered to D. a constable of said county, to be exeouted ; that D. as such constable, and defendant as his servant, and by his command, seized and took the goods and chattels in the first count mentioned for the cause aforesaid, and entered the plaintiff's close for that purpose; and that after publicly advertising the goods and chat- tels for five days, the constable sold the hdrse to satisfy the execution : and, as to all the supposed trespassers in the de- claration mentioned, except those stated in the introductory part of the plea, — not guilty. Held, That this pica an- swered the whole declaration ; that de- fendant, acting as the servant of the constable, was not bound to justify any but his own acta, or to account for what might have been done by the constable in the disposal of any of the goods except the horse; to which other goods, the general issue applied. Atkimon v De»- mond, Trin. T. 1863. 41— Former recovery— Verdict— Judg- ment not signed. A verdict recovered without judgment signed cannot be pleaded in bar to an action between the same parties. Gil- bert V. Graham, East. T. 1873. 42— Abatement— General issue— Also plea in abatement— Latter ploa not available. In an action upon an alleged warranty PLEADING. 825 of ownership upon the exchange of wag- gons, the defendant pleaded the general issue,, and also in abatement the pendency of another suit for the same cause of action. Held, That he could not avail himself of the latter plea. Mercer t. Cosman, 2 Han. 240. 43 — Non-joinder of partner can only be taken advantage of by plea in abatement.. See Bills and Notes VI. 10. 44— False plea—Set aside as friTolous. A plea to an action on a promissory note for £266, alleging " that the defendant had paid the said sum of £266 to the plaintiff, which he had accepted in full discharge, and also that the defendant had given to the plaintiff a new promis- sory note for the said sum, payable in three months, in full satisfaction and discharge," was set aside by the Court as frivolous, upon motion of the plaintiff, supported by an affidavit that the plea was wholly false, and was pleaded for (he purpose of delay. Gabel v. Harding, 2 Kerr 71. Feigned issue. Seo Practice XII. De Injuria. See De Injuria. Former recovery. See Action at Law. See Former Recovery. Husband and wife. Seo. Filing pleas in abatement. See General Rules 1. III. Notice op Defenoe. 1 — A special plea cannot operate as a notice under the Act 13 Vic. o. 32. Robinson V. I'afmer, 2 All. 223. 2— Proof of the matter alleged in a notice of defence under the Act 13 Vic. c. 32, will not entitle the defendant to a verdict, unlctis it amounts to a legal defence. Whclpky V. Rik}/, 2 All.. 275. 3— A notice given under the Act 13 Vic. 32, may be set aside with costs, if the matter stated is no defence to the action. Dowling v. Trites, 2 All. 620. 4~A notice of defence under the Act 13 Vic. c. 32, which would have been bad ns a, special plea, will be set aside with costs. Wilson v. Street, 2 All. 029. 5 — Notices under the Act 13 Vic. c. 32 should state the grounds of defence with reasonable certainty, and shew in sub- stance, that the matter alleged would have been pleadable in bar. Le Gal v. Duffif, 3 AU. 57. 0— Notice cannot be sdven of matter not pleadable — Dilatory Flea — Sununary Action. In a summary action the defendant pleaded the general issue, and gave notice of defence under the Act 13 Vic. c 32, of the pendency of another action for the same promises. Held, bad, be- cause a dilatory plea cannot be pleaded in a summary action, and a deiendant cannot give notice of a defence which he Ciinnot plead. Thomson v. Keith, Trin. T. 1864. 7— Pleading and Notice. If two pleas are pleaded and a notice of other matters of defence given under the Act 13 Vic. e. 32, the plaintiff is not justified in treating them as a nullity, but should apply to a Judge to set them aside. Oulton V. Palmer, 2 All. 364. 8— Libel— Generality of Notice. A notice of defence in an action of libel stating that the allegations contained in the writing complained of are true; is sufficient under the Act 13 Vio. o. 32, there being no affidavit of the plaintiff that he was tnisled by the generality of the notice. Lang v. Gilbert, 4 All. 359. 0— Evidence under Oeneral Issue— Not confessing and avoiding. A notice of defence under tne Act 13 Vic. e. 32, will not be set aside, because the matter stated might be given in evi- dence under the general issue ; nor be- cause it docs not in terms confess and avoid the cause of action alleged in the declaration. Ladds v. Vernon, East. T. 1873. IV. MlSOELLANEOUS. Declaration — Copy delivered, presumed true transcript. See Practice 1. 5. Plea in abatement and in bur not allowed. See Supra II. 42 General issue to whole, and tender to part — is bad. See Supra II. 24. Trial by record— What put in issue. On a trial by the record, the only thing put in issue by the pleading is the record of the recovery of the judgment described in the declaration ; therefore in scire i: n PLEADING. POSSESSION. facicu iflBignin^ broaches on » bond payable by instalmenta, a Tarianoe be- tween the writ of tcire fnciaa and the declaration in reference to the breaches assigned, and an alleged objection to the form on which execution was prayed. for by the writ, were held not to be included in the issue. Kerr ▼. Kmnear, 3 Kerr 412. Variance. On Nul Tiel Record pleaded to a judg- ment of an Inferior Court a variance between the ca. ta. and the judgment, or inconsistency between the teste and issue thereof cannot be taken advantage of. Spence v. Stewart, Ber. 113, 219. Demand of plea before expiry of twenty days, irregular. See Practice VII. Plea. Admission on one plea does not qualify the issue joined on another distinct plea. See Evidence X. 2. Filinjs Plea— Interlocutory Judgment. It is not necessary that a plea should be filed within twenty four hours after a demand of plea ; therefore where a copy of plea was delivered within that time, and the plea sent to Fredericton on the same day, and filed in the clerk's office on the following day, an interlocutory judgment signed in the afternoon of the day on which the plea was delivered, Kras set aside for irregularity. McCuU lough V. CoUiiit, 1 AU. 499. Bule to plead several matters. Though it is not usual to require a rule to plead several matters to be taken out, if insisted on, it must be done. Wihon V. Atkinton, 3 Kerr 474. Service— Time for pleading. The day of service of rule to plead is to be computed one of the twenty days allowed for pleading. Chwet v. iScouA lar, 2 Kerr 627. De miaimit non curat Ux — .\pplication of Maxim See Supra I. 23. Estoppel by record must be pleaded, other- wise it is waived. Miller v. Weldon^ 2 Han. 188. Want of necessary averments — Ilecovery under common counts. See Bills and Notes VI. Counts of declaration are considered as dis- tinct causes of action. Crawley v. Wil «on, 1 All. 764. Declaration— BntitUng— Cause of action— Time. It is not a ground for arrest of judgment that the declaration is entitled generally of a term, and the cause of action appears to have arinen on a subsequent day in the term. WiUUton v. Pierce, 2 AU. 162. PLENE ADMINISTRAVIT. See Executors and Administrators. POLICE. See Action at Law. (Notice.) POLICY OF GUARANTEE. See Pleading II. 6. POLICY OF INSURANCE. See Insurance. POND-KEEPER. See Lien — Contract 2. Liability— Custom. The defendant, a pond keeper, agreed to receive in charge all the plaintiff's logs, and to provide sufficient warps to secure them, and to deliver them at the plain- tiff's mill, at the rate of one shilling per thousand superficial feet; but if he al- lowed the rafts to be broken up, so they 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 poud keeper liable as an insurer. Held, That the defendant was not liable either under the terms of the contract, or construed bv the usage of the trade, for logs lost by a storm, and without any want of care on his part. Brown v. Cunard, 3 AU, 316. POOR (OVERSEERS OP.) See Overseers of Poor. PORTLAND (TOWN OF.) Civil Court— Town of Portland. The proceeding by review according to 1 Rev. Stat. o. 137, does not apply to a judgment of the Civil Court of the Town of Portland, under the Act 34 Vio. c. 11, s. 99. £x parte Moore, East. T. 1873. Se? Trover 2 POSSESSION. Confinement of Possession, of Actions IV. 2, 4. Ejootmont. See Limitation Crown Grant, POSSESSION. POST OFFICE. Trespass — Sufficient possessioa to maintain action. See Trespass I. 10. Trespass — Qlebe property. See Trespass 1.8. Possession enuring to benefit of heirs. See Trespass II. 28. Prior possession — Wrong doer. See Eject- ment I. 7. Timber — Possession — Seisure by Crown Title against other parties. See Trover 9. Shewing no right to immediate possession. See Ejectment II. 7. Wilderness land. No fixed principle of title by possession of wilderness land to govern all cases. Coatei V. McAidey, 4 All. 521. ' Sc<> Trover 22, same case. * Demand of possession, determining estate. See Tenant at Will 3. Crops. See Trespass II. 23^ 1— Title by prior possession— Disseisin, question for jury. 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 time. . 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 lesssor of the plaintiff had shewn a pn'ma/acte title by prior posses- sion ; and the question of disseisin having been left to the jury, the Court refused to disturb a verdict for the plaintiff. Doe V. Hatheway, 2 All. 69. 2— Orantee of Grown— Nature of pos- session. A grantee from the Crown is deemed to be in possession while the land remains unimproved and unoccupied. Doe v. Chace, 3 AU. 501. The possession of one who enters upon land wrongfully is confined to that part of which he has the actual and exclusive occupation. Ibid. 3 — Plaintiff and defendant occupied adjoin- ing lota for twenty years by a line and fence extending from the front through the cleared land. Semble, That in the absence of any actual possession beyond the clearing, it must be conaidored that the possession from thence to the rear of the lot, was intended to be a continuation of the line in the front. Belj/ea v. Belyea, 3 AU. 588. 4— Possession of widow after death of husband— For whom holding. A. having been in possession of land fourteen years, died leaving a widow and one child, (the lessor of the plaintiff who was married and not living with her father;) the widow remained in posses- sion about eight years, when the defend- ant entered. Held, in the absence of evidence for whoso benefit the widow Man holding. That it could not be presumed that she was holding for the heir, and therefore that her possession could not be added to that of A. to make out title in the lessor of the plaintiff. Doe v. WoodwoTth, 3 All. 577. Qumre, Whether, if the heir had been an infant, the widow might not be presumed to hold as guardian in socage. Ibid, 6— Sullloienoy of possession— Crown grant. Where title is claimed under a Grown grant, which is resisted on the ground that the Crown was out of possession at the time the grant issued, and there is evidence of continuous acts of prior pos- session of the land, adverse to the Grown, for twenty years, such evidence should be left to the jury ; but, in order to pre- vent a Crown grant from taking effect, on that ground, the possession should be defined, actual, and continuous : mere acts of lumbering on Crown land from year to year, without any apparent bounds, are not sufficient. Smith v. Morrow, Mich. T. 1872. Sufficiency of possession — Unregistered deed. See Trespass I. 3. See further — Deed, Ejectment, Limitation of Actions, Trespass. POSTEA. See Amendment III. 5. See Beplevin 4. POSTMASTER. Exemption from highway labor. See Com- missioner of Highways v. Phair, Ber. 371. POST OFFICE. Presumption of letter reaching destination. See Bills and Notes IV. 7. ') 328 PRACTICE. See Sheriff. POUNDAGE. POWER OF ATTORNEY. Extent of anthority. A power "to make and execute any note, bond or bonds, or other instrument or oontract, and to make, execute and ac- knowledge all contracts, orders, deeds, writings, assurances and instruments which may be requisite or proper to effectuate all or any of the premises," will not prima facie authorise the attor- ney to accept and execute leases of real estote containing burtheusome covenants on the part of the lessees. Mayor of St. John V. Lockwood, 2 Kerr 443. Agent's authority. See Principal and Agent 6, 7. Execution of — Affidavit. See Attach- ment 16. Proof of. See Deed I 14. Demand of costs — Power of Attorney. See Attachment. POWERS OF LEGISLATURE. . See Legislative Acts. " British North America Act. PRACTICE. I. Declaration. IL Venue. III. Entry Docket. IV. Process — Scire Facias — Ser- vice. V. Motions and Applications. VL Staying AND setting aside Pro- ceedings, WHEN Granted or Refused. VII. Irregularity. VIII. Rules. IX. Notices. X. Inquiry (writ of). XI. Demurrer. . xn. Feigned Issue. XIII. Arrest of JudoiMent. XIV. Incidental Proceedings. I. Declaration. 1-Piling. A declaration may be filed de bene etse, within thirty days after the last return day of the term at which the writ is returnable. Pearaon v. Kieratead, Mich T. 1865. 2 — Under the rule of East T. 25 Geo. 3, a declaration must be filed in all coses ; 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 filed till the 30th, a demand of plea cannot be made till after the expiration of twenty days from the day of filing. Cassmore v. Turner, V. Ms. 103. 8— EntitUng. Entitling a dcoluration generally of Trin- ity term, where the writ is returnable on the Last day of the term, and the cause 'tried in vacation before the next term, u only an irregularity, which is waived by pleading and going to trial, though strictly, the venire would not be return- able till Michaelmas term. Woodward v. McRae, Mich. T. 1834. 4— Counts— Distinct causes. The several counts of a declaration are considered as distinct causes of action; and if only one count is demurred to, the Court cannot notice any defects in the other counts. Crawley v. Wilson, 1 AU. 704. 6— Copy delivered— Correctness— Pre- sumption. It is presumed that the copy of the decla- ration delivered is a true transcript of the declaration on file, and the defendant's attorney is not bound to make a compari- son. Jirocheauv. DesBrisay, 4 All. 122. n. Venue. 1— Bifl^t to lay v^nue— Change of- BeAoring. The Court will not change the venue from one county to another, where the cause of action accrued partially out of the Province. Dempntn- v Sttwart. 1 Kerr 103. 2 — The veniii' «ise was laid in the county of ^ was joined !i- '\ notice of trial y lor that county, d after- wards com iiiianded' an application on the part of lliu plaintiff to change the venue from the C' iiity of Y. to the county of N., on affidavit that odc material witness to prove the plaintiff's ease resided in the county of R., and PRACTICE. two c*^6n in N., was refused with costs, no other special reason being stated. Commtrciat Bank t. WillUton, 2 Kerr 607. 3 — The venue may be changed upon the ordinary affidavit, in an action on a writ- ten agreement in the nature of a guaran- tee. Rowell V. Emmeraon, 2 All. 455. Where, after a cause of action has arisen, the county is divided, and an action is brought in a different county, the affida- vit to support a motion to change the venue should state in which division of the county the cause of action arose. Jbid. 4 — ^The venue in a cause was laid in Nor- thumberland, but the presiding Judge at the Circuit being connected with the plaintiff, declined to try it. The plaintiff then applied to change the venue to Kent, and obtained an order to do so, with leave reserved to the defendant to apply to bring it back to Northumberland. De- fendant then obtained an order on the common affidavit to restore the venue to Morthumberland. Held, That as this was the first opportunity defendant had of applying to change the venue, the order was properly made. Rankine v. Letsm, 1 Ran. 29. 5 — Though the venue is changed on a false affidavit, the plaintiff cannot bring it back to the county where it was first laid, without the usual undertaking to give material evidence in that county. Nevers V. Travh, East. T. 1834. 6 — Where the venue was changed from A. to B., on the usual affidavit that the cause of action arose wholly in B., when in fact part of it arose in another county, the Court refused to bring the venue back to A., — the plaintiff not being able to give material evidence in that county. But see next case. Ibid. 1 — Where a cause of action arises in more than one county, or out of the jurisdiction of the Court, the plaintiff may lay his venue where he pleases ; and where the venue in such a case had been changed from W. to Y., on the usual affidavit, it was restored on the plaintiff undertaking to give material evidence of some matter arising outside of the county of Y. Ketchum v. New Brunswick Railway Co., im. T. 1873. See Criminal Law 8, 14, 15. 42 III. Entby Dockzt. 1— Allowing filing of writ. Where a writ was returnable in Michael- mas 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 defend- ant 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 terms, to allow the plaintiff to file the writ and entry docket. Wet- more V. Brigga, 4 AU. 590. 2— Entry of cauae— EsccruBO for non- entry. A writ was returnable in Trinity Term 1857, but the cause was not entered. The suit was defended and a verdict given for the plaintiff, which was affirmed in Easter Term 1860, after a motion for a new trial. The Court refused in the fol- lowing term to allow the cause to be en- tered and the judgment signed, though the plaintiff's attorney swore that the omission to enter the cause was an over- sight, and not from any intention of violating the rule of Court. JkAtUejf v. Geddes, 4 All. 591. 3— Insufficient excuse. The Court refused after trial and verdict for the plaintiflls, to allow a cause to be entered, though the defendant's attorney consented; the only excuse alleged for not entering it at the return of the writ, being that the plaintiffs' attorney expect- ed it would have been settled. Doherty v. McGrath, HU. T. 1866. IV. Process — Scire Facias — Service. 1— Ac Etiam— Omission. If a bailable writ states no cause of action in the oc etiam clause it is an irregularity for which the bail bond may be set aside, but the irregularity is waived by the party putting in special bail. Campbell y. Lowden, 1 All. 439. 1 a — Summons issued against a corporation under the Act 12 Vic. c. 39, s. 16, should state cause of action truly. See Corpo- ration 20. 2 — A ca. sa. differing in the amount only from the judgment upon which it is issued, is not void, but only irregular. Spence v. Stewart, Ber. 219. 330 PRACTICE. 8— Sdre Vlaoias— Suit of OrowiL The writ of scire /acia» issued at the suit of the CrowD, is not a prerogative writ ; and therefore the Act 2 Wm. 4, o. 20, abolishing the proceedings by two nihils, and substituting a service of the writ in- stead, applies to suits of the Crown, lieg. T. Hammond, 3 Kerr 181. Setnble, That in a writ of tcire faciat issued upon an inquisition taken upon a bond given to the Board of Ordnance, it is sufficient briefly to recite the proceed- ings on the inquisition, and set out the penalty of the bond, without assigning Drenches; also, that the bond being in effect joint and several, each obligor may bo proceeded against separately. Ihid. 4— Soire Eaoias— To repeal Letters Patent— Averments. A $cire facias at the instance of a private prosecutor, to repeal letters patent, can only issue on the fiat of the Attorney General, who may withhold his assent if no sufficient ground is shewn. A draft of the writ and a statement of the facte on which it is founded should be laid before the Attorney General, and if he is disqualified from acting, the Solicitor General or a Crown lawyer should denide on the application. LeGal v. Dtify, 3 All. 57. Letters patent were granted to B. in 1841, subject to forfeiture if he or his assigns did not commence effectual mining opera- tions within two years; in 18&2, B. as- signed to the plaintiff, who sued out a scire facias to repeal a grant of the same rights made to D. in 1850. Held, That the scire facias should SkVer- that the con- ditions of the first grapi ^ad been per- formed, or that the Crown had dispensed with, or waived such performance. Un!d also, That the defendant might traverse such averments by pleas. Ibid. The Act 13 Vie. o. 32, (if applicable to Mch a case) does not take away the right of pleading. Ibid. 6— Bolre IVuiias— Necessary Statements —Joint Debtors— Pleading. Every writ of scire facias should state the particular circumstances which entitle the party to the remedy sought, so that in the case of an ordinary scire facias under the Statute of Westminster the party would not be entitled to an exe- cution against a joint debtor not brought into Court in the original action or under the Aol of AsMiLbly, 26 Geo. 3, o. 24, and nothing which might have been pleaded to the original action can be pleaded to such ordinary scire facias. Johnston v. Tibbetts, et at, Ber. 356. 0— To revive jude^ent— Joint debtors. A scire facias, in the ordinary form of that writ to revive a judgment against two defendants, where no execution has issued withiL a year and a day, is a suf- ficient scire facias under the Act 26 Geo. 3, c. 24, to obtain execution against the separate property of one of thom, who had not been served with process in the original action. Berton v. Brown, Trin. T. 1831. 7— Execution issued within a year. A scire facias to revive a judgment, is not necessary where an execution has been issued within a year and suspended at the request of the defendant ; although such execution has not been returned and filed. Beits v. Johnson, Trin. T. 1832. 8— Soire Taoias— Judge's order. If the service of a writ of scire facias is not personal, there must be a Judge's order to perfect it. Wetmore v. Levi, mi. 'r. 1861. 9— Soire Facias ad audiendum— Inue —Time oL It is not necessary that a scire facias ad audiendum should issue in the same term in which the writ of error is returnable. Ibid. Altered Writ — Day of alteration considered the issuing of writ. iSee Jiimitation of Actions III. 1. 1 Necessity of Ke-seaiing. See Alteration 2. Judge's order for perfecting service — Set- ting or refusing to set aside. See Prac- tice VI. SiRVioB or PROoxse 10 — When service not personal, the affidavit should state the name of the person served. Sandall v. Oodsoe, 1 All. 441. U— When not personal— Judge's order. Where a writ was not served persoDally, and no Judge's order was obtained to rrfeot the service according to the Act Wm. 4, 0. 14, s. 1, and the defendant denied any knowledge of the suit, a judg- ment and execution were set aside for irregularity, though the defendant's affi- davit of ignorance of the suit was contra- dicted by his admisaion since his arroit. •/antes v. Dupru, 1 AU. 606. «■■■ PRACTICE. 331 12— Agent of attorney. Under the practice or the Court, service cannot be made of papers on the Frcder- icton agent of an attorney, resident in Saint John, unless the agent be specially authorized to receive such service — the rule of Court requiring attorneys, not resident at Fredericton or Saint John, to have agents at either place, may be considered obsolete. Hutch v. ScouUar, 1 Kerr 671. 13-Servioe of rule nisi. Irregularity waived by entering cause on special paper and appearing by counsel. Barlow v. O'Donnell, 1 AIL 433. 14— SummonB— Servioe of— Militia. A summons from a captain of militia in a proceeding to recover a fine for non at- tendance, under Act 6 Geo. 4, o. 18, s. 12, is not well served if left at the dwell- ing house of the party in his absence, and not received by him in time. £x parte Ritchie, 2 Kerr 75. On Foreign Corporation — Affidavit. See Corporation 20. SlttVICK OF NOTICKS — RULES — DkCLAR- ATIONS. 15 — Service on a clerk is insufficient, un- less at the office or dwelling house of the attorney. Moulton v. Dibblee, Ber. 128. See General Rules, 106, 108. Declaration — Ejectment. See Ejectment. 16— Affidavit of serrioe. Where the affidavit stated service of motion to have been on B. W. H. with- out stating that ho was the party's attor- ney. Hold insufficient. Brotony.Bartlettf 3 Kerr 369. 17— E:'.:ou8e for not Mrving. VVhdre a rule niai has not been served some reason must be shewn for the omis- sion to iuduce the court to enlarge it — ' and the application should be made in the term in which it is returnable. Donoijhue y. Todd, 1 All. 698. 18-Bill against attorney. In general the service ot copy of bill on an attorney should bo personal ; service on a clerk at his office, without his au- thority to receive it, and refUsal to accept Borvioo, the attorney being absent fVom oouDty is not good. Sayre v. OUbert, 2 Kerr 228. Aooo^tuDoe by authority — Delay in apnli- cation to set asi^o proceedings. See Infra VI. 28, 10— 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. Jarvis v. Peck, 3 Kerr 607. Seating aside proceedings for defect or irregularity in service See Infra VI. Motions and Appuoations. 1— Entry on motion paper— Obtaining oosts. Where a notice of motion has been given pursuant to the rule of Hil. T. 6 Wm. 4, and the party giving it does not enter the case or the motion paper; the opposite party, in order to obtain the costs of pre- paring to resist the motion, must apply to the Court Tj. leave to enter the cause, on the second -lay of the term for which the notice was given. Seeljfey. Williams, 1 AU. 442. 2 — Where a cause has not been entered on the 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 motion paper is finished. Jonet y. Snodj/rans, 1 All. 603. 3— Notice of appeal— No entry— Oosts. Where notice of appeal from the judg- ment of a Judge in Equity is given, and t>uin in the Sheriff's office four days. FulUm v. Andrewt, 2 All. 359. After failure of such an application, a motion to withdraw the plea and set aside .c execution for the same irrcgu- larit 48 refused. Ibid. 25 — In —I application to discharge the bail in a 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 AH. 360. 26 — Quaere, Whether it is too late for bail to object to the sufficiency of an affidavit, after the time for putting in bail has ex- pired, if they did not see it before that time. Simonda v. Simondt, 2 All. 468. 27— Equitable jurisdiotion— To set aside receipt. The Court will not entertr*n an applica- tion to its equitable jurisdiction, by an ossignee 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. Oots v. Mestinntt, 3 K>.rr 225. 28— Time— Servioe 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. Jarvis v. Peck, 3 Kerr 507. Leave to withdraw plea — Discontinuing re- plevin suit. See Rcf>levin. 20— Attachment for >o3t8 in Equity- Application bv Bureties. Where action is Brought in Supremo Court on a limit bond given by a prisoner in custody on nn attauhiiittnt for coHts in Equity, iinplication for relief by the sure- ties must be mudu to the Supreme Court. Bartlet* v. Gla» 32 — Where forocess has come to the de- fendant'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. Graham, HU. T. 1860. 38— Jui^ment and execution. Plaintiff and defendant referred certain disputes to arbitration, and signed mutual promissory notes for £20, written on the same paper, with a condition underwrit- ten, that if the award was performed the notes should be void ; an award was made in favor of the plaintiff for £1 9s. Od., which the defendant refused to pay; whereupon the plaintiff tore off the lower part of the paper, containing his note in favor of the defendant and the condition, and brought an action against the de- fendant ou the note, and signed judgment by default, and issued execution for the whole amount of the note and costs. After the action was brought, the de- fendant had offered to pay the amount ■ of the award and the costs of the suit on the note. The Court set aside the judg- ment and execution with costs. McLoon, V. Lowell, O. Ma. 1827. 84— Information— Judgment. Judgment was arrested on an information where the offence was not sufficiently alleged. Attorney General v. 260 barrels of Fi*h, Jier. ilQ. 8S— Execution upon judgment— Trial by proviso. An action of trespass qu. cl. /r. was insti- tuted in the name of W. by persons to whom W. had agreed to sell the land. W. did not appear to have expressly authorised the action, but he had re- ceived the purchase money, although he had not executed a conveyance, and had delivered the title deeds of the land to the attorney of the vendees, who was also the plaintiff's attorney on the record, before the commencement of the action. The cause had been twice taken down to trial by the plaintiff's attorney, but re- mained untried, when at a third assizes the defendant gave notice of trial by pro- viso, and the plaintiff not appearing when the cause was called on was non-suited, and the defendant had sinoo taxed his costs and signed judgment. The plaintiff had seen this bill of costs, and promised 43 it should be paid. Under these circom* stances the Court refused to set aside an execution and levy made thereon on W. for the costs. Wetmore V. Reed, 2 Kerr 430. L. and G. appeared as attorneys of the de- fendant on the reeord ; the notice of trial ^ proviso had been by L. alone. Held, That the plaintiff was too late to take advantage of the irregularity, if such, ailter the taxation of costs, of which due notice had been given, and judgment had been signed. Ibid, 86— Nominal plaintifT- Action. Where application was made by the de- fendant to set aside proceedings because the action was brought in the name of the plaintiff for the benefit of a third per- son, without the plaintiff's authority. The Court refused to interfere without an affidavit of the nominal plaintiff. Glencroit v. Work, Mich, T. 1864. 37— Judgment of non-suit— Bei>levin. A judgment of non-suit in replevin inad- vertently given was set a8ide,notwithstand- ing the omission of plaintiff's counsel to take the objection on motion. Mc Geehan, V. Ball, 3 All. 607. 38— Capias— Debt instead of trespass. The proceedings in a cause will not be sot aside for irregularity because the capias ad remondendum was to answer the plaintiff in a plea of debt instead of trespass. Campbell v. Mouop, C. Mt. 164. 88— Second action. Proceedings will be stayed until costs of prior action paid, where conduct negli- gent or vexatious. See Second Action. 40— Puis darrein continuance— Be* lease. Where s new trial has been granted in order that the jury mi^bt find whether actual payments had been made, agree- ably to certain receipts produced in evi- dence OB a former trial between the par- ties ; if the defendant defeat that object by pleading a release puis darrein con- tintutnee, the Court will set aside the plea with costs; but has no authority to order the release to be given up to be cancelled. Goa$ V. Meuinett, 1 All. 104. 40 a— >A plea puis darrein continuance regularly pleaded and verified by affidavit, cannot be set aside as false. If the facts stated in the pica are denied, the plaintiff should take issue on it. Gilbert ▼. Qra- ham, Mich, T. 1872. 338 PRACTICE. 41 — ^Bill of Exceptions — Setting aside bO' fore return to writ of error. See Bill of Exceptions. 48— Precipe. Quart, Whether proceedings will be set aside for want of a precipe — Entering an appearance is a waiver of the objection. Kirlin t. BaUlie, 2 AU. 115. 48— Seoond ^eotment— Beflisal to enter into consent rule. Where a second ejectment was bronght in oonseqaence of the tenant's refusal to enter into a consent rule containing a proper description of the premises, the Court refused to stay the proceedings until the costs of the first suit were paid. Doe d. Morrice v. Roe, 3 All. 84. 44— Several actions— Same cause. Four actions of trespass for taking goods were brought by the same plaintiff 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. Lawton v. Gray, 3 AU. 576. 4B— Trving cause as undefended— No It is irregular to try a cause without a formal plea on which issue can be joined ; therefore where a cause was tried as un- defended, the Court set aside the verdict on application 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 he had received notice of trial. Cameron v. Connell, 3 AU. 398. Writ — Mbnomer — Affidavit. See Affidavit III. 6. Levy — Setting aside. See Execution I. 7. 40— Procedendo. A writ of procedendo was issued after a habeat corput to remove the cause was filed, as also common bail, but it appeared that there had been a Jrevious irregularitv in the writ of ha- eat corpui bv which the cause had been removed, and the writ afterwards was amended by the defendant's attorney, who availed himself of the writ so improperly amended to defeat the plaintiff's right of action, by refusing to receive a declara- tion ; both parties 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, 3 Kerr 343. 47— Suspending proceedings— Amend- ment. Pending a writ of error, the Supreme Court may in its discretion allow an ap- plication to be made to the Court below 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 blank on the record of the Court below. Kinnear v. Gallagher, 1 Kerr 424. 48— Belief from judgment— Infant— Scire flaoias. Where a judgment by default was entered against two defendants, B. and C. (B. alone being served with proeess) it 1834, upon a joint and several promissory note, purporting to be signed by B., for himself and also for C, and a scire facias was now issued whereon to found an exe- cution 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 mfide wholly with- out his consent or knowledge. That C. was entitled to be relieved against the judg- ment ; 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 com- promise since coming of age by payios a third of the debt, was sufficient to deprive him of his right to relief. Mitchell t. AstU, 2 Kerr 86. 48 a— Judgment— ITon-flling of papers — XstoppeL After judgment in a case which had been defended, a motion was made to set aside the judgment^. /a., 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 omission had only verv lately caiuo to defendant's knowledge; that he had a good defence on the merits, and that the fi. fa. diff meiit — wh made to at correspond That the de ceedings in tageofthei etc., and th fi. fa, on J That the pi lect, had Lynott V. I. 49— Non-res: Neoess: A writ, iss limits of th Vic. 0. 25, in Ireland o requiring hii On the 17t plaintiff filec and on the Judge's orde cause as of A enter a rule t and, in case t the first day to be at liber ment, and to j nary practice the 19th Dei ment by def February 18' 19th May. J. J., dubiUn no right to pr of the writ w the order of ] back to the and that thol ed in pursuaf interlocutorv Mitchell V. SO-Neoessitj In iissessingl after judgmef must establil or I ^_„ only evidencJ shewing sevcf the defendai transactions,! plaintiff tha( true,"--it judgment \ W-Separate . and cosl aql PRACTICE. 339 ji, fa. differed in amount from the judg- ment — whereupon a cross application was made to amend the^. fa. that it might correspond with the judgment. Held, That the defendant was estopped,by his pro- ceedings in the action, from taking advan- tage of the not filing of the plaintiff's papers, etc., and that the latter might amend the ji. fa. on payment of costs. Held also, That the plaintiff's attorney, by his neg- lect, had forfeited his costs of suit. Lynott V. Seelye, 1 All. 35. 40— Non-resident— Judge's order- Necessity of obtaining order. A writ, issued for service beyond the limits of the Province, under the Act 18 Vic. c. 2.5, was served on the defendant in Ireland on the 19th September 1870, requiring him to appear within sixty days. On the 17th November following, the plaintiff filed an entry docket in the cause; and on the 12th December obtained a Judge's order authorising 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 judg- ment, and to proceed according to the ordi- nary practice, the declaration was filed on the 19th December ; interlocutory judg- ment by default was signed on the 8th February 1871 ; and final judgment on the 19th May. Held, (Fisher and Wetmore, J. J., dubitantihua) That the plaintiff had DO right to proceed in the cause after service of the writ without a Judge's order ; that the order of 12th December did not relate back to the previous entry of the cause ; and that the cause not having been enter- ed in pursuance of the Judge's order, the interlocutory judgment was a nullity. Mitchell V. Lawther, Hil. T. 1872. SO-Neoessity of legal proof. Id assessing damages under the Act after judgment by default, the plaintiff must establish the amount of his 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 transactions, with an affidavit of the plaintiff that the "account was just and true," — it was held insufficient, and the judgment was set aside. Ibid. 61-Beparate actions— Payment of debt and costs— Judgment roll. Separate actions having been brought against three joint and several makers of a promissory note, the defendants offered to pay the debt and costs to the plain- tiff's attorney, 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 proceed- ings should not be stayed on payment of the debt and costs. The summons was served on the plaintiff 's attorney at Richi- bucto on the 12th December ; the dama- ges were assessed and judgment signed on the following day; the agent of the plaintiff's attorney having no notice of the summons. The Court set aside the judgment, and ordered the proceedings in the three suits to be stayed, on pay- ment of the debt and costs up to the 12th December, — not being satisfied that the judgment rolls had been made up until after the defendant had offered to the plaintiff's attorney to pay the amounts due. JUcInemejf v. Chandler, Hil. T. 1863. In ordinary cases, the plaintiff's attorney is not justified in making up the judgment roll, in order to charge the defendant with the costs of it, till the damages are " Ibid. VII. Irbeuulabity. 1— Special jury— Striking— Trial by common jury. The plaintiff obtained a rule for a special jury, which was struck, and reduced to twenty-four by the defendant at the re- quest of the plaintiff's attorney. The plaintiff's attorney then took the list to examine it, and kept it without making any objection, but afterwards, without notice of his intention to abandon the special jury, tried the cause by the com- mon jury as undefended, the defendant refusing to appear. Held, That the trial was irregular. Bradbury v. Baillie, 1 All. 427. Quare, Whether a party, after obtaining a rule for a special jury, has a right to abandon it? Ibid. 2— Service of rule nisi. Irregularity waived by entering cause on special paper and appearing by coiinsel. Barlow v. O'DonneU, 1 All. 433. 3 — Taxation of costs on Good Friday not irregular. Gilmore v. OiUtert, 2 All. 50. 340 PRAOTIOB. 4_jiBdaylt to hold to baiL . Irregularity waived by pleading to the action. McPhelim v. Lanon, 4 All. 71. 6-BaU. Q%uert, Whether an applioation fur relief nnder 1 Rev. Stat. c. 124, estops bail from applying to dtfend on the merits? Rippey V. Awlin, 4 All. 77. Distress — Breaking Door, See Distress. 6— Warrant of attorney— Absonce of attorney. Where a defendant is substantially in custody at the suit of a 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 aotuallv been dis- charged therefrom, although he was told he might leave it. Led^ v. ffanton, 1 Kerr 90. 7— Venditioni Ezponaa. Irregularity in issuing will not affect a purdiaser under Sheriff's deed. See Doe d. Hazm v. Mazen, 3 All. 87. 8— Joint debtors— Benrioe— Venire. In an action against joint debtors, where all are not served with process, and the plaintiff proceeds under the Act 26 Geo. 3, 0. 24, It is irregular in making up the record to allege that the defendants not served tay nothing in bar etc., as in a judgment by default; nor should the award of the venire be to aueu damage* against such defendants, as well as to try the issue joined between the plaintiff and a defendant who has pleaded. McLavgh- lin V. Ratch/ordf 3 Kerr 421. 9 — Entry of Cause — Bail. See Supra VI. 25. 10— Znterlootttorjr judgment— Signing. An interlocutory judgment signed oy the Slaintiff, after demand of plea, where the efendant had filed the general issue but negleotod to give a copy of it to the pkintiff's attorney, was held to be irre- gular. Lockwood V. Broun, 2 Kerr 82. ll—Ths plaintiff having demurred to the de- fendant's plea, delivered a copy of his de- murrer to. the defendant's attorney, re- ceived from him a joinder in demurrer with objections, and gave him notice of setting down the case for argument, whereupon the demurrer book of the defendant was made up and daliMred ; but the plaintiff, discovering thatthe defendant's papers in (h > cause were not on file, signed inter- locutory judgment; subsequent to which the attorney of the defendant who bad been in default for non-payment of Gonrt fees, purged his contempt by paying up the fees, and procured a Judge s order to the clerk to receive his papers. On . motion to set aside the interlocutory judgment for irregularity, so signed ailer the several steps taken — Held, That tbo signing of the interlocutory judgment 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 irregularity, the plaintiff having been in the dark as to the circumstances after- wards discovered. Parteloio v. Smith, 3 Kerr 349. 12— Judgment by defoult — Common A judgment by default, signed by the pkintiff before common bail is filed, or appearance entered for the defendant, is irregular, and such irregularity will not be considered waived by the mere delivery of a notice of appearance by an attorney for the defendant, if the plaintiff's attor- ney, after receiving such notice, has neglected to deliver a uopy of declaration according to the practice of the Court. Johnston v. Comwall, 1 Kerr 197. IS— Judgment— Signing— Time. It is no ground for setting aside a judg- ment, entered up on a verdict recovered at the assises, for irregularity, that it was signed on the same day that the rule for judgment is actually entered ; more than four days having elapsed since the com- mencement of the term. This rule is considered as entered on the first day of the term, though not actually done until afterwards. Frink v. P/aW, 1 Kerr 656. 14 — A judgment having been signed on 16th October, the rule ni$i being entered on 13th, was set aside as irregular, the four days' rule not having expired. Hat- ton V. Flaherty, Ber. 129. IB — ^Demand of plea. The rules of Easter Term 25 Geo. 3, re- quire, in all cases, a declaration to be filed ; therefore, if the plaintiff demands a plea twenty days after delivery of a copy of declaration to the defendant's attorney, but before twenty days after filing the declaration have expired, such demand is irregular. Pa$»nu)re v. burner, a M: 103. PRACTICE. Ml 16— Beoogniianoe roll— Bail pieo*. It is irregular to make up ana file a re- cogoiiance roll until the apeoial bail piece be on file to warrant it. O'Connor t. Moti, 2 Kerr 509. Bailable Writ — No cause of action stated in ac etiam clause an irregularity. See Supra IV. 1. Affidavits used in moving for rule nisi for niandauiuR are irregular, if entitled in a cause. See Mandamus. See Affidavit II. 3. Execution — Part levy — Return — Non-re- cital. See Execution III. 2. Service of Process. See Supra IV. No personal service, nor Judge's order. See Supra VI. 31, 32. Attorney's name on record. Irregular for more than one attorney's name to appear on record. See GUmore V. BuU, 1 Kerr 94. Trying cause without formal plea on which issue can be joined, is irregular. See Supra VI. 45. Setting aside proceedings for irregularity. Sec Supra VI. VIII. RVLBS. 1— Casual eijeotor. A rule niti for judgment against the casual ejector need not state the name of the teaant, nor the number of days allowed him to appear. Doe d. Taylor v. Roe, 1 AU.\. 2-Olaiming to defend as landlord. If the relation of landlord and tenant does not clearly exist, there should be a sum- mons or rule nin, before a person claim- ing as landlord can be allowed to defend an action of ejectment in that character. Den d. FauU v. Fen, 1 AU. 686, 633. 3 — Rule for judgment considered as entered on the first day of term, though not actually done until afterwards. IVink v. PhU, 1 Kerr 656. 4-Order of ICisi Friua. There must be a motion in Court to make an order of ni'st pritu a rule of Court. Underwood, v. McHenry, 2 All. 94. 6-Bule for bodj^. A rule for Shoriflf to bring in the body of the defendant, may be taken out in term without motion in Court. Porter v. Burnt, 1 AU. 106. Quare, If the usual rule for body be entered in the docket agreeably to the practice, it may not be token out in vacation. Ibid. 6— Costs— Moving Bule with Costs. A rule dischargeable without costs, if moved with costs will be discharged with costs. l\»ter v. Burnt, 1 AU. 106. 7 — If a rule fur setting aside proceedings with costs, 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 ot dbchargiug the rule. KeUy v. Wilton, 1 All. 199. 8— Where a rule niti for a cerliorai to re- move a conviction is discharged, the suc- cessful party is not entitled to the costs of opposing the rule. Ex parte Daley, 1 All. 435. 9 — Where a new trial has been granted on payment of costs, and they have been taxed and demanded of the attorney 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 ibr that pur- pose absolute, unless the costs were paid in ten days after service. Scribner v. McLaughlin, 1 AU. 440. See further — Costs. 10— Costs— Attachment— BequiBites. Refusal to pay costs taxed upon an agree- ment for consent rule — the rule must bo drawn up before motion for attachment. Doe V. King, 3 Kerr 178. 11 — To enable party to obtain rule for attachment for non-payment of costs, the costs should be toxed after consent rule is taken out. Doe v. King, 3 Kerr 296. 12 — ^Rule for attachment for non-perform- anco of award, the award must be before the Court. Markt v. Marki, 3 Kerr 486. 13— Demanding oosta Copy of power of attorney should be served on party when costs demanded. Doe V. King, 3 Kerr 492. 14 — Affidavit of demand of money must state the day of demand. Campbell v. Todd, 3 Kerr 199. 15— Attachment— Witness. Clear cose of contempt must be shewn. Not necessary to shew that witness was called on subpoena if it appe(^|rs that ^ (114 '■'s m I III 342 PRACTICE. not attend — the materiality of his teati- Biony not taken into consideration. Ma- hney v. Morrison, 3 Kerr 240. 16 — Mandamus — Rale discharged — Costs not allowed — Affidavits being improperly entitled. See Affidavit II. 3. Rule for Certiorari. See Certiorari. 17 — Rule tiMt for new trial granted, and on argument, Court equally divided in opinion, judgment follows on the verdict. Gaudin v. McKllliyan, 2 Kerr 477. 18— Befuaal to amend rule. Where a rule had been obtained in a former term for setting aside a judgment for irregularity with costs, the (Jourt re- fused to amend the rule by ordering the plaintiff's attorney to pay the costs. Ilailmk V. WaUon, 2 Kerr 362. 19— Bole nisi— Bemodelling of rule. Where a rule nisi has been granted to enter a non-suit pursuant to leave reserv- ed at the trial the Court may remodel the rule, and order a new trial on payment of costs by the plaintiff. Doe dem. Brjfson V. Fleet, East. T. 1873. Discharging rule for peremptory under- taking. Enlarging rule. See Judgment as in ease of Non-suit. IX. Notices. 1— Notice of trial— Time of taking efiteot. A notieo of trial sent to the defendant's attorney through the post office, can only take effect from the time it is received. Crane v. Tajflor, 2 Kerr 171. 2— Receipt of notice. An affidavit of the defendant's attorney that ho did not receive any notice of trial, is not sufficiently answered by shewing that a letter containing such notice, directed to the attorney, W3.s put in the post office in due time, it not appearing to have been received by the attorney. Fraser ▼. Harding, 2 Kerr 375. 8— Bequiaite notice— Da^. The rule of Hil. T. 9 Geo. 4, requiring " at least fourteen days notice of trial " — means fourteen clear days; therefore a notice served on the I2th for the trial of a cause on the 26th of the same month is insufficient. Grumble v. Per- letf, I AU. 376. 4— York aittings. Under the rule of Court Michaelmas Term 1 Vic, thirty days' notice must be given of a motion for a new trial from the York sittings, although points have been reserved at the trial. Turner v. Hammond, 2 Kerrb'i6. 6— Term'a notice. Where a year has elapsed after issue joined without any proceedings in a cause, a term's notice must be given of the plaintiff's intention to proceed. CW- nell V. Sisson, 4 All. 504. 6 a— Term'a notice— When not neoea- aary. A term's notice of intention to proceed is not necessary though four terms liavo elapsed since issued joined, provided the plaintiff brings the cause to trial at the first circuit when it could bo tried after issue joined. Justices of Northumber- land V. Jiussell, East. T. 1873. 6— IVew notice— When neoeaaary. There must be a new notice of trial when the cause is made a remanet, or put off by rule of Court or order of nisi prius. Fra- ser V. Harding, 2 Kerr 575. Notice of trial not given — Setting aside ver- dict. See Supra YI. 19. 7r-Coata— Beview of taxation. * As a general rule, notice of an intended motion to review taxation of costs must be given as Roon after the taxation as circumstances will permit. Doe d. Mc- Vallum V. Roe, 2 All 143. 8 — Bail — Notice of render. See Bail 35. 8— For allowance of intereat. Notice should be given of an applicatioD to be allowed interest on the affirmance of a judgment in error. Mills v. Vail, 4 All. 629. 10— Inquiry— Ck>untermaud. Notice of countermand not sufficient to save costs for not proceeding to execute a writ of inquiry, unless given at least ten days before the time appointed for the in- quiry. See General Rules 77. 11— Oountermand-Inqtiiry-SuffloieQoy of notice. A notice of inquiry is not sufficiently countermanded, unless it is couimuni- cated to the Sheriff; therefore where the plaintiff's attorney gave a notice of coun- termand to the defendant but omitted to inform the Sheriff, who on his way to execute the writ, according to the original notice, told the defendant that it would PRACTICE. 84S be executed on that day — it was held that the defendant was juotified in attending and was entitled to his costs of such attendance, notwithstanding the notice of countermand. Wallace v. Scott, 1 Ail. 261. 12— ITotioe— When neoeaaary. If four terms have elapsed since signing interlocutory judgment, a term's notice of executing a writ of inquiry is necessary. McDonald v. Upton, 3 Kerr 565. Notice of meeting of Arbitrators. See Arbitration IV. Notice of Appeal. See Supra V. 3. See further — Notice, etc. Demurrer — Setting down cause for argu- ment. See Infra XI. 3. X. iNQtIIBT (WbIT of). 1— Defence— Credit— Agent. After judgment by default on common counts for work and labour, etc., the de- fendant may shew on the execution of writ of inquiry that he contracted merely as agent of the person to whom the credit was given. Falls v. Saryent, 3 Kerr 248. 2— Interlocutory judgment— BeviTaL It is not necessary to issue a scire facias to revive an interlocutory judgment more than a year old before issuing a writ of inquiry. Ibid. 8— Term's notice. If four terms have elapsed since signing interlocutory judgment, a term's notice of executing a writ of inquiry is necessary. McDmald v. Upton, 3 Kerr 665. 4— Writ— Direction— Judge— Betum. Whore a writ of inquiry is ordered to be executed before a Judge at nisi prius the Judge sits only as an assistant to the Sheriff. The writ should be directed and the inquisition returned as in ordin- ary cases. A writ directed to the Sheriff and Judge, and an inquisition returned under the seal of the Judge is a nullity and is not waived by the defendant's attending and taking part in the inquisi- tion. Fowlie v. Stronach, Ber. 57. 6— Setting out declaration in writ. Q^Mre, Whether whole declaration should be set out in writ, where, on a special case, the Court held that plaintiff was entitled to recover only on some of the counts. If so, writ may be amend- ed. Kinnear v. Robinson, 2 Han. 73. 6— Order ex parte— Judge— Vacation. An order for executing a writ of inquiry before a Judge at nisi pritu, obtained ex parte from a Judge in vacation, is irregular, and the inquisition will be set aside. Cunardy. Frastr, Mich T. 1834. 7— No verdict— Second writ. If the jury summoned on a writ of inquiir are unable to agree and are discharged, a new writ may be issued without apply- ing to the Court. Ward v. Dow, Ber. 21 . Setting aside proceedings on Writ of In- quiry. See Supra VI. 20-22. See Judgment by Default. Countermand of Notice. See Supra IX. 10, 11. XI. Demurrer. See Amendment — Pleading. 1 — Court has no power to set aside a de- murrer as frivolous. Petty v. Hammond, 3 Kerr 686. 2 — Objections of form to a summary writ cannot be taken advantage of on demur- rer. Stephenson v. McLean, 1 All. 19. 3— Setting down cause for argument. A party whose pleadings are demurred to, wishing to set the cause down for argument, must give eight days' notice to the opposite party. Smith v. Dumin, 1 All. 263. 4— Admission from— Flea— Costa Where a cause has been set down for argument on demurrer to a plea, and the defendant obtains leave to amend on pay- ment of costs, he thereby admits that the plea is bad ; and he cannot afterwards, by refusing to pay the costs, be allowed to argue in support of it. The plaintiff in such case is entitled to judgment on de> murrer. Howe v. Carson, 3 Kerr 111. fr— Objections— Former pleading. Where one party demurs to any pleading, the only objections which the other party can make to the former pleadings are those which go to the substance, not the form of such former pleadings. Mecha- nics' Whale Ushing Company v. WhUn^, 3 Kerr 312. 6— Conclusion— Suf&denoy. A demurrer is sufficient in form though it does not conclude with a prayer of judgment. Tower v. Cox, East. T. 1873. 344 PHACTICB. XII. Fbionsd Issvk. 1— Doubtftil ftota. Where some of thi naterial facte neces- sary to be ezplaiix 1 in opposing a motion to set aside a judgment on a war- rant of attomev, were left doubtful by the affidavito, the Court ordered feigned issues to datermiae t^ 3se facto. IauU v. Ettabrooka^ 3 Kerr 144. 1— Svldenoe under. On a feigned issue, directed to try whether by the agreement and intent of the parties a certain judgment had been fully satis- fied by a settlement made between them in July 1843, a levy on all the defend- ant's property oa the 9th October, 1843, appeared in evidence. Held, That under the terms of the issue the defendant could not avail himself of such levy as any satisfaction of the judgment. Lunt V. Eitcbrookt, 3 Kerr 291. 8 — Bond and warrant of attorney— Tranaaotions. On a motion to set aside a judgment entered upon a bond and warrant of attorney, where the transaction which led to the giving of the bond and warrant is not satisfuctorily explained, and it is auestiunable whether the debt ^or which tne security was taken, was not satisfied before the entry of judgtiient, the Coivit may in ite discretion order an issue tj be tried, in order that the faots may be ascertained before a jury, and will direct the proceedings on the motion in the mcin time to bo stayed. Oilmour v. Dowaei, 1 Kerr 88. XIII. Arrest of Judoment. 1 — In an action for slander, the defendant pleaded the Statute nP Tjimitations : plaintiff replied, that a previous act' m was brought for the same slander in duo time, in which he had obtained a vcr'Mct, Mid judgment had been arrested (setting out the proceedings in the action as mat- tor \<\ pait, without any averment prout patet per ; .c.) ; and thbt the present action was brought within a year afli^r Bttoh arrest of judgmeiU. Rdoinder, That there is not any record of the several proceedings (setting them out urialim.) Sur-rejoindur, A ronotition of the repli- cation. Held, on aemurrer. That the arrest of judgment should have been entered of record, sad pleaded as such, BtardMley v. DibMje, 1 Kerr 642. 2 — Where the cause of action, as laid in the declaration, is proved, the plaintiff can- not be non-suited on the ground that the facta proved do not make out a cause of action : he must move in arrest of judg- ment. CameroH v. BearJtley, 2 Kerr 698. (See Non-suit.) 3 — If the defendant takes issue upon the facto alleged in the declaration, and they are proved, the plaintiff oann'>* be non- suited on the ground that i, is not in the form prescribed by tho Act, if the bond itoelf is correct Tho variance might be amended even afler notice of motion in arrest of judgment. Stem V. Jlanton, 4 All 450. See Bills and Notes I. 6. XIV. Incidental pRocsEniNas. 1— Review flrom Juatioe'e Court. Court will not receive afiidavito to fulHify return of Justice. See Justice of tho Peace. 2 — Party obtaining order for review has the right to begin. Btittin v. IIoweH, 1 AU. 506. 8— let-off— Judgments— Lien. Whore tho ('ourt allows one judgment to be set off againitt another, it must bo lub- jeot to the attomey'«< lien generally, and PRACTICE IN EQUITY. MS not merely to the extent of the taxed costs in the particular suit. Roger* v. LeMen, 2 Kerr 59. Semble, The Court will allow a judgment of the Inferior Court of Common Pleas to be set o£f against a judgment obtained in this Court, although the action in the Common Pleas may have been brought in the name of another person ; the de- fendant in this Court having the sole beneficial interest therein. Ibid. 4— Verdict— Judge— Power on trial. At the trial of a cause a Judge has not power, without the consent of parties, to direct a verdict to be given for the plaintiff, subject to be set aside, and ver- dict entered for the defendant upon puinte reserved. This can only be effect- ed by the jury finding a special verdict where no consent is given. Hughes v. Sutherland, 1 Ketr 574. 5— Similiter. By the practice of the Court a cause is at issue though no similiter has been added. Doe V. Smith, 1 All. 680. €— Pleading and notice pf defence. If two pleas are pleaded and a notice of otiier uiatters of defence are given, under the Act 13 Vie. o. 32, the plaintiff is not justified in treating them us a nullity; but should apply to a Judge to set tliem aside. Oulton v. Palmer, 2 All. 364. 7 — Continuances may he entered at any time before final jud^ ent. McDonahly. Upton, 3 Kerr 36q. 8— Costs— Acquitted defendant— Certificate ofJudge— Granting— Separatejudgments. See Costs 97. 9— Concurrent writs— ArrCBt. Where two writs for the same cause of action were simultaneously issued to two counties, and the defendant was arrested on both, application should bo made to the Court for relief. Johnston v. Brans- field, Ser. IB. 10— Particular practice must be strictly followed— Letting in to defend. Where any particular practice bus been prescribed by Statute, it must be strictly i'ullowed. Uold therefore. That the Act of Assembly requiring defendants in sum- mary actions to plead within thirty days after the return of the writ is iniperntivo, and that the plaintiff is not bound to receive the plea after the thirty days, although it bo tendered before the iuter- looutitry judgment and at the same time 44 with the entry of sp'^oial bail. The defendant however after interlocutory judgment may under the Act be let in to plead upon the usual terms. LmgUy v. Huestis, 2 Ken 4. U-Time for pleading-Demand of plea. Under the practice of the Court a defend- ant who has appeared, has twetaty days to plead flrom the time of service of a copy of the declaration ; and a demand of plea cannot be made before the expi- ratiou of such twenty days, although the rule to plead, entered at the time of filing the declaration, may have sooner expired. Fawcett V. Nethery, 2 Kerr 81. 12— Record entitling. A Record is properly entitled of the term in which issue is joined, though the judg- ment is not signed until a subsequent term. McLean v. Hubble, 3 Kerr 685. Assessment — Damages. See Assessment, Damages, Bond. Particulars — Sufficiency of — Supplyir., De- it'cts. See Particulars. Affidavits. See Affidavit. Leave to file in answer to new matter. See Affidavit VI. 8. Insolvent Confined Debtor — Payment ot weekly allowance. See Insolvent Con- fined Debtor. Application for discharge — Costs. See do. See various titles — Amendments, Attach- ment, Bail, Certiorari, Execution, Estop- {el, Enlarging Rule, Entry of Cause, Ixeoution, Filing Papers, Mandamus, Supersedeas, etc., etc. PRACTICE AT NISI PRIUS. i tee Trial. PRACTICE IN EQUITY. I. Praotiok in Qkneral. II. Injunotion. I. PHAOTIOE in GENBIlAt. 1—Be^jrenoe— Maintenance of children — Bxtrayagant allowance — Vur- ther reference. Where, on a reference as to the amount to be allowed for the mnioteuanee of children, it appeared that the amount rooommendod for past maintonanoo was extravagant, eonsicleriug the ages of tho children, and some of the charges were otherwise objsotionable ; and the sum I'- > ' M M6 PRACTICE IN EQUITY. recommoDded for future maintenance appeared to be in excess of their income, and made no distinction in respect to tueir agflt,— one of them being but four Tears old. The case was sent back to the barrister for farther consideration. Ex parte Gilbert, Allen, J., January 1868. 2— Oosts— Allowance of— Beferenoe— ]^t:7 making improper daims. On a bill filed for an account, the defend- ant, by his answer, denied any liability. A decree was made for an account, and a reference ordered, and, on taking the accounts, the plaintiff claimed more than he wasi entitled to, and the defendant improperly resisted what he was clearly liable fur. On cxoeptious to the barris- ter's report, an amount less than he claiuiud was decreed to bo duo to the plaintiiF, and the question of casts was reserved. On appeal by the plaintiff this decree was varied, 'lie Court of Appeal deciding that the accounts .sliould have been taken on u different principle from that adopted cither by the Judge or by the barrister on the reference. Held, That as the plaintiff was justified in filing the bill, he was entitled to the general costs of the cau^e up to the time of the decree of reference, and the costs of the hearing on further directions; but that having made improper claims before the barrister, and having thereby unneccsHari'y increased the expense, ho was not entitled to the costs of the refureuoe. lij/an v. Kfith, Ritchie, C.J., Juiniary 1868. 3— Injunction— Applioation ex parte— Duty as to statement of facts — Dissolution— Use of answer. It is the duty of a person applying for an injunction ex parte, to state not only all the facts in his kuowledgo which he may believe to be important, but all that might infliiduco the Court in determining the question ; and if he omits to do so, the injunction will be dissolved on that ground, without reference to the merits. Coy V. Coy, Allen, J., April 1868. A bill filed for an injunction should contain all the charges intended to bo proved against the uofondant; and if the facts stated in the bill are answered, or are insufficient to entitle the plaintiff to an injunction, an injunction granted rx parte will be dissolved, though the plaintiff, in answering the deieudant's affidavits, sets up new facts, which would have entitled him to an itiiuucticn if they hud been stated in the bill. Ibid. Where an injunction was retained till de- fendant had answered; after which he moved to dissolve it, and the notice of motion referred to the leave given to defendant to apply to dissolve the injunc- tion after putting hi his answer. Held, That the defendant might use his answer as an affidavit on such application, and that the filing a replication did not pre- vent its being so used. Coy t. Cay, Al- len, J., April 1868. 4 — Injunction — Bestraining adminis- trator — Matters of appeal from Probate Oo^irt. Where license to sell land had been granted to an administrator by the Probate Court, an injunction will not be granted to restrain him fr" ulling, ol the ground that Iw 'lad not fiilly ac- counted for money.s which came to his hands as administrator; or, that the personal estate was sufficient to pay the debts ; or, that the costs were impripi '-'v allowed in the Probate Court — t' •>*.; being matters of appeal from the dt. of the Probate Court. Ibid. 5— Death of one of several '"ditor shows some reason why ho could not have obtained the fruilc of his jitdgment by nn exe- ciitlo'i. Where a judgment creditor has a legal charge, he unist take all necessary proeeedingH ac law to enforce his claim, before he uan ask the assistance of r, ('ourt of Kqnity. Robertson v. Arm- slron;/, Allen, ./., A'ovember 1870. i: m PRACTICE IN EQUITY. 16— Maintenanoe of inflmts— Father's duty— Beferenoe for farther en- guiries. During the Kfetitne of a father, ntainte- nanoe for his children ^ill not, oa a gen- eral rule, be ordered out of their property — it being his duty to support them, if able. Where children were of the respec- tive ages of five, seven and ten years, with a juint income of $1000 per annum, and the barrister reported that this sum would be sufficient to support and educate them during their minority, and recom- mended that it should be so appropriated ; the case was referred back for further enquiries as to the amount necessary for the maintenance and education of these children— 1st, till twelve years of age ; 2nd, from twelve to sixteen years; and 3rd, from sixteen till their majority. Ex parte Stymegt, Allen, J., Nov. 1870. 17 — Ii^unction — Title to sustain — Prima flaoie right — Conflicting affidavits — Restraint in mean time — Qround for iAJunotion — Ck>ntinuous injury. Where the plaintiff is in possession of land, and shews a prima Jiicie right to it, and it is not dear that there is any bona fide dispute about the boundaries, he has sufficient title to sustain an injunction to prevent the overflowing of the land. Wcekt V. Dodilt, Allen, J., AujuHt. 1869. Where the affidavits were conflicting as to the effect of a mill-dam in overflowing the plaintiff's land — the defondanto affi- davits denying that it had ever done so — and an action at law was ponding to try the rights of the parties, the dufundunts were restrained from repairing the dam in such a manner as to overflow the plaintiff's land in the mean time. Ihiil. If the fact of overflowing land by uicuiih of a mill-dam is established, and it would bo a continuous injury to the piuintifi^s land, and deprive him of the use of part of it, it is a ground for an injunction. Ibid. 18— Objection— Bill not filed— Defend- ant 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 re(|uireutitie the plaintiff to a \m M I «:: m 350 PUACTICE IN EQUITY. dissolutiuD. A receiver was appninted, on notice, upon the statements in the bill. Bartktt v. Stymcst, Allen, J., January 1868. 27— Filing bill— Time. The words " within three months there- from," in the Act 17 Vic. c. 18, s. 4, relate as well to cases where there has been no appearance, as to cases where the defendant has appeared : therefore, io cases of non-appearance, the three months allowed fur filing a bill, be^iu to run at the expiration of forty days after service of the suuinions. Godfrey v. Reardon, Allen, ./, NucnnLer 1868. 28— Bill for foreclosure— Parties- Interest. A bill for foreclosure of a mortgage, against three defendants, stated that one of them was the mortgagor, and that the others claimed n 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 was refused. 'Jhlpman v. Tuck, Allen, J., April 1868. 20 — Probate Court — Appeal from— Must be made to Court. An appeal from the Probate ('ourt must be made to the Supreme Oourt in term, and not to a Judge sitting in Equity; and where such an appeal is made to a Judge, his proper course is to decline to hear it, (having no jurisidiction,) and not to dismiKH the appeal. Ex parte Roach, Alle.n, J , June 1871. 30— Disputed handwriting — Compari- son by Judge. If on a viva core hearing before a Judge in Equity, there is conflicting evidence of the handwriting of a witness, the Judge has a right to compare the dis- puted writing with an udiitittod signature of the witnesM. in order to determine whether it is his signature, llanninyton V. ffamlimnn, Ifif. T. I'^Ti. Sl—Bupplemental answer Allowance of -Omission of statement of facts Bights of parties inter- ested to be heard against allow- ance-Adding parties. Where a defemlmit r)uiittod to state certain facts in his an.swcr, on tlio advice of lii^* solicit*," that «ach stateuiont was uniieees- sary. nod that evidence of the tacts would 1)1' admiNHible witliout it. he Wiis .'ijiowed to file u supplemental uOKWer mi tlie afli- davit of his solicitor stating these circum- stances, and on payiuont of the costs occasioned to the other parties by his application. McLeod v. Firth, Allen, J., January 1873. On a bill filed by an executor and trustee for the purpose of obtaining a declaration of the trusts of the will, one of the de- fendants 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 appli- cation by this defendant to file a supple- ment^il answer in order to give evidence of this fact, — Held, That other defend- ants, interested as residuary legatees under the will, were entitled tt» be he.ard against filing the supplemental answer, and to their costs occasioned by the appli- cation, on the ground that this claim, if sustained, would reduce the residuary estates in which they were interested. Ibid. Sembte, 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 his children in fee ; they arc necessary parties to a suit by the executor for declaring the trusts under the will. Ibid. Where the objection of want oC parties was apparent on the bill, which might there- fore have been demurred to ; but was not taken till the cause had been partly heard, and then, in connexion with the defendant's apfilicatiou fur leave to file a supplemental answer, the plaintiff was allowed to amend by adding the necessary parties, without payment of costs. Ibid. 32 - Answer on file Bill cannot be taken pro confesso. If there is an answer on file, the bill cannot be taken pro eun/enso, whether the i'aet appears by the admission of the plaintiff's counsel or otherwise. Lorkhart V. Sancton, Alien, ./.. January 1870. Costs. See further— Costs 67 to 62, 77, 7i). Inherent power in Court to amend pleadings. Sec Amendment 1. 18. Subse(|iieiit iiltoration of decree — Party not having appeared in suit. See Divorce. nncc'Dury, on PRACTICE IN EQUITY. 361 II. Injunction. See Supra I. :J, 4, 17, 22, 26. 1 — Restraining defendant from pro- ceeding on note— Defence at law —Legal rights. The plaiutiff drew a promissory note in his own favor, which he indorsed and delivered to 0., to whom he was indebted. C. assigned ull his property to trustees for the benefit of his creditors, and the trustees transferred the note to the de- fendant, who was a creditor of (!. Be- fore the transfer of the note, C. had become bankrupt in England. The de- fendant having brought an action against the plaintiflFon the note, — Held, 1. That if the plaintiflF could set up the right of C 's assignee in bankruptcy to the note, it would be a defence to the action, and therefore the plaintiiF had no right to an injunction to restrain the defendant from proceeding on the note ; 2. That tuough the trust deed gave the trustees no power to sell or assign debts, they had a right to pay the creditors of C with the assets of his estate in kind, if they were willing to receive them ; 3. That though a clause in C.'rt trust deed, relative to the divi- dends due to such of his creditors as should not execute the deed within a limited time, might be fraudulent as be- tween the immediate parties, the plaintiff could not take advantage of it as a ground for restraiaing the action on the note against him. Gilbert v. Campbell, Hil. T. 1862. a-Saint John Water Company— Bights —Private rights aflfeoted— Reme- dy at law— Delay. The Act 2 Wm. 4, c. 26, incorporating the St. John Water Company, autho- rized them to draw water from, erect reservoirs on, and carry pipes through private property, as they might think nofcsoury, on paying compensation to the owners for any damage sustained thereby. The Act 12 Vic. c. 51, authorized the Company, in order to procure a more efficient supply of water, to enter on pri- vatti property, and " build dams or eni- bimkuients on any brook, stream, lake or pond, for the purpose of creating artificial ponOd or reservoirs, and by such dams or embankments to cause the flowago of such private property, and to continue such fldwngo as long as they should see fit;" but that uo such dams, etc., should bo built, or ponds or reservoirs made, or pipes laid down, without compensation to the owner of the land for any damage sustained thereby (pointing out how the damages were to be ascertained in case the parties could not agree). By the Act 18 Vic. c. 28, all the rights and powers of the Company were vested in Commissioners. Sec. 7 declared that it should be the duty of the Conimiseionera " to extend the present water supply as far us they nuiy deem it practicable or expedient, by carrying a sufiicieht main or mains to Latiuter's Lake and Loch' Lomond, or either of them," etc. A dam was erected by the Company over a stream called " Little River," the pro- perty of the plaintiff's mother, and a reservoir constructed. After her death, in 1850, the dam was continued, and pipes laid down to convey the water therefrom, 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 in- junction to restrain the Commissioners from continuing the dam. Held, 1st. That the Company had a right to appro- priate the water of any stream that could be made available for the purposes con- templated by the ka*. 2nd. That the 7th sec. of the Act l^j Vic. c. 35, autho- rizing the Commi^'cioners to take water from Latimer's Lake, did not abridge any rights previously granted, or impli- edly restrict the Commissioners from using the water of Little River. 3rd. That if the making compensation to the owner of the land was a condition prece- dent to the entry and construction of the works by the Company, or the Commis- sioners, their entry was illegal, and the person whose right was affected had a remedy at law. 4th. That it did not appear that irreparable injury would be done to the property of the plaintiff by the operations of^ the Commissioners; and that after so much delay, with knowledge, or the means of knowledge of the works of the Commissioners, it was too late to interfere by injunction, JJots/ord v. Seam, East. T. 18G4. 3 — Restraining Administrator from selling assets to pay debts — No sufficient answer— Injunction not dissolved. Where an injunction hud been panted ex parte, to restrain an administrator i 8B2 PRACTICE IN EQUITY. PRESUMPTIONS. from selUne land under a license granted by the Probate Court, on the ground that be had sold property under a former lioenBe under value, and had sufficient property in hia hands to pay the debts, an application to dissolve the injunction was refused till the defendant had answered, it not being clearly shewn by his affidavits that he had not a portion of the estate in his possession which belonged to the heirs. (Joy v. Coy^ 1 Urn. 177. 4— Bight of judgment creditor to sell imder execution — Bestraining 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, can- not restrain the creditor from selling, and thereby acquiring a locrvs standi to con- test the title. Ca*e v. Palmer, 2 Han. 183. 5— Judgment debtor having no inter- est—Defence at law. If the judgment debtor has no interest in the land levied on, the Sheriff's deed conveys nothing, and the party in pos- session will have a good defence at law, and therefore does not require the assist- ance of a Court of Equity. Ibid. 6— Bestraining Company from over- Howing land untu conditions folflUed. The St. John Water Company, in con- oonsideratiun of being allowed to overflow a part of the plaintiff's Innd, agreed to build a bridge over the overflowage, for the convenience uf the plaintiff, and to keep tho same in repair as long as the overflowage continued; in accordance with this agreement, they built the bridge. By Act 18 Vic c. 38, all tho rights and powers of the Company, subject to their outstanding liabilities, were vested in the defendants, who allowed the bridge to get oat of repair, though they continued the overflowage; an iigunotion was granted to restrain them from continuing to over- flow the plaintiff's laud till the bridge was put in a proper state of repair, and also to restrain them from allowing tho bridge to remain out of repair while they continued to overflow the land. liyan v. Lockhart et al., East. T. 1872. 7-Applio»tion ex parte— Party apply- ing muBt state all important foots. Where a party applies for on «* tmrte injunction, he is bound to state all tho fketa which are important to bo brought before the Court, and which might influ- ence it in determining upon the applica- tion ; and if important facts, within the knowledge of the party, are omitted, the injunction will be dissolved without re- gard 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 har- bour of St. John — the plaintiffs claiming by their charter the soil of the harbour, and the space between high and low water marlc; but the defendant held, under a prior grant from the Crown, ex- tending to low water mark, and claimed the right to extend his wharf, as tho owner of the land, which facts were known to the plaintiffs, but were wholly omitted from their bill — the injunction was dissolved on this ground alone. Mayor dec. of St. John v. Brown, East. T. 1872. Unregistered mortgage of ship — Applica- tion refused to restrain purchaser from disposing of ship. See Snipping Law 3. Erection of dam in public stream — Restrain- ing destruction of dam by persons not obstructed. See Water Course. PRECIPE. See Practice VI. 42. PRESENTMENT. See Bills and Notes. PRESIDING OFFICER. Right to vote — Return by. See Eloctioa .ight t( Jiaw. PRESUMPTIONS. See Evidence VI. Possession of land — Continuance. See . Limitation of Actions IV. 18. Right of way — Lost deed. See Evidence VL 12. Payment over of money. See Assumpsit III. 44. Sheriff's proceedings — Regularity. See Sheriff's Deed 2. Deed of Master in Chancery. See Deed L17. Newspaper — Publication. See Joint Stocic Company 3. Authority of officer. See Evidence VI. 1,2,5. Surrogate — Oath. " do. 1. P 1-Cre^ Wher who d it is a to wh( the e will n Curry 2-R.,a plainti: tho ptil on accc but pla iu.suran and thii The pr not appi it eithei all the c in the pi No clait till aboi Held, T reeled tl U. was o itiudaut, not after the preii a/., 2 //« d-Subsori person -Clain A pursun scribers : Stock C( their nub the Coni[ latter, an( pany for I fax Stea Ber. 47. 4— Tho rigl for agencj only upon of which t 8— Agreem< Bstop In trover under an i tho one p fondant cl D. granted certain lun property o fho agree the propri( by 1). thai PRINCIPAL AND AGENT. 35» PKINCIPAL AND AGENT. 1— Credit to whom giren. Where a purchaee is made bj 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 where the evidence is conflicting, the Court will nut disturb the verdict. Scott v. Curry, JJil. T. 183i. 2 — K-, a broker, effected insurance with the plaintiff on account of the defendant; the policy was issued in the name of 11., on account of " whom it may concern ;" but plaintiff knew at the time, that the insurance was for the defendant's benefit, and that R. wan only acting as his agent. The premium was not paid, and it did not appear that the 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 It's name. No claim was made upon the defendant till about a year after the insurance. Held, That the jury were properly di- rected that if the plaintiff, knowing that U. was only acting aa agent fur the de- fendant, gave the credit to R., he could nut aflerwurds look to the defendant for the premium. Stymest v. Soloman et af., 2 Han. 6. 3-Sab8cribers for stock appointing person for speoiflo purpose— Agent —Claim— Commission. A persun appointed by a number of sub- scribers for stock in a proposed Joint Stock Company, to receive and remit their Hubscriptions to the head ofl^ce of the Company, is not the agent of the latter, and has no claim against the Com- pany for his services. Quebec and Hall- fax Steam Navigation Co. v. Cunanl, Ber. 47. 4 — The right of an agent to retain money fur agency and oommission is exercisable only upon the specific money on account of which the charge is made. Jbid. 6-Agreement— Making of by Agent— BatoppeL In trover for timber, plaintiffs claimed under an agreement made between D. of the one part, and S. (under whom de- fendant 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 stnnipago was paid. The agruuniont was higned by D. " for the proprietors, by J. B," It was proved by D. that the plaiutiflb were the pro- 45 prietors of the land, for whom he acted as agent when he made the agreement. Held, Ist. That it appeared by the agree- ment that it was made by D. as agent for the plaintiffs, and that they could take the benefit of it (Ritchie, J., dubitante). 2nd. That the defendant, claiming under S., could not dispute that the plaintifb were the proprietors of the land. Haaey v. UathcKay, Hit. T. 1865. 6 — Authority to appear and defbnd suits. Defendant being about to leave the Pro- vince, gave a Power of Attorney to an agent, authorieing him to appear to and defend any action that might bo brought against the defendant during his absence. A suit was commenced, and a copy of the writ sent to the agent, who declined to appear. Held, That the agent was not bound to appear, and that interlucu- tury judgment signed fur want of appear- ance, wuf' irregular. Harris v. Mitchell, 1 Han. 2. 7— Powers and authority. Under a power given by the Tobique Mill Company (who were incorporated by Act of Assembly) to their agent, " to manu- facture logs into lumber at the mills, and transport them to market, and sell and dispose thereof fur the cumpany's benefit." Held, That the agent was nut authurized to deliver over the lumber at the mills, without the knowledge of the directors, in payment of securities given by him on behalf of the company, for debta con- tracted in the course of his agency. Such delivery vests no property in the creditor. Lombard v. Winslow, 1 Kerr 327. Quscre, Whether the Tobique Mill Com- pany could give authority to their agent to make promissory notes, and if he could make them iu his uwa favor. Ibid. 8 — Where an agent is authorised to receive money only, payment to him by a bill of exchange will not discharge 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. Boltenhome, 2 Kerr 581. But payment to such agent by the promis- sory note of A third person, indorsed by the debtor for the purpose of being immediately discounted at a bank, and which is so discounted, and the money therefor roooived by the ageat for his u ffl qp 364 PRINCIPAL AND AGENT. principal, without any liability on the note attaching to the principal, may be considered as a money payment by the debtor. Crane v. Bol*ennowe, 2 Kerr 581. 9 — ^The plaintiff entered into a written agreement with 6. to supply him with ft quantity of logs; B. transferred his right to the logs to the defendants, who entered into the following agreement with the plaintiff: "We agree to pay 8. (the Elaintiff) the balance that may be due im by B. on account of logs to be fur- nished by said S. to said B. as per agree- ment and settlement, when the whole of the logs now remaining on Hovey brook, etc., are driven down past the mouth of Clearwater brook." The plaintiff and B. afterwards made a settlement without the knowledge of the defendants, on which a balance was struck in favor of the plain- tiff. Held, That B. was not the agent of the defendant for the purpose of this settlement ; and that in 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. Gilmour, 3 Kerr 165. 10 — ^The authority of an agent specially authorized to draw a bill of exchange for a particular purpose, ceases on the accept- ance, and if the drawer is discharged by want of notice of dishonor, the agent can- not, without further express authority, revive the liability by agreeing to waive the legal discharge. Mc Ghie v. Gilbert, 1 All. 235. II— Liability of agent. An agent with power to raise money, whose principal resides abroad, is person- ally liable to an attorney retained by him to carry on suits for the principal, unless he limits his liability at the time. Jack v. Cletoen, 3 Kerr 637. 12— Public agentB. The defendants, under the Adt 7 Wm. 4, c. 28, were by the General Sessions of the Peace for the County of York appointed a committee of management for the erec- tion of a new gaol ; and in that capacity contracted with the plaintiff, binding themselves and their suocessors as such, on behalf of the said county, and subscrib- ing their names " a committee on behalf of the county." Held, That they were mere agents for the public, and not per- sonally liable on the contract. Blair V. Robinson, 3 Ken- 487. 13— Beferees- When agents of pairties. Plaintiff being lessee of land, assigned one half of it to the defendant, who entered into a bond to pay the plaintiff for half the buildings, suon sum as two arbitrators should determine before a certain day: the arbitrators not having been appointed under the bond, the par- ties afterwards agreed verbally to refer the valuation to arbitrators, who made an award of the value. Held, That the referees were the agents of the parties to settle the value, and that the plaintiff might recover the amount awarded by them, as an account stated. Coram v. W/ieten, 4 All. 293. 14— Policy— lasue-Notioe. A policy of insurance is considered as is- sued when the agent forwards it to the brokers for delivery. (Per Ritchie, J.) McLaughlan V. ^tna Ins. Co., 4 All. 173. 15 — Notice of a prior insurance to an insur- ance broker, is not notice to the Com* pany. Ibid. 16— Liability of principal to indemni- fy a^nt— Implied contract. The defendant being the owner of a steamboat of which the plaintiff was mas- ter, 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 into the harbour in the night came in colli- sion with and sunk a schooner, the owner of which recovered damages against the plaintiff for negligence. Id an action by the plaintiff against the defendant for in- demnity, the declaration alleged, and it was proved, that towing vessels was a dangerous business, and that the danger was much increased by the loss of the rudder : it was also proved that the plaintiff might have replaced the rudder, and need not have entered the harbour in the night. Held, (Street, J. dissen- tiente), That the plaintiff must be pre- sumed to have known that he was doing an unlawful act, and therefore there was no implied contract by the defendant to indemnify him against loss; and per Parker, J., even if there had been an ox- press contract to indemnify against such risks, it would be void as being contrary to public policy; and per Wilmot, J., that the plaintiff i^os estopped by the PRINCIPAL AND SURETY. 355 judgment recovered against him by the o^rner of the schooner, from disproving his own negligence. Leavitt v. Parks, 2 All. 282. Held also, That the plaintiff's conduct being unlawful, no subsequent ratification of his acts by the defendant would make him 'liable. Ibid. Held, per Street J., That to destroy the implied liability of a principal to indem- nify, the acta of the agent must be clearly illegal, to his knowledge, and that towing the ship under the circumstances was not so; and therefore if the principal cither authorised or approved of the agent's acts, he was liable to indemnify him. Ibid. Semble, That if the action was maintain- able, the plaintiff would have been en- titled to recover the amount of damages and costs in the judgment against him, though he had not actually paid the costs, having given his note therefor on being discharged from custody ; but that he would not have been entitled to dam- ages for his imprisonment, if he had the means of paying. Ibid. 17— Accredited agent— Appointment— SeaL In order to prove that a person acting as the agent of a foreign insurance company, by issuing policies in their name and re- ceiving premiums thereon, is their ac- credited agent, it is not necessary to shew his appointment under the corporate seal. Robertson v. Hie Provincial Mutual and General Insurance Company, 3 All. 379. 18— Proof— Writing— ParoL SemhU, That the fact of agency may be proved by parol, though the appointment was in writing. Wilson v. Street, 3 All. 251. 19— Batiflcation of acts of Agent. D., a plumber, working on defendant's house, addressed to him a memorandum stating that he would require to send to plaintiffs in Boston for certain articles specified, which defendant gave to T., an expressman, who handed it to plaintiffs. Plaintiflfs treated it as an order from D., with whom they had dealings, and sent the goods and invoice to him by T., and D. refused to receive them. T. then de- livered them to defendant, who paid T. for them and took his receipt. Plaintiffs remaining ignorant of this transaotioq demanded payment of J)., which he re- fused. Held, Ist That by bringing assumpsit for goods sold and delivered against defendant they waived the tort, ratified the sale by T., and treated him as their agent and payment to him dis- charged defendant. 2nd. That the plain- tiff might have maintained trover against defendant for a wrongful conversion. Dalton et al. v. Hamilton, 1 Han. 422. Signing note — Personal Bills and Notes II. 15. liability. See Authority — When need not be under seal. See Principal and Surety. Service of papers. A person authorized by party to serve, is agent for that purpose. See Action at Law XI. 16, 17. Lea.se — Execution by direction. See Evi- dence IV. 5. Repairs of ship — Owner. III. 45. See Assumpsit Negligence of master of ship — Liability of registered owner. See Shipping I^aw. Master and Servant, adoption of acts. See Assumpsit III. 15. Attorney — Presumption of authority to issue execution. See Attorney V. 4. Husband and wife — Implied authority of wife. See Husband and Wife. Agent binding attorney. See Costs 64. Entry on land by permission of agent. See Trespass II. 34. PRINCIPAL AND SURETY. Bond for faithful service of officer — Proof and notice. See Pleading I. 13. Sheriff— Deputy. See Sheriff. I— Bond— Conduct of clerk- Notice. By the condition of a bond the obligors agreed to make good to the plaintiffs, a Corporation, any loss sustained by the misconduct of K. as a clerk, within three months after due proof thereof either by confession of K. or otherwise, and notice or warning thereof in writing given to the obligors. Held, That a notice from the solicitor of the company to the obli- gors, of the general nature of K.'s default, accompanied by an account of '"ies made by him in the company's a, shewing the moneys received and paid, and a notification that the books were open for the inspection of the obligors, i -iSi IMAGE EVALUATION TEST TARGET (MT-3) 4^ 1.0 I.I 11.25 IAAI21 |2.5 Ui 1^ 12.2 ^ m us -1^ — 6" 1.4 11.6 ^r»!»*' 3 HiotDgraphic Sciences Corporation a3 WIST MAIN STRUT WliSTIR.N.Y. MSIO (716)t73-4S03 ^ 866 PRINCIPAL AND SURETY. PRIVY COUNCIL. was Buffioient proof, and that an affidavit ▼jrifying the accounts was annecesBary. field also, That neither the DAtioe nor the solicitor's appointment need be under the seal of the company. Mei-hanks' Whale Fishing Comminy v. Klrby, 1 AU. 223, S— Bight of surety to recover— Uabil- Ity of prinoqiaL A surety who has been damnified, by giving a security for the original debt which was accepted by the creditor in satisfaction thereof, may recover accord- ing to his loss from (he {Hineipal, upon a declaration stating the circumstances spe- cially, though he has not actually paid the money : as, where he bad become Hable fbr the principal on a promissory K>>>ce, and being sued and unable to pay . amount, gave a bond and mortgage, mi .'a '^he creditor accepted in satisfac- tion of the note. Tritet v. Kellif, Trm. T 18?3. 8-r-rhe prineipal is liabk for the costs of a salt brought against the surety on his original liability; provided ho has not onneeessarily incurred expense in defend- ing the suit. Ibid. 4— Ctontnujt under Beol— Parol ▼arlation. B. entered into a contract under seal, to build a house for the plaintiff according to a plan and specification, and the de- fondant became security for the perform- »nce of the contract The plan of the house was changed in some particulars, by verbal agreement between the plain- tiff and B. without the defendant's con- sent. B. failed to perform the contract in respect to parts of the building in which there had been no alteration. Held, in an action against the surety, That the contract being under seal, he was not discharged at Taw by the parol variation of it. [See Parker v. Watson, 8 Exch. 404.1 Pettrt v. Bryton, Mich. T. 1866. 8— BherifTe bond -^BuMtiae -Defence. The pureties in » Sheriff's bond given under 1 Rev. Stat. o. 131, are not liable for • breaflh of duty committed by the Sheriff afVer the 31st March in the year for whioh they became sureties, though (he Sheriff U continued in office after that time. Berton v. Tiemejf, Mieh. T. 1864. 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 tbem on their bond, may shew that the money was received by the Sheriff after the Slst March in the year for which they became sureties. Berton v. Tiemey, Mieh. T. 1864. 7— Postmaster— Bond to Crown— Belief of Buretiee. One of the conditions of a Bond given to the Grown by a Deputy Postmaster, re- quired 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 Post- master. At (he (ime of his resignation, a Postmaster was a defaulter, and died in- solvent, 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 fiven to his sureties till after his death, [eld, That his sureties were not entitled to be relieved from the Bond under the 33 Hen. 8, c. 39, s. 19. The Queen v. Hammond and another^ 1 Ifan. 33. Action against surety — Principal settling demand — Costs not paid by surety — Judgment entered up for nominal dama- ges. See Blakdee v. Nuskerson, 1 Kerr 623. Deputy Treasurer — Term of appointment — Liability. See Deputy Treasurer. Alteration of position of surety by subso- quent agreement. See Surety. PRIVATE ROAD. Se0 Highway. PRIVILEGE FROM ARREST. See Arrest. PRIVILEGE OP PARLIAMENT. See Arrest. PRFVILEGBD COMMUNICATION. See Defamation 4, 6, 8. Attorney and Clieot. See Evidence VIII. 28. PRIVITY OP ESTATE. See Covenan(. Prohibit The Su (ion t PIoilM bruugli to roco imposot Ni«i R thciVu 2 All PRIVY COUNCIL. API ;>p«al to— Time. ■ An appeal to the Queen in Coaneil, undor ■ See Bills PROMISSORY NOTES. PURCHASER. SST the order of November 1852, from a judgmeot of this Court affirming a dc oree in equity, may be apyliod for within fourteen days after the minutes of the decree are settled, though more than fourteen days have eUpsed since the judgment was pronounced. BrookJUhl V. The St. Andrew$ and Quebec Railway Co., 4 All. 496. Judge's order— Leave to appeal. The order of a Judge made in vacation granting leave to appeal to the Qnoen in Council, and settling the terms on which the appeal will be granted is final, and cannot be revised or rescinded by the Court (Allen J., dull f ante.') Domville V. Kevan, 2 Han, 175. Orders in Oounoil. See 4 All. page 497, being orders passed 27th November 1852, at the Court at Windsor, and referred to in above case of Brookfield t>. the St. Andrews and Que- bec Railway Co., and appended to said case. PROBATE (COURT.) See Executors and Administrators. " Surrogate Court. PROCEEDINGS (SETTING ASIDE.) Bee Practice VI. PROCEDENDO. See Practice VI. 46. PROCESS. See Practice IV. Regular on face, a justification to officer. See Trespass V. 7. PROHIBITION. Pro^bition to restrain suit. The Supreme Court will grant a prohibi- tion to restrain the Court of Common Ploits from proceeding in an action brought iigaiust the Clerk of the Circuits to recover money paid to him as a fine imposed on the plaintiff by a Judge at NUi l*rim for a contempt committed in the NUi Prim Court. I!m parte Allen, 2 All. 424. PROMISSORY NOTES. See Bills and Notes. PROPERTY. ■^ee Delivery. '' "'esting of — Hired men — Claim See Tim- ber 2. PROTEST. See Bills and Notes — Insurance. PUBLIC AGENTS. See Principal and Agent. PUBLIC OFFICERS. Liability-^Commlssioners of sewers- Commissioners of sewers are not liable to actions fiir work and labor upon the com- pletion of the work, at the suit of persons employed by such commissioners in their public capacity, unless they personally bind themselves to make payment. Peck V. Robinson, 2 Kerr 687. Prima facie persons doing work under con- tracts with commissioners of sewers, are presumed to look to the mode of payment provided by the Act of Assembly 10 and 11 Geo. 4, c. 29. Ibid. Qurnre, Whether oommissionen of sewers would be liable to an action if they neg- lected to make the assessment required by the Act? Ibid. Qtitere, Whetner a supervisor of great roads is personally liable upon contracts made in that capacity ? See Wheeler v. Hajfward, 1 Kerr 657. Enforcing contract — With public officers. See Mandamus 5. Trying right to exercise office. See Quo Warranto. Clerk of House of Assembly — Liability for contract. See Assumpsit III. 43. PUIS DARREIN CONTINUANCE. See IMunding II. 31, 32 -Practice VI. 40, 40 a. PURCHASE. Agreement to purchase land. See Tenant at Will. For sale and conveyance. See Tenant for Years. PURCHASER. See Vendor and Purchaser. " Sheriff's dale. Consideration. See Deed, :iy:i m m ■HP 358 RAILWAY COMPANY. REBUTTING EVIDENCE. Of Equity of Redemption by Mortgagee. See Mortgage 17. •'^^ - QUANTUM MERUIT. See.Assuinpsit III. (2. QU/^J^TP^ MASTER. See Alien, ■•••iii' -i ■■. QUIET ENJOYMENT. Breach of Covenant for. See Covenant. QUO WARRANTO. See Certiorari. Bight to hold office. When a person elected a City Connoillor has entered upon and ia exercising the oflSce, a quo warranto is tlie proper mode of trying hia right to it. £x parte Cameron, 1 Ifau. 306. Withholding material fiuits. Where a party applying for a quo war- ranto, improperly withheld material facts, which ought to have been stated in his affidavit, the rule was discharged with costs. Ex parte Gilbert, Ilil. T. 1873. RAILWAY. Assessing value of land Mandamus 6 a. Common Carrier. See Assessment, See Carriers. RAILWAY COMMISSIONERS. See Damages — Assessment. " Joint Stock Company. RAILWAY COMPANY. Authority to out down the level of street— PlaintifPa acquieioenoe. The Act 33 Vic. c. 39, incorporating the "Carleton Branch Railway Company," authorised them tolooato luid construct a railroad from deep water in Carleton to the E. & N. American lluilway, invest- ing thoni with all the powers and privi- leges necessary for the purpose ; among others, the right to purohuso, take and hold 08 ntuch land as might be necessary for the loobtion and construction of the railway ; provided, that !in all oases they should pay for the land etc. taken and used. The 12th section of the Act au- thorised the company " to run their line of railway through and upon any of the streets, wharves, places^ or squares," as also through all anleased lands belonging to the City of St. John. In making the railway, a contractor under the company, cut down a street in Carleton, on which the plaintiff's house fVonted, to a depth of about twelve feet, rendering the ap- R roach to his house difficult, and material- / injuring the value of his property. The plaintiff had been employed as a laborer by the contractor, ana worked on a part of the street so out down. Held, Ist. That the 12lh section of the Act gave the Company no authority to cut down, or alter, the level of the street; 2pd. That the plaintiff, by having work- ed on the street, Tas 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 T. The Carleton Branch Railway Com- pany, Mil. T. 1873. Killing cattle — Liability. See Negligence 4. RATE. See Assessment. RATE PAYER. See Bastardy — Vote. RATIFICATION. See Crown Grant 1. 18. " Principal and Agent. " Warrant of Attorney. READINESS AND WILLINGNESS. Averment — Proof See Pleading I. 27. REAL ESTATE. See Heir at Law. Execution — Testator. See Execution IV. 18. REASONABLE AND PROBABLE CAUSE. See Malicious Prosecution. " Treipau V. 10. <* Criminal Law I. 8. REASONABLE TIME. Dissent — Partition. See Partition. REBUTTING EVIDENCE. See Evidence. RECOGNIZANO]!:. REGISTRY. 359 RBCEIPTi Application tp set asidq. 800 Prao.fa|i(»,yi. Written receipt aigned by mortgagee is not nduiieaible in evidence to prove pay- ment of rent to him as agunst the mort- gogor. JopUn v. Johnaton, 2 Kerr 541. Attorney proceeding in action alter receipt giTen — Contesting flftcta. Where a motion was made to set aside the verdict and proceedings for fraud and irregularity, and requiring the plaintiff's attorney to answer, on the grounds that the action had been proceeded in and the ver- dict obtained aiter the plaintiff and de- fendant had settled, and that the plaintiff had given a receipt in full, and had noti- fied hia attorney to discontinue the action ; and the motion was resisted by affidavits, controverting thoee in support of the motion, and among other things stating that the cents remained unpaid, as also £14 19b. of the debt, that the defendant had procured the receipt by fraud in making the plaintiff intoxicated, as ap- peared by two witnesses ; and upon these grounds the attorney of the plaintiff, by his directions, had notified the defendant s attorney he would proceed to trial Held, That there was no misconduct imputable to the plaintiff's attorney in proceeding in the action, as the r^aintiff had a right to contest the disputed facts before a jury. Moran v. Oallagher, 1 All, 24. RECITAL. See Registry — Crown Grant. RECORD. See Pleading II. 23. Courts of. See Justice of the Peace I. Debt of 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. 16. Entitling. See Practice XIV. 12. Highway— Record of— Necessary statement, See Highway 18, 31. RECOGNIZANCE. See Butardy. Irregular to make iatad file a recogdiiance roll until special bail piece be on file to warrant it O'.Cosnor v. Molt, 2 Kerr 509. Becogniaanoe for proaeoution of elec- tion petition not a record. A recognisance entered ititb for the pro- secution of an election petition heforie the House of Assembly, under the Rev. Stat, c. 98, and cortified to the Supreme Court by the Speaker as forfeited, is not a re^ cord; and in scire facias on such a recognizance with an averment prout patet per reconlum, to which the defend- ant pleaded nul tiel record, the productibn of the recognizance so certified from the files of the Court does not prove the isaue. The Queen y. Sparrow et a/., 1 Ban. 239. RECOGNIZANCE ESTREAT. ■ Relief. See Supremo Court. Application for relief— Exouie. Application to be relieved from a recog- nizance to appear and give evidence on a prosecution for felony refused — the only excuse for non-attendance being, that the Earty was in ill health, and expected to e sent for by the (yrown officer. Reg. V Gerow, Mich. T. 1863. RECTOR. See Church of England. " Trespass I. 8. REFEREES. Settlement of accounts by — Agents. See Principal and Agent 13. REFERENCE. See Arbitration. REFUSAL TO ADMINISTER OATH. See Mandamus 13. REGISTRY. Non-registry of Nova Scotia grant. See Crown Grant I. 16. Of deed — Avoidance of lease. See Land- lord and Tenant y I. 1. C.'tregistered ship. See Shipping Law 6. Mortgagee in fae. Estate cannot pass without enrolment or registry. See Dos d. Bumham v. Watts, 2 Kerr 441. m nl \\!'.'l 360 RELATION. RELEASE. Registry and acknowledgment without de- livery. See Evideuoe II 9. Certificate of acknowledgment without re- gistry. See Evidence II. 11. Of mortgage, not notice of incumbrance to subsequent purchaser. See Doe v. Power, 1 AU. 271. Unregistered conveyance, operating as re- lease. See Deed I. 20. Memorial of judgment registered evidence of an incumbraaco on land. Scott v. Gamett, 2 All. 624. Registry of deed without previous prooi" — Operation. See Deed 1. 22. Deeds on same sheet — Registry book ad- mitted in evidence. See Deed I. 23. Registry of deed before lease — Operation. See Deed V. 12. Registry Book beat evidence of rcgutry. See Deed V. 13. Subpoena to prove registry. See General Rules 126. Registry under Medical Act. See Plead- ing I. 56. REOISTERET) OWNER. Liability. See Assumpsit III. 45. REGISTRAR. See Judicial Notice. RELATION. 1—Oonyeyuioe—Begiatry— Delivery of deed. A conveyance of land, registered under the Act 26 Geo. 3, o. 3, conveys the es- tate, by relation, from the time of the delivery of the deed, unless in the moan time another conveyance has obtained priority. Dof. dem. Bridget v. Quint, Eatt. T. 1828. 2— Judgment— Signing— Intermediate Oonyeyanoe. The title conveyed by a Sheriff's deed, to land sold under an ezvoution 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 sign- ing the first judgment, so as to defeat a conveyance made by the judgment debtor between the times of signing the first and aeoond judgments. Doe d, Ptubodjf V. McKnijfht, Ber. 370 8— Begistry before proof. A conveyance of laud, appearing by the certificate indorsed, to have been register- ed before it was proved by the subscrib- ing witness, does not operate as a regis- tered deed by i-elation from the time of the proof. Doe dem. Blair v. Ri»Uout 3 AU. 502. 4— Orantor and gxanteo— Delivery of deed— Third party. As between the grantor and grantee, the registry of th« dned transfers the title and possession by relation from the de- livery of the deed ; but it will not affect the intermediate rights of third parties, not privy to the deed. Patlonun v. Tingley, Trin. T. 1863. 6— Foiseasion— Subsequent Begistry. In trespass qu. cl. freyi't, for cutting grass on the 3l8t July, the plaintiff provud possession only ; the defendant justified 08 owner of the land, under a deed dated the 15th July, but not registered till the 1r>j August. Hold, That as against the tintiff, the defendant had not title by k jlatiou from the date of the deed. Ibid. 6— Execution— Memor ial— Begistry. A judgment was re-covered against C. and a memorial thereof registered in January 1863 ; in April 1863, laud wus conveyed to G., which he oonveyt^d to the defendant on the same day ; in 18G5, an execution was issued on the judg- ment against C, under which the land so conveyed to him, was levied on aud sold by the Sheriff. Held, That the execution hud relation back to the regis- try of the memorial, and defeated the conveyance to the defendant. Doe dem. Solomon V. Graham. Doe dem. Kerr v. Jamieson, Trin. T. 1871. Trespass — Possession — Subsequent deed. See Trespass II. 15. RELEASE. Fraud — Sotting aside. See Practice VI. 40. Action by executor — Release by parties be- neficially interested — Discharge of debtor. Sec Discharge 1. Pleading Puis Darrein Continuance— Set- ting aside. See Practice VI. 40, 40 (/. Release pleaded — AppUcation to set nsidr plea aud roloaso. ^ eo Practice VI. 40. Release by hosbant... See Husband and Wife. REMAINDERMAN. REPLEVIN. 361 Release by partner. ISee Nev Trial III. 34. Authority of partner. See Partnership 8. Latent ambiguity— Svldenoe— Inten- tion. In an action on a promisoory note for 985, given by the defendant to plaintiff's testator, the defendant relied on a release ([;iTen to him by the testator, of the same date as the note, and one of the consid- erations mentioned in the release was a sum of $85. The note had been given for money in the defendant's hands be- longing to the testator, after allowing defendant a certain sum for collecting. Held, That the ciroumstanoes created a latent ambiguity in the release, and that evidence was therefore admissible to shew whether the note was intended to be re- leased or not. CcUdweU v. Keith, 7Wn. T. 1863: REMANET. Sco Judgment as in Case of Non-suitl. 2, 4, 5. A cause can only be made a remanet by order of the Judge at Niri Prita. iikq>- herd V. Hallet, I Han. 43. REMAINDER. Soe Deed I. 25. Will 11. " Half Blood. Real estate in remain:^er may be taken in execution. See Doe v. Hazen, 3 All. 87. Trust— Termination of— Teitator'a children. A testator after directing that so much of his estate as was necessary, should be 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 wife during her life or widowhood, and to pi^ her the income thereof; 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. Drii- cott, 4 All. 176. REMAINDERMAN. The tenant of a devisee for life may, after the death of such devisee, be ousted by the remainderman without any notice to 46 quit. Do^d. Fielih v. McKay, 2 Kerr 435. Setting up adverse possession against See Ejectment I. 3. .>:.^ REMEDY. See Action at Law. Suspension of — Taking security. See Judg- ment I. 2. RENDER. See Bail— 'Exoneretur. RENEWAL. See Covenant 8 — Landlord and Tenant 1. 3. RENT. -J rit fa!MJiai See Landlord and Tenant REPAIRS OF VESSEL. Detention — Deviation. See Insurance 34. Liability for. See Shipping Law. REPLEADER. See Error (Writ of). REPLEVIN. 1— Action— Owner of land— Timber out. Replevin lies by the owner of land, for timber out upon^ and taken away from it; and the proceedings will not be set aside, although the party taking the timber claims title to the land on which it was cut; and, Sembk, That replevin can be maintained -./herever trespass will lie for taking chattels. Itjfon* v. Ooram, Mich. T. 1831. 9— AotUMl or oonstruotiye taker. If replevin is brought against one, who is not actually or constructively the taker of the goods, the writ will be set aside. (But see 1 Rev. Stat. o. 126, s. ».) Qrovet V. Griffith, Trin. T. 1833. 8— PoMOMion 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. Wiggint v. Garriton, Ber. 17. 4— Issues-;deparate findings- Postea. In replevin, where some of tbe issues are found for the plaintiff, and others for the defendant, eaon party is entitled to the costs of the issues found in his favor, 'f he pottea was ordered to be given to Mi 362 REPLEVIN. tbe plaintiff for a certain time to enter the judgment ; and In case of his n^Iect- ing to do 80, then to the defendants ibr the like porpose. Dfckfimn y. S^^tchjftn, -Be''-63. .,.i ,.:.;;,.; 1,;; J A— OatstancUiiB iiiorl»ge^Aii0wer. Thongh in repTevin both parties are actors, the plaintiff is not prevented by 1 Rev. Stat. c. 112, s 17, from setting up an outstanding mortgage given by the per- son under whom the defendant claims, in answer to a plea of property in the land on which the grass replevied was out. Baxter y. Johnston, Trin. T. 1862. e— Damans— OonnMl fees. The plamtiff in replevin oannoc recover as part of bis damages an amount paid to counsel attending on the execution of a writ de proprietate probanda,, issued on a claim put in by the defendant: the payment of counsel fees being deemed voluntary. Davit v. CusMny, JUich. T. 1863. 7— Pleading— Waiver. Defendant in replevin pleaded non cepit, and gave notice that the goods were the property of A., no objection was made that this defence was not pleaded, as re- quired by the Act 13 Vic. c. 32, and both parties went into evidence of property. On verdict for the defendant — Held, That the plaintiff had a right to waive the pleading of the deiSence; and not having taken the objection at the trial, the Court refused to set aside the verdict. Wilbur V. TrUet, Mich. T. 1863. 8— Issue of writ de proprietate pro- banda— Begularify. A writ of replevin was returned by the Sheriff to Uie plaintiff's attorney with a elsim of property : the attorney's olerk, in hia abunce, issoad a writ de proprie- tate probanda. Th« attornepr gave notice to toe Sheriff that this writ was issued without his authority, and that he should not proceed on it, but the Sheriff, not- withstanding, held the inqutsition. Held , on an applioation to set aside the inquisi- tion, th^ft the writ de proprietate proban- da WdS rightly issued, and if the plaintiff was not prepared for the trial of the inquisition, he should have applied to the Sheriff to postpone it. Jone$ v. Gate, Mich. T. 1863. 0— Fleadii^t— dpeoial Property. In replevin for s pair of oxen, defendant plei^ded— Ist. Property in himself; 2nd- Property in A. Plaintiff replied that the oxen we : not the property of A., but of himself. Before the taking, the idaintiff had niortgaged the oxen to A., who agreed that he should keep posses- sion of them till the mortgage was due. Held, That the special property of the plaintiff was sufficient to maintain reple- vin; and that the replication did not necessarily mean that the plaintiff had the absolute property. Bleton v. Vance, Mich. T. 1863. 10 — In replevin for a vessel, defendant pleaded — 1st. 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 de- fendant's }>roperty; and the defendant swore that it belonged to B., who was not called as a witness. 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 prsons named in the pleas. Th^ jury having found for the plaintiff, the Court refused a new trial, though the plaintiff had no title. Clarice v. Casey, Mich. T. 1864. 11 — Defendant in replevin pleaded property in himself. He had assigned all his pro- perty to trustees for the benefit of his creditors, but kept possession of the goods in question, and the trustees did not know of their existencoi Held, That the general proper^ in the goods passed to the trustees ; and, as there was no plea of property in them, the plaintiff was enUtlea to recover. Mcintosh v. Hasf- ingt, Ha. T. 186&. 12— Pleading— Proof. In replevin, the defendant pleaded pro- perty in himself, and P., (without any plea of nvn cepit.) The property was owned by the jmintiff 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 ver- dict, it must be shewn that there was no property in the plaintiff. Godard v. Twk, HU. T. 1865. 13— Damaoes. 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. fHr^ V. FUapatriak, Uil T. 1866. REPLEVIN. 363 14— Pleading— lasne. Lumber, seised as having been cut with- out license, was replevied out of the pos- session of the seising officer within four- teen days : he appeared to the action, and pleaded — 1. Property in the Crown ; 2nd. That the lumber #aa lawfully is his possession by the seiture. Held, That he could not, on the trial of the issues, raise the question whether replevin would He for lumber so seizied ; and that unless the plea.^ were proved, the plaintiff must recover. DesBritajf v. Little, Hil. T. 1866. If replevin is improperly used, an applica- tion should be made to set aside the writ. Ibid. 15— FrooeedingB— TrMpasaer ab initio. Defendant, an officer appointed by the Canadian Qovernment for the protection of the fisheries, seised a vessel belonging to the plaintiff in the harbor of Gaspe, in the Province of Quebec, on the 18th August, for ao alleged breach of the Act relating to fishing by foreign vessels, (31 Vic, c. 61) and on the 22nd August brought the vessel to the port of Shediac, in the Province of New Brunswick, but did not deliver her to the Collector of Customs there. The Act directed, that vessels seised, should be -' forthwith de- livered to the Collector, or other principal officer of the Customs at the port nearest the place where seised." There was a Collector of Customs at Gaspe, and at several other ports nearer than Shediac. No proceedings having been taken to- wards the condemnation of the vessel, the plaintiff replevied her on the 5th September. 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 became a trespasser ah initio, and that replevin would lie. Per Fisher and Wet- more, J. J., That by the seisure, the vessel was in the custody of the law, and therefore replevin would not lie. Mc- Gowan v. Betta, East. T. 1871. 16— Setting aside writ— Summary motion. The Court will not set aside a writ of replevin, on a summary motion unless in a clear case. Where there was some proof of property and possession in the plaintiff, and to connect the defendant with the taking, the Court refused to interfere. Clif v. Ountrr, 2 Kerr 493. 17— Termination of »uit— Awrignrtiwnt of bond. Where on a writ dt proprietate probanda, the finding is fbr tne defendant, the re- {{leviA siiit is terminated, and the replevin bond cannot be assigned to the defendant. PoUok V. Gardner, 2 Kerr Gbb.r i^^ ... ''i' 18— Plea— Won oepit. In replevin on the plea of noii cepit proof that the defendant had the goods at the place alleged is sufficient to entitle the plai ntiff to recover. JUcLeod v. McMillan . 3 Kerr 64. 10— Pleading— Kistake—IieaTe to with- draw plea. A defendant in replevin, elaiming the goods under a sale and delivery from A. an alleged partner of the plaintiff, pleaded by mistake, that at the time Of the taking, the plaintiff had no property in the goods except jointly with A. ; leave was given to withdraw the plea and plead property in himself, on payment of the costs occasioned by his mistake: the Court rejecting a motion made on behalf of the plaintiff for leave to discontinue the replevin suit without paynent of costs, and to order the replevin bond to be cancelled. Rourke v. Keogh, 1 All. 870. 20— Plaintiff's right— Property- Mixture, The plaintiff being the licensee of Crown laud, agreed to allow A. to cut logs thereon to be manufactured into deals, and to furnish him supplies to carrv on his lumbering, which were to be paid for in deals of a specified quality, delivered to the plaintiff at Ricnibuoto. Held, (Street, J. diitentiente,) That no propertv in the deals when cut, Vested in A. until it was ascertained what portion of them came within the description the plaintiff was to retain, and therefore that the plaintiff might replevy the whole of the deals from the defendant, to whom A. had delivered them before they arrived at lliohibucto. Held also, That the defendant having mixed with these deals others belonging to himself, which he refused to point out and whieh could not otherwise be distinguished, did not de- prive the plaintiff of his rig^t to replevy. DetBritay v. Mooney, 2 AU. 63. Held, per Street, J., That under the agree- ment, the property in the lumber was in A. until delivered to the plaintiff, and that the Judge ought so to nave directed the jury ; ana that the plaintiff was not I m': k 361 REPLEVIN. entitled under the cir^amataneeB to re- plevy the lumber from the defendant. DesBri$ay v. Mooney, 2 All. 53. 81- Breach of bond— Claim of goods- Name. ' If a defendant in replevin claims pro- perty in part of the goodn replevied, and the property is found in him on an in- quisition under a writ /]-,„, " Criminal Law II. 10. *^ j.mj' t.i<; .ii)()i»iirp REVENUE ACT. v. See Criminal Law I. 9. Under the Provincial Revenue Act 3 Vid. e. 1, rum not being of the proof of twenty-six by the bubble is not liitble to the specific duty thereby imposed ; the words of the Act being unambiguous, the known intent of the Legislature to impose the duty cannot be regarded. Hammoiul v. Robitimn, 2 Kerr 296. By the Act 11 Vic. c. 67, " no spirits shall be imported into the Province in casks of less size than to contain one hundred gallons, or in other than decked vessels of not less than thirty tons register ; and all spirits imported contrary to tho pro- visions of tho Act, or that may be found on board any vessel of less than thirty tons register, in casks of leas size than to contain one hundred gallons, within the limits of any port of entry in the Province, shall be seized and forfeited," etc. Held, That spirits in casks less than one hun- dred gallons were liable to forfeiture, though the vessel in which they were imported was over thirty tons register. Attorney General v. 20 Ua»k» Spirits, 2 AU. 467. REVENUE OFFICER. See C;:iminal Law I. 8. REVENUE LAWS. A vessel fraudulently landing goods by meons nf boats, shall be legally intended to hiivu oouie into port under the revenue laws. Statutes relating to the revenue nro not to bo couBtrued as Penal Acts in proceedings against persons for smuggling goods into the Province. Attorney Gen- eral V. Patterton, C. Ms. 16. REVERSIONARY INTEREST. Plaintiff 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 tho lease. Held, That tho plaintiff had no absolute 36( RIGHT TO BEGIN. SAINT JOHN (CITY OP). reTenionary interest in the cattle, and could not maintain an action on the case against the Sheriff for selling theoi under an execution against T during the term. Good V. Wintlow, 4 AU. 241. '" ' REVESTING PROPERTY. Sea Shipping Law 6. ''^.>t' Party obtaining order for review has the right to begin at the hearing. Same case. Proceedings by review not applicable to Civil Court of Town of Portland. See Porthind (Town of.) Review of Judge's order. See I*ractice V. 6o. Taxation of costs. See Costs. REVOCATION. See Executors and Administrators. " Arbitration. Of provisions in will. See Contract 14. RIGHT OF ENTRY. See Deed I 25 — Limitation of Actions RIGHT OF WAY. Presumption of — Lost deed. See Evidencu VL 12. Deed — Construction. See Deed V. 4. RIGHT TO BEGIN. Beplevin. Onus of proving property as stated in the pleas is on the defendant and he is bound to begin. Graham v. Wetmore, 4 AU. 373. Proceedings on review from Justices' Court. See Practice XIV. 2. ,:y:- .'i RIVRR. Highway — Obstructing — DankUge. See Action on the Case IV. Grant bounded by river conveys no title betow high water mark. See Crown Grant I. 13. Wharf built on navigable river. See Action on the Case IV. 3. Erection of davi — >Right to destroy. See Water Course. See Highway. ROAD. ROYAL INSTRUCTIONS. See Crown Grant III. 2. RULE FOR BODY. See Practice VIII. 5. RULES OF COURT. See General Rules — Appendix. Rule of Court not a record. Watton v. Roberts, 3 Kerr 509. Judge's certificate cannot bo made a rule of Court. See Judge IV. 7. RULES— PRIVY COUNCIL. See Privy Council. SAINT JOHN BRIDGE COMPANY. See Joint Stock Company. SAINT JOHN (CITY OF). Under the Charter of the City of Saint John, the fine imposed upon a penon carrying on trade within the city without having been admitted a freeman, is re- ooveriuble before the Mayor, though the warrant to levy the fine must be under the common seal of the city. Regina \. SmaU, 1 Kerr 48. Judgment by default — Particulars — Proof — Practice. See City Court. Power to make Pilotage Regulations. See Pilotage. Corporation of Saint John-^Limiting power to make bye-laws — No right to ao so. See Bve-Law 5. SCIRE FACIAS. SEAL. 867 SALARY. Liability of Committee for salary of preacher. See Credit. -ii.(HE(I SALE. See Sheriff's deed — Vendor and porohaaer. Cancelline sale — Revesting of property. See Shipping Law 6. Agreement for sale of stranded ship — No property passing. See Shipping Law 7. Notice of sale by poeteraand advertisement. See Executors and Administrators V. 2. Plaintiff purchasing at a salo under decree. Sec Equity 10. Purchasing equity Mortgage 17. of redemptfion. See Actual Delivery. See Delivery. Land— Identity— Evidence. 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 Eaper, that he could not sell " property," ut 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 H. had conveyed to him the equity of redemption in a certain property. Held, That this sufficiently identified the property refer- red to in the agreement; though, if necessary, parol evidence was admissible to shew what property the agreement re- lated to. I\i»ley V. Gilletpie, Mich. T. 1872. SATISFACTION. See Suspension. " Accord and Satisfaction. Entry of, of Judgment. See Sheriff's sale 2. See Trespass Judgment against Sheriff. in. 6. Taking bill of exchange for debt. See Bills and Notes V. 29, 30, 31. See Judgment LI, 2. After one judgment satisfied, it is too late to be set-off against another. See Set-off 7. SCIRE FACIAS. See Practice IV. 3-9— VI. 48. Every writ of wire fadat should state the particular eircumstanoe which entitle the party to the remedy sought to be obtained. Any matter which might have been pleaded in the origiiH^I action cannot be pleaded to an ordinary sctreyacuM under the Statute of Westminster. A ^rty can only have judgment prayed for in his . 14— JTudgpnent in Inferior Oonrt— Benefloial intereat. Semble, The Court will allow a judgment 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 person ; the de- fendant in this Court having the sole beneficial interest therein. Ibid. Corporation — Rent. See Corporation 16. No appropriation towards payment. See DUb and Notes V. 17. Defendant cannot prove his sot-off in plain- tiff's case — Otherwise with payment. See Evidence VIII. 7. Nd notice of set-off. See Assumpsit III. 50. Set-off, after offer to suffer judgment by do- fault — Costs. See Judgment II. 6. SEVERAL COUNTS. See Practice I. 4. — Pleading. SEVERAL ISSUES. See Costs 74, 101. Poitoa on. See Replevin 4. SHARES. AaaessmcDt on — Note for, may bo given. See BilU and Notes II. 9. SHERIFF. 1—Appomtment— Continuance in oflSoe. The plaintiff was appointed Sheriff of \V. in May 1849, and received a coniniiggioD giving liim the office until the first Tues- day in April then next, " and from that time till another fit person should be ap- pointed and sworn into said office." Up- on his appointment he appointed H. hi» deputy, taking a bond with sureties to indemnify him against any misconduct of H. during the time he might continue such deputy. The plaintiff was continued in office till March 1856, his appointment being notified annually in the Royid Gazette and new bonds given, as required by the Act 6 Wm. 4, c. 1, but no new com- mission was issued to him. The appoint- ment of H. as deputy was notified in the Gazette annually, till January 1856, when he was dismissed for misconduct. Held, That the plaintiff's tenure of office did not expire in April 1850, but that he continued to hold under the commission, notwithstanding the annual notification in the Gazette ; that the deputation to H., not being limited by his mnd to any particular time, also continued till his dis- missal ; and that his sureties were also liable. Bots/ord v. Henderson, 4 All. 616. a— Trial of right of property— Wot judicial duty— Deputy. The duty of the Sheriff on the trial of a claim under a writ de proprietate pro- banda, is a judicial duty, and may there- fore be performed by the Deputy Sheriff, The Sheriff may conduct two inquiries at the same time by his deputioa. Crane, V. Adam*, 4 All. 59. 8— Levy— Two executions- Poundage. Where the Sheriff levies under two exe- cutions, but the sale docs not produce enough to satisfy both, he is only entitled to poundage on the second execution ac- cording to the amount applicable to it after satisfying the first. Wetmore t. DesBrisay, 4 All. 199. 4— Bzecution creditor purchasing goods. Where nu execution creditor purchases goods at Sheriff's sale, with the know- lodge of the Sheriff that the purchase is made in order to satisfy his execution, and the goods are delivered to hiui by the Shoriff without any demand of niiy- ment, the Shoriff cannot rooover iroiu SHERIFF. 871 liini the price of the goods. Df-slirisay, 4 AU. 199. Wetmore v. 5— Indorsement on writ— Evidence- Costa Quxre, Whether the indorsement on a writ by the Sheriff of his fees for the service of it, is not conclusive of the amount in the taxation of costs. Atkin- son V. McAuley, 4 AU. 265. 6— Suooeeding Sheriff— Rule. A Ji. fa. was put into a Sheriff's hands, under which he levied on real estate, which was sold in April 1859. The Sheriff went out of office a few days before the sale. A rule calling upon hiui to handover the^./u. to the present Sheriff, moved wore than six months after his (;oing out of office, was refused Levy V. Latoson, 4 AU. 501. 7— Poundage— Bicflit to exact. The defendant being in gaol on a ca, sa. offered bail fur the limits to the Sheriff, who refused to take such bail unless the defendant paid or secured, in addition to the usual gaol fees and charges for the limit bond, a certain sum for poundage on the demand for which the defendant was in custody, whereupon one of the bail gave his promissory note to the Sheriff for his poundage. Held, That the Sheriff had no right to exact such a note for poundage, or to claim anv poundage on the execution under such circumstances. Rohertt v. Watson^ 3 Kerr 414. 7 ((—Two executions for £6000 each, ugainst the same defendant, — one at the Huit of the present defendant individually, — the other, at his suit as executor of S. — were delivered to the Sheriff on the same day, with directions that the first- named execution was to be first satisfied. The Sheriff levied under the executions and was afterwards directed by the attor- ney to abandon the levies, and return the executions nH^/d&ona; which ho did, indorsing thereon his fees for poundage and expenses. In an action by the Sheriff to recover poundage on £3000, as the amount of a compromise of the second execution made by the judgment creditor with his debtor, there was no distinct evidence of such a compromise ; but, on the Sheriff applying for payment of his fees, the defendant (the judgment credi- tor) stated that he was about making an arrangement with the debtor, and as soon iM it wos done, he would settle the plain- tiff's bill: on another occasion, he stated, that he had received £9000, of what he was contending fur against the debtor. Held, in the absence of any evidence by the defendant of what comproniise he had made, That the jury were warrant- ed in inferring that the two suits had been compromised fur £9000, of which £6000 were applied to satisfy the first execution, leaving £3000 fur the latter, and therefore the plaintiff was entitled to recover poundage as on a compromise to that amount ; though it was probable, under the evidence, that ht to fees— Service of writs by other party. Where an application was made under the Act of Assembly 6 Wm. 4, e. 1, ss. 11, 12, by a Sheriff against an attorney, to compel him to pay the Sheriff's fees in certain suits in which the writs had not been served by the Sheriff. Hold, That the Court could not order money to bo paid to the complainant for which he had performed no service. Drury v. Uom-y 3 Kvrr 588. *i I' I :!' 372 SHERIFF. 10— Kiaoondaot— Sheriff's ofSoer— In- Siiry into. arge a^iust a Sheriff's officer of luisconduct in selling property under exe- cution, cannot be exuuiined in an appli- cation to set aside the judgment HanJy V. Prince, 3 All. 264. 11— Uabilitsr—lVonHUTeBt— Damage. A Sheriff is not liable to an action for neglecting to arrest a party on meme process, unless the plaintiff has snstuined some damage by his neglect. Oiirran v. Beckwith, 3 AU. 365. If the debt for which the process issued is barred by the Statute of Limitations, the Sheriff is not liable for neglecting to exe- cute ; and he may give such a defence in evidence under the general issue. Ibid. 12— Duty— Return of writ. A Sheriff is bound to return a writ de proprietate prohanda, though executed by nis deputy without his express autho- rity. Armstrong v. Brown, 3 All. 399. 18— Prisoners— Delivery— New Sheriff — LiabiUty. If the prisouers be delivered over by the old Sheriff to the new within the gaol, with the writs under which they are detained, and the new Sheriff does not require an indenture, he shall be charge- able in case of an escape after such de- livery. Power V. Johnson, 2 Kerr 43. An execution bearing teste on the day it is issued in vacation, upon a judgment en- tered up as of the preceding term , although irregular, is not, since the Act 5 Wm. 4, 0. 37, B 10 and 11, a nullity. Held therefore. That the Sheriff was liable for the escape of a prisoner who had been arrested on a ca. mi. so tested (Chipman, C. J., dubitante.) Ibid. 16— Poundage—Attorney's liability. Where a defendant was arrested on a ra. 8a., and discharged under the Insolvent Confined Debtors' Act, without any part of the money being paid, the Sheriff is not entitled to poundage on the amount of the execution, under the ordimmcc of fees; but he is entitled to his fees for executing the writ, and both the plaintiff and his attorney are liable therefor. A''r- vanagh v. Phelon, 1 Kerr 472 17 — The plaintiff's attorney is not liable to the Sheriff for poundage on an execution, unless he receives the amount frnui the defendant, though the defendatit has escaped from the limits, and his bail have paid the debt and costs to the attorney. Ualdwell V. Badger, 2 AU. 516. 14— Serrices- No authority from She- riff— Recovery of fees. UndiT the Act of Assembly 6 Wm. 4, c. 1,8. II, a person serving processes di- rected to the Sheriff, but without any authority from him, w precluded from maintaining any action for his services. Uerrimjton v. Lugrin, 1 Kerr 109. 15— Prooeedings against— Mode. Until the general rule of Hil. T. 4 Vic, the mode of proceeding against an ex- Sheriff for not bringing in the body of a defendant, was by diMringu*, and not by attachment, though the practice is other- wise in Knglaiid. llenr^ v. Murjdiy, 1 A'err 207. 18 — Action — Form— Refusing Debtor the limits. Case, «nd not trespass, is the proper remedy against n Sheriff for refusing to give a confined debtor the benefit of the gaol limits. Caldwell v. Wimlow, 2 All. 203. 19— Farting with goods— Remedy. If the Sneriff has crted with goods which he had levied on under an execu- tion, he cannot be called on to sell under a venditioni exponan : the remedy against him is by action. Phillips v. Divluiuon, Trin. T. 1831. 20 — Action of debt does not lie against a Sheriff for an escape. See British Statutes. 21 — Special Bailiff— Appointment at request. If the Sheriff appoints a special bailiff to execute a writ, at the request of the plaintiff, who himself takes charge of the writ and deputation, which do not again come to the Sheriff's hands in the regular course, the plaintiff cannot rule the Sheriff to return the writ. Kingston v. O'^'Aca, 1 All. 678. If a sido-bar rule to return the writ is taken out under such circumstances, it niiiy bu set aside with costs ; but if not set attido, no attachment will bo granted agaiust the Sheriff for disobeying it. Ibid. 22 — Defence — Justification- Replevin. A Sheriff cannot justify the takingof goods mentioned in a writ of replevin if liu take them from a third person who w nut named in the writ. Wiggins v> Ourrisun and Wood, Ber. 17. SHERIFF'S DEED. 373 23— Altered fieri fiooias. lu tin iictiou of trespass agaiDst a Sheriff for takin<; goods, bo cannot justify under an n.h.ored Jieri/ticms rc-issued as an alius. Johnston v. Winslow, Ber. 53. 24— Remedy against attorney. A Sheriff who sustains damage by pro- ceeding under an improper writ given to him by uu attorney, has his remedy over against such attorney. Ibul. 25 — Omission to advertise and sell. If a Sheriff levies ou real estate and omits to advertise it, and returns ou the execu- tion, that " the lands remain unsold for want of buyers " — this is a breach of his duty, and a false return. It is the Sheriff's duty to advertise and sell under ihQfi.fa. and not to wait for a vmititfoni exponas. Jarvis v. Miller, Ber. 191. 26— Surplus from sale— Proceeds - Appropriation. A Sheriff has no right to apply any sur- plus remaining in his hands from a sale under a prior execution to oue received after such sale. Stevenson v. Douglas, Ber. 281. 27 — The Court will not order a Sheriff to rctaiu iu his hands money which he has levied for A. ou an execution in order to satisfy an execution iu his hands against A. Bradley v. Hoplei/, V. Ms. 147. 28— Demand for rent. Sheriff entitled to a reasonable time to make enquiries as to rent demanded. Sec Landlord and Tenant III. 15 Liability of Attorney General for Sheriff's fees. See Attorney General 3. Escape — Liability — Damages. See Escape — Damages I. 12. Remedy of creditor after proceedings taken against Sheriff. See Discharge 2 — Es- cape 1. Rule for body may be taken out in Term without motion. Sec Practice VIII. 5. Coroner— Jury process. Qttxrf, Wlietlicr it is uooessary to direct any uthur but jury process to a Coroner, wheu the only objection to the Sheriff is, that he is related to defendant. Steven- una v. Douglas, Ber. 281. Sale — Wrongful conversion by Sheriff. See Trover 29. SHERIFF'S DEED. 1-Affldavit— Miscalling execution. The affidavit of the Sheriff under the Act 4 Wm. 4, c 22, as to the preliminary st«p8 having been duly taken before the the sale ot real estate seized in execution, must be made at the same time as the deed of conveyance ; and as a deed must in the absence of evidence to the con- trary, be presumed to have been executed ou the day it bears date, uu affidavit pur- porting to have-been sworn on the 2ud February, when the deed bore date the 22ud January previous, and no other proof of the time was offered, was held in- sufficient. Doe d. Bustin v. Donnelly, 3 Kerr GG. The uiiscalling an execution a testatum fieri facias in the Sheriff's deed, whereat* it was in fact a fit-ri /arias, is not a fatal error : the execution being properly set out in the deed. Ibid. S— Begularity of proceedings— Pre- sumption. A. purchased lauds at Sheriff's sale in 1831, and took possession with the assent of the judgment debtor, who never dis- puted A.'s right or the regularity of the proceedings. Held, in an action of tres- pass against A. by n person who shewed no title, and had only recently obtained possession, but did not claim under the judgment debtor, that it would be presumed that the Sheriff's proceedings were regular, though there was no evi- dence of any execution issued or adver- tisement of the property ; and that the Sheriff's deed was theretbre properly ad- uiittod in evidence. McLardy v. Flaher- ty, 3 Kerr 455. Restraining sale — Injunction. See Practice in Equity II. 4. 3— Execution of deed— Parol evidence. Where a Sheriff's deed and his affidavit of due execution aud sale bear different dates, parol evidence is admissible to prove that they were executed on the a;iiiu! dny JJoe d. Conned v. Dickenson, 1 Han. 45G. Affidavit to be uiadeatMame tiuie that deed is executed — Presumption us to time. See Deed 1. 37. Affidavit by Deputy Sheriff on deed — Proof of authority. See Evidence XI. 1. 4— Bale— Former judgment— Relation. The title conveyed by u Sheriff's deed, to land sold under execution issued upon u judgment recovered inuu action brought on a former judguuiutof this same Court, docs not relate back to the time of sign- 374 SHERIFFS SALE. ing the firvt jucl<;niCDt, an as to nffcct a conrcyiince made by the jud<;iiient debtor between the tiiiicH of sigiiin<^ the first and second judgments. Docihtn. J*ea6o(fj/ v. MK>nyht,Ber 376. 6— Judgment— Attaching of— Execu- tion — Relation — Recital not curtailing the granting part. A Sheriff'^ deed recited that tlie Sheriff had seized all the right and title which the judgment debtiir had in a certain piece of land (describing it) at the time of registering a memorial of judgment : the granting part of the deed conveyed "all the Muid lauds and tenements." At the time of registering the memorial, the debtor hud no title to the laud, but it was afterwards granted to him, and he conveyed it to the defendant before the execution issued. Held, Ist. That tht» judgment attached upon the land when it was granted to the debtor; and that when the execution issued, it related back to the registry of the memorial, and defeated the conveyance to the defend- ant; 2nd. That the granting part of the deed was not controlled by the recital ; but conveyed all the land described in the deed. Voe, dcm. Kerr v. Jamieson, Trin. r. 1871. e — Variance between execution and judgment — Execution — Alias — jProof of original not necessanr. In ejectiiieut, claiming under a Sherin s deed, the execution under which the sale took place, recited a judgment for XI 105 lis. debt, nnd JLh Us. costs: the judg- ment was fur £1105 lis in the whole. Held, That the variance was only an irregularity, which could not be taken odvnntage of at the trial Held, also — the sole being under an alias, the original execution need not be proved. Doc f:| m ■■ 45 378 SUPERSEDEAS. SUPREME COURT IN EQUITY. 1— Flea before appearance— Waiver. Under the summary Act 4 Wm. 4, c. 41, (12 Vio. e. 40,) a i^ea filed before an appearance entered, is a nullity ; and it is doubtful whether it can be waired. If it ean, a demand of perticulars of set- off is not a waiver of it. Andrewa v. HamoH, 1 All. 509. A demand of porticolars is not a step in the cause. Ibid, 8— Verdiot— jFInaiity— Below £20. The rule that the verdict is final in sum- mary actions, will be applied to other actions for mere money demands, where the verdict is for the defendant, and the only amount which the fdaintiff could have recovered is less than £20. McAllis- ter V. Day, 4 All. 37. -Sug- 4— SeToral defeiklante— Death gestion. If one of several defendants in a sum- mary action dies before interlocutory judgment, the plaintiff should make a sug- gestion of the death in the memorandum of judgment and subsequent proceedings, or the judgment will be set aside for irregularity. Where such suggestion was omitted, the phtintiff was allowed to amend on payment of costs. Vrane v. Goodine et al, 4 All. 371. f— Plea— Nil debet. Nil debet is a good plea in a summary action of debt on a record, under the Act 12 Vic. c. 40. Wetmore v. Provan, 4 AU. 442. 6— Jury. The finding af a jury, improperly sum- moned, in a summary action, is not final under the Act 12 Vic- c. 40. Wetmore V. Levy, 4 All. 510. 7— Member of Assembly. A member of the General Assembly can- not be sued by a summary writ, under the Act 12 Vic. c. 40. DesBrisay v. Steadman, 4 AU. 597. SUMMONS. Service of. See Practice IV. Party appearing. See Justice of the Peace IV. 16 a, 17. Members of House of Assembly must be sued by bill and summons. See Arrest 3. SUPERSEDEAS. The issuing of a Ji. /a., which is not returned, will not deprive a prisoner of a supersedeas. Jackson v. Black, 4 All, 79. See Absconding Debtor 1. Not charging in execution— Settlement pending. A defendant, rendered by his bail after judgment, wrote to his attorney, request- ing him to see the plaintiff 'a attorney and endeavour to compromise the debt and get time for payment. Within three months after the render of the defendant, this letter was communicated to the plain- tiff's attorney, who, after seeing the plain- tiff, informed the defendant's attorney of the terms on which the plaintiff was will- ing to settle. Held, That it was the duty of the defendant's attorney to com- municate the offer to his client, and that until ho did so, the treaty for settlement was pending, and the defendant was not entitle*' to a supersedeas for not being chargec: in execution within three months after the render. Jones v. Steeves, 1 Han. 260. SUPREME COURT IN EQUITY. See Praetice in Equity — Equity. 1— Appeal— Time— Decree. An appeal from a decree in Equity under the Act 17 Vic. c. 18, s. 32, may bo made within twenty days after the minutes of the decree have been settled by the Clerk. Frost V. Nichols, 3 AU. 297. For the purpose of appeal, the decision of the cause is not the pronouncing the decree by the Judge, but the formal entry of it by the Clerk, when perfected. Ibid. 2 — An appeal to the Queen in Council, under the order of November 1852, from a judgment of the Court affirming a decree in equity, may be applied for within fourteen days after the minutes of the decree are settled, though more than fourteen days have elapsed since the judgment was pronounced. Broohjield V. The St. Andrews and Qtiebec Railway Company, 4 All. 496. 8— Ctosts. Costs of interlocutory proceedings being generally in the discretion of the Court before which the proceedings are had, a Court of Appeal will not interfere unless it is evident that injustice has been done. Allen ▼. Trenholm, 3 All. 421. As a general rule, appeals are not entertained in queatioBS of fiosts. Ibid. SUPREME COURT OF JUDICATURE. S79 3 a— Costs— Beveraal of ordsrof Judge. Where aa order of a Judge in Equity is reversed oa appeal, the Court of Appeal has power to order that the costs of the proceedings in the Court below be allowed to the applicant. Wiggina v. Hendricks, mi. T. 1873. 4— ETideno»— Discretion as to use of. On a reference in a suit in equity to take an aeconnt, the Barrister received evi- dence of a claim by the plaintiff in a matter not mentioned in the reference, but made no report upon the validity of the claim. At the hearing of the cause, this evidence was not used, and a decree was made without noticing this claim. Held, on appeal from this decree, That though under the Act 17 Vic. o. 18, it was proper to produce the evidence before the Court of Appeal, the Court was not bound to iise it. Deveber v. Andrews, 4 AU. 626. 5 — Appeal paper. See General Rules 9 a, 6 — Review by Court — Judge granting leave to appeal. See Practice V. 5 a. 7 — Entry of cause on appeal paper. See Practice V. 8 — Review of taxation of costs. See Costs IV. 9 — Supervision of proceedings of trustees. SemLle, That the Court of Equity has power to supervise the proceedings of Trustees of absconding debtors appointed under the 1 Rev. Stat. c. 125, and to open and examine accounts adjusted by them; but it will not interfere where there is no fraud, and the proceedings of the Trustee have been regular and no special ground is stated. Outhouse v. Hickman and otJiers, 1 Han. 38. Power of Court to amend pleadings in a cause — Ex parte Amendments. See Amendment I. 18. SUPREME COURT OP JUDICA- TURE. 1— Jurisdiction. The Supreme Court of this Province has no power to declare an Act of the Provincial Legislature to be invalid; cither on the ground that it interferes with private rights, and is therefore un- coDstitutional, or, that under the Royal Instructions to the Governor, the Act ought not to have been passed without a suspending daose. [But see Reg. v. Chandler, 1 Han. 648— since the pass- ing of " The British North America Act, 1867."] Reg. v. Kerr, Ber. 367. (See British North America Act.) 2 — The Supreme Court, by virtue of the Coniuiission under which it was consti- tuted, may exercise the same jurisdiction in regard to the discharge of estreated recogniiances in this Province, as the Court of Exchequer does in England under the Stat. 33 Hen. 8, c. 39 ; and has a general discretionary power, under that Statute to examine into the suffi- ciency of the reasons alleged in excuse, and to discharge a recognizance forfeited by not appearing for trial at a Court of Oyer and Terminer, and to stay proceed- ings on such recognisance Beg. v Ap- pleby, Ber. 397. 3 — The Supreme Court, exercising by the commissions of the Judges, the power of the Barons of the Exchequer in England, has authority to relieve against estreated recognizances, under the Stat. 33 Hen. 8, c. 39. Hex v. Morse, East. T. 1826. 4 — The Supreme Court, being exclusively a Court of Common Law, does not possess the jurisdiction of the equity side of the Court of Exchequer in England, even in revenue cases. The Attorney General v. Baillie, 1 Kerr 443. 5 — The Supreme Court has the same juris- diction as the Court of Exchequer in England, in removing from other Courts, causes affecting the rights of the Crown, or the public revenues. Wilson v. Bris- coe, 2 All. 535. 6— Discretionary power. Pending a writ of error, the Supreme Court may in its discretion allow an ap- plication to be made to the Court below to amend formal errors on the record, and may suspend judgment in the mean time. Such proceeding was allowed, where the award of the venire and the day of trial were left blank on the record of the Court below. Kinnear v. Gallagher, 1 Kerr 424. Ordering issue to be tried. See Practice XII. Power to quash order for support of insolvent debtor. Where Justices make an order for sup- port under the Insolvent Debtors' Act — 380 SURW"!NDER. SUSPENSION— (CLAIM.) (1 Rev. Stat. c. 124,) — and it appears, by the examination of the debtor that he has given an undue preference to one of his creditors, — this Court has power to quash the order. McDonahl r. Watt, 1 Ban. 24. Crown bond — Application for relief — Sum- niary application. See Practice V. 6. SURETY. See Consideration 8. it Principal and Surety. Alteration of position, by subsequent a^freement. A., with B. as surety, entered into a bond to the i^intiff, conditioned that A. should maintain the plaintiff during his life : by a subsequent agreement under seal, be- tween the plaintiff and A., without B.'s consent, they bound themselves to refer all questions relating to the performance of the condition of the bond to two arbi- trators, and to abide by their decision. Held, That the position of the surety was altered by this agreement, and that he wan discharged from liability on the bond. Williamson v. Sleeves, 4 All. 449. Relief of. See Principal and Surety 7. SURGEON. Negligence. See Action on the Case. Acting as such. See Evidence VI. 6. SURPLUSAGE. See Action on the Case II. 3, III. 5. « Pleading I. 2, 29, 37, 39, 50. Reference to Plan. See Trespass II. 19. SURPRISE. See New Trial. See Evidence VIII 3. SURRENDER. Of lease— Purpose— New trial. In ejectment by a lessee against his lessor, a surrender pf 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 com- mencement of the term, paid the lessee for a fence he had erected, and afterwards built upon the land and remained in pos- session for about fifteen years without any claim made by the lessee ; a verdict for the plaintiff on the ground that the pos- session was only given up for a temporary purpose, was set aside, in order that it might bo again submitted to a jury, it appearing that the purpose for which it was alleged to have been given up 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 the ten- ant's re-deniaud of it, the land had much increased in value. Doe v. Jack, 1 AH 476. See Covenant 9. SURROGATE COURT. See Executors and Administrators. The decision of the Surrogate Court on all matters, properly within its cognizance, under the Act of Assembly 3 Vic. c 61, as relates to the executor's accounts, is final and conclusive, subject to the appeal to the Court of Chancery, except where otherwise provided by the Act ; and such decision will be binding on Courts of Law where the amount of assets comes it ques- tion, in actions brought by creditors against the executor. Harrison v. More- house, 2 Kerr 584. The principles of equity are not excluded from the proceedings in the Surrogate Court in the settlement of estates. Ibid. Irregularity of proceedings — Remedy by appeal — Objection not allowed on trial. See Deed I. 40. SURVEY. See Crown grant. Return of survey in Surveyor General's office is admissible to explain ambiguity in grant. See Evidence II. 6. Survey not satisfactorily ascertained. See New Trial II. 2, 27. SURVEYOR GENERAL. Notice signed by Surveyor General in offi- cial character — Sufficiency. See Crown Grant I. 18. SUSPENSION— (CLAIM.) See Satisfaction. Acceptances given. See Assumpsit III. 11. See Satisfaction. See Action at Law VI. Taking bill for debt. See Bills and Notes V. 31. TENANTS IN COMxMON. TENANT FOR LIFE. 381 Agroement ai to snspension of remedy. See Distress 2. Persons beyond seas. Sec Ejeciment II. 8. Note payable at particular place — Necessity of proflentuient before recovery. See Bills ard Notes VI. 12 a. Composition — Note given. See do. V. 9. See Judgment I. 2. Bank suspending payment — Winding up — Liability of executors. See Executors and Administrators II. 13. TAVERN KEEPER. bielling liquor on credit. See Bills and Notes VI. 3. See Credit. TAXATION OF COSTS. See Costs. TENANTS IN COMMON. 1 — Where persons jointly manufacture tim- ber, whicn is to be divided between them, they are not partners, but tenants in common, and each has a right to dispose only of his own share. Wtgijinsi v. White, Ber. 97. 2 — Qutere, Whether any, and what acts, short of the destruction of the joint pro- perty, will enable one tenant in common to sustain trespass against his co-tenant. Ibid. 3 — If one tenant in common, with the con- sent of his co-tenant, sells more than his own share of the common property, he will be deemed to have acted as the agent in respect thereof, and an action for mo- ney had and received may be maintained against him by his co-tenant. Shaw v. Grant, Ber. 110. 4 — Where two persons cut and haul timber, under an agreement that the timber is to be " got on the halves," they are tenants in common. Kerr v. Counell, Brr. 133. 5 — One tenant in common cannot recover in assumpsit against his co-tenant, for his share of the common property, unless a sale by the co-tenant be proved. Doyle V. Tai/lor, Ber. 201. 6 — The saws, water-wheel, etc , in a mill, the property of tenants in common, are a part of the inheritance, the damaging or taking away of which, except with intent to repair or replace them, is in the nature of wai>te, for which one tenant will bo answerable to his co-teuaut. Linton v. Wilson, 1 Kerr 223. Action by. money h ^ and reoeived— Bendering account. One tenant in common cannot maintain ac action for money had and received against his co-tenant, fur receiving more than his share of the rents and profits of the joint property, unless there is an account set- tled and balance agreed upon, even though the defendant may have acted as bailiff of the other co-tnnants in receiving the rents. Frost and another V. Disbrow, 1 Ilan. 73. Defendant being a tenant in cuuimon with the plaintiffs, who were infants, rendered in an account, in which he acknowledged a certain sum to be due from him to the plaintiffs, as their share of the rents of the joint property which he had received; the plaintiffs' guardian disputed the cor- rectness of the account, and claimed a much larger sum frou'i the defendant. Held, in an action ibr money had and received. That such balance not having been agreed to, the plaintiffs were not entitled to retain a verdict for that amount. Ibiil. Limitations — Adverse Possession. See Limitation of Actions IV. 23, 24. Landlord tenant in common — Holding as tenant on new terms. See Landlord and Tenant II. 6. Partition. See Partition. Trespass — Justifying as tenant in common. See Trespass II. 26. Conveyance to grantor — Operation. See Deed I. 26. TENANT BY COURTESY. Possi'K.siiin of husband as tenant — Heir's right of entry. See Ejectment II. 7. Wife tenant in fee of land — Husband's residence — Crops raised by husband — Liability to seizure. See Execution IV. 16. TENANT FOR LIFE. The tenant of a devisee for life may after the death of such devisee, be ousted by the remainderman without any notice to quit. Doc (lem. Fields v. McKay, 2 Kerr 435. 382 TENANT AT WILL TENDER. TENANT AT WILL. 1— The 29th Section of the Act 13 Vic. c. 53, (Landlord nnd Tenant) does not ap- ply to a tenancy at will. See Ex parte Irvin, 2 Ait. 519. 2— Agreement to purchase— Possession under. A person let into possession of land by the owner, under an af^reenient to pur- chase has only the estate of a tenant at will, unless there is sonic agreement re- specting the occupation of the land before the sale is completed. IJop. i/em. Cliff v. Connawat/. Jier. 382. 3— Determining tenancy— Notice- Demand. A. entered into a bond to convey land to B. his heirs or assigns on payment of a certain sum in five years : before the day of payment, A. died, having devised the land to his wife for life, and atW her death, to his children, ^the lessors of the plaintiff.) B. assigned liis interest to the defendant, who paid the purchase money to the widow, and received from her a deed of bargain and sale. After the death of the widow, A.'s children brought ejectment. Held, That the deed from the widow to the defendant terminated any tenancy at will that might have ex- isted, and that no notice to quit, or de- mand of possession was necessary bc82. TENANCY. Working farm on shares. See Trespass [. lU. TENDER. Pleading general issue and tender to part of claim. See Pleading 1 1. 24. TIMBER. TREASURY BOND. 383 Recovery of money without proof of tender of deed. See Condition Precedent 3. TERMS NOTICE. Plaintlif's intention to proceed in cause. See Practice IX. 5, 5 a. Executing writ of inquiry. See Practice IX. 12. TERMINATION OF PROCEEDINGS. Jury ignoring bill. Sec Criminal Law. TESTATUM. See Execution. See Execution. TESTE. TIDE, See Crown Grant. TIMBER. Liability to (leisure. If timber is out upon crown lands, over which this Province has exercised and continues to exercise jurisdiction, it is liable to seizure here, though the terri- tory where it is cut is claimed by the Government of Canada as being part of that Province, and license to cut timber has been granted by that Government. TMlts V. Allan, 3 Kerr 280. Property in whom. A being indebted to plaintiff, and in oonsidovation of furth'"- advances that might bo made to him, agreed to go upon land, leased by Government to the plain- tiff, and manufacture ibr him a quantity of timber, and rail and deliver it at a certain place in the following spring, at a certain rate per ton — A. to find all necessary supplies and to pav the men's wages; and if there should be any balance duo A. on the completion of the agreement, it was to be paid to him by the plaintiff — half in cash and half in goods ; and that as A. was only employed to manufacture the timber for the plain- tiff at a certain rate per ton, ho was not to charge A. with the tonnage or export duty, as was usual where lumberers brought timber to market on their own account. Held, That A. was only the servaut of the plaiutiff, and hud uo right in the timber, — the property in which vested in the plaintiff as soon as it was cut; and that the men employed by A. in getting the timber, bad no lien for their wages. Crane v. Hutchinson, 3 KerrA&\. TIMBER LICENSE. See License — Trover — Replevin. TIME (COMPUTATION OF.) The day of service of the rule to plead is to be computed one of the twenty days allowed for pleading. Clcwes v. Scaullar, 2 Kerr 627. Motions when to be made — Days service — Notices. See Practice IV., V. Words "at least." See Practice IX. 3. For purposes of justice. Court will take notice of time of day when proceedings had. See Execution I. 7. The words "Within three months there- from " relate as well to cupcs where there has been no appearance, as to cases where defendant has appeared. See Practice in Equity I. 27. TITLE OP CAUSE. See Affidavit II. TITLE TO LAND. See Limitation of Actions. " Ejectment — Deed. Title to land in question. See County Court. See Justice of the Peace. TOP WHARFAGE. See Wharf. TORT. Waiver of — Assumpsit. See Assumpsit III. 26, 37. See Use and Occupation 4. TRANSFER. See Chattol — Delivery. " Shipping Law 6. TREASURER. See Deputy Treasurer. TREASURY BOND. sias — Summa liof. See Praotioe Scire Facias — Summary application for re- V. 6. 384 TRESPASS. TRESPASS. I. Rr;AL Pbopertv — Right to main- tain Action — Sufficiency of Title — Party. II. Defence — Pleading — Evidence. III. Personal Property. lY. Damages. V. Assault and False Imprisonment. VI. Misceli^aneous. I. Real Property — Hioht to maintain Action — Sufficif,ncy of Title — Party. 1— Privilege— Entry necessary. A grant fioui the Crown of a privilege to build mills in the bed of a river does not convey any right in the soil ; therefore the grantee cannot before actual entry in the exercise of the privilege, maintain trespass against a person for building a mill upon the place where the privilege was granted. Frhk v. Hill, East. T. 1 831 . 2 — Begistered deed — Actual adverse possession of defendant. A deed registered under the Act 26 Geo. 3, c 3 will not enure to give possession to the grantee, so as to enable him to niaintaiu trespass against a person in the actual adverse possession of the land, and who took possession subsequent to the registry of the deed and the entry of the plaintiflf under it, and continued such possession for several years before the alleged trespass. Ditiilium v. Kiiij, Trin. T. 1H31. 3— Unregistered deed. An unregistered deed transfers no pro- {)erty, and gives no right to enter on and. Patlvnunv. TimjUy, Tnit. T. 1863. 4— Entry without title- Third party— SuMoiency of possession— Judge —Jury. An entry by a person without title, on laud in the actual occupation of another does not give him a possession to enable him to maintain trespass even against a third person. Mirrilt v. (Jniiifoii, Jiir. •2(»9. 5 — Plaintiff under a claim of right, but without any title, entered on land in the actual poHHosHiou of U. and — without H.'s outhority — surveyed a part of the land ond pul tip a fence thereon ; the fence was pulled down and destroyed by the defendant. Held, That the plaintiff had not any possession of the land to enable him to maintain trespass, though no oonnoxion was shewn between the defend- ant and B. Merrltt v. Qumton, Jier. 209. 6 — It is a question for the Judge, whether the plaintiff has made out a sufficient possession to entitle him to go to the jury. Ibiif. 7— Division line— Parol agreement. Where the respective owners of adjoin- ing lots, agree by parol to a division line, it is binding upon them, though ic may differ from the line to which thny had previously occupied, and one may maintain trespass against the other iiir an entry on a part of the land, which be- fore the division had been in the defend- ant's possession. Lawrence v. McDowall, Bcr. 283. 8— Glebe— Church Corporation- Rector. Where land is granted to a Church Cor- poration as a glebe, and a Rector has been duly inducted, he has the pot-session, and an action of trespass for entering on the land and cutting down trees, must be brought in iiis name, and not in the name of the Corporation. liator -e, Whether if the case had been left to the jury on the question of possession alone, and they had found for the plain- tiff, the Court would have interfered. Ibid. 30— Insufficient possession— Evidence. 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 how he got posses- sion, or how long he held it: the land had been unfonced for several years be- fore, and the plaintiff had never occupied it, or taken possession. Held, That he had neither the actual or constructive possession, and could not maintain the action. Ureelman v. Atkinton, 3 All. 450. 81— Color of title— Possession against wrong doer. In trespass quare clausvm /regit, it ap- peared that the land which was princi- pally wilderness, had been grnnted to a person who resided out of the country ; that one T. or his agent had a charge of the land to prevent trespasses on it, and also had a power of attorney authorising 388 TRESPASS. him to sell it, and that, after the death of the grantee, T., believing thiit the antho- rity continued, conveyed the land to the {laintiff who had the lines of it run out y a surveyor and exercised acts of ownership over the land by cutting timber. Held, That though the plain- tiff acquired no title to the land by his deed, he went in under color of title, and had sufficient possession to entitle him to recover against a mere wrong doer who entered on the laud and cut timber after the plaintiff took possession and ran out the lines. Mffinit v. Parks, lUl. T. 1866. II. Defence — Pleading — Evidence. 1— Bight of aoil—Biver— Easement. An &'',sement or privilege granted by deed, to turn the water of a river for the use of mills, and to build mill-dams, does not convey the right of soil, and cannot be given in evidence under the general issue in trespass. Wallace v. Milliken, Ea»t. T. 1831. 2— Fence— Breaking— Cattle entering. Defendant threw down a fence and en- tered on land in the plaintiff's possession claiming it to be a highway, and in con- sequence of the fence being thrown down, the defendant's cattle went iu upon the plaintiff's field. Held, That this was not a — " breaking into a field under lawful fence " — by the cattle, and there- fore that a Justice of the Pcuce had no jurisdiction to proceed against the de- fendant in trespass under the Act 1 Wni. 4, c. 9, s. 6. Volwell V. Punly, Tn'n. T. 1831. 8— AdmiBsioa— Killing ox— Consent. An admission by the defendant that he had killed the plaintiff's ox and ought to pay for it, will not support an action of trespass for taking the ox, there being some evidence that the ox had been worked by the defendant, by consent of the plaintiff's agent. Bramjieldv. liitshop^ lier. 89. 4— Entry to remove timber-XTeoessary evidenoe. A man cannot justify an entry on the land of another for the purpose of taking his own property, unless he shews that it was upon the land without any fault or neglect on his part; therefuru in trcHpass quare d. frajit, u plea justifying the entry for the purpose of removing the defendant's timber which had been carried there by a sudden rise of water in the river in which it was being flouted to market, is bad, because it does not shew that the defendant was not in fault, by endeavouring to prevent the timber from floating on the plaintiff's laud. Read V. Smith, Ber. 173. 6— Entry— Conimand— License. A defendant in trespass may justify his entry by the command of the owner of the freehold, but not by his mere permis- sion or license; therefore where the plaintiff proves a trespass by the defend- ant on land in his (plaintiff's) possession, it will be no justification to the defendant to shew that the title was in a third person, from whom he had agreed to purchase it, and under which agreement he went into possession. (See Robinson V. Vaughton, 8 C. and P. 252.) Parent V. Corueilison, Ber. 235. 6 — In trespass quare cl. /regit, if defendant justifies the entry on the land Under a third person he must shew that he entered by the command and under the authority of such person, not merely that he allowed the defendant to enter. Keen V. Seiimour, Ilil. T. 1864. 7— Entry on ground opposed to title as mortgagee -Setting up mort- gage. In trespass, where the question in dispute was the dividing line between the plain- tiff's and defendant's land the defendant, among other grounds of defence, relied on a mortgage given to him by the plain- tiff before the alleged trespass upon the lot occupied by the plaintiff. Held, That as the defendant had entered on the laud upon a ground opposed to his title ns mortgagee, it afforded no justification of the trespass. Merrithcw v. SiHsuii, 3 Kerr 373. 8— Joint trespassers— Separate tres- passes. Where there arc a number of defendants in an action of trespass, and pluintilf proves an act of trespass against sduio and not againot all, and then goes im to prove another act against others of de- fendants not implicated in the first act proved, ho must bo taken to have iibau- doned the first act and bo confined to thu last not proved. Maluney v. Punlcn, IJ Kerr 616. 0— Several defendants— Joint liability. In trespass against several defeudantN, it TRESPASS. 389 they go upon the land with a common purpose thej are jointly liable, though the acts of trespass are separate and are comuiitted on different parts of the land. Ferguson v. Savoy, 4 All. 263. 10— If two persons enter on land wrongfully and cut down trees separately, but unite in taking them away, by removing obstruc- tions in the roads, they are jointly liable for the taking and carrying away, but not f(»r the cutting. Keen v. Seymour, int. T. 1864. 11— Verbal command by mortgagee not in possession. In trespass for cutting and carrying away trees off land in the plaintiff's pcssession. defendant may justify under a verbal command to enter and cut, given by a mortgagee of the land not in possession. Canon v. Griffin, Hil. T. 1865. 12— Joint trespass— Separate— Aban- donment. In a joint act of trespass, if the plaintiff wishes to rely on a separate act of trespass by one of the defendants, he must aban- don the joint trespass ; he cannot ask the jury to find in the alternative. Lawton V. Adams, East. T. 1862. • 13— Abandonment— Judge— Discretion. In an action against several defendants, the plaintiff proved acts of trc8pa.s8 on the 6th June, in which all the defendants were concerned, and another act of tres- pass on the 10th, in which only one of the defendants present on the 6th took part : the plaintiff then elected to pro- ceed for the first trespass proved. Held, That this was a matter in the discretion of the Judge ; and that the plaintiff by giving evidence of the trespass on the 10th June, had not abandoned the previous one proved. Ache v. Alexandre, East. y. 1871. 14 -Entry to retake cattle wrongfully taken. In trcspiuss for breaking and entering plaintiff's bnrn, defendant jii.srificd on thi! ground that his cattle had been wrongfully taken by the plaintiff, who locked them up in his barn, and re- fused to give them up. Held sufficient, and that defendant had a right to take his cuttlo from the plaintiff, who was a wrong doer. (See Blades v. Higgs, 7 Jur. N. S. 1289.) Graham v. Green, Trtn. T. 1862. 16— Deed -Begistry- Relation. In trespass (/nare cl. frajit for cutting grass on the 31st July, the plaintiff proved possession only : the defendant justified as owner of the land under a deed dated the 15th July, but not regis- tered till the 1st August. Held, 'That as against the plaintiff the defendant had not title by relation from the date of the deed. Patterson v. Tingley, Trin. T. 1863. See Relation 4. 16— Liberum tenementum— Proof- Close. In trespass qnare cl. /regit describing the close by abuttals, the defendant pleaded liberum tennmcntum. Held, That under this pica, he was bound to prove that that part of the close described by abut- tals on which he entered, was his soil and freehold, and that, having failed to prove title to a small piece of the land so described, on which part of the tres- pass was committed, the plaintiff was entitled to a verdict. DesBrisay v. Liv- ingstone, Trin. T. 1864. 17— Crown grant— Possession— Ques- tion for jury. Defendant in trespass claimed the locus in quo under a grant from the Crown, the plaintiff gave evidence of acts of possession of the land for twenty years prior to the grant, by which he claimed that the Crown was out of possession, and could not grant without office found. Held, That this evidence of possession ought to have been left to the jury. Smith V. Morrow, Mich. T. 1872. 18— Church corporation— Members' rights. In trespass for boarding up the doors and windows of a parish church, the defendants justified as church wardens, and that they had closed the church for repairs, but the evidence shewed that they had closed it to prevent a clergyman who claimed to be rector, from offici.iting. Hold, in the absence of proof tliat there was any legally appointed rector, That the defendants had no right to dismantle the cliurch as against the church corporation, oven though they were theutsetves members of it. Hector etc. of iSV. George's Church v. Covgle, 1 Han. 609. 10— Admission by plea— Plan— Lot. In trespass the declaration described the premises as four closes in the city of St. John, fronting on Klliott Row, and known and distinguished on the map or plan of the city on file in the Common Clerk's 390 TRESPASS. Office as lots Nos. 294. 295, 296 and 297 — plea — not guilty-^'' so far as re- lates t4i the said ulose No. 295 iii the de- claration mentioned " — and as to the other closes, payment of money into Court. Held, That the plea admitted the identity of the lot, and therefore evidence of the plan filed in the ComuK u Clerk's Office w;is unnecessary. Semhfc, That aa the numocr of the lota corres- ponded with the <;rant of the lots, which was in evidence, the reference t) the plan was surplusage Merritt v. Coxtttei; 2 Kerr 385 20— Property delivered to avoid exe- cution. In trespass for taking hay, which plain- tiff cliiuied to have been delivered tt) him by defendant in payment of a debt. Held, That evidence was admissible on the part of the defendant, to shew that the hay was delivered to plaintiff in order to pre- vent its being seized on execution against defendant, and that no property was in- tended to pass to the plaintiff. Knotcks V. Adiitm, int. T. 18G3 21 — Unregistered deed — Command — Entry. In trespass defendant pleaded freehold in P. by wlio.se command he entered. Held, That an unregistered deed of release from P. to defendant was not evi- dence of such command. An unregis- tered deed transfers no property, and gives no right to enter on land. Patter- son v. Tlnylri/, Trin. T. 1863. 22 — Distress for rent — Keeping and detaining in satisfitotion for rent. It is a good plea to a declaration in tres- pass 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 pro- ceeded to sell the goods, yet the omission to do so win pot enable the owner to maintain crospiisi., the original taking being lawful. The option granted by the .Vet 50 Geo. 3, e. 21, s 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 230. 23— Tenanoy— Bight to crops. In trespass for taking hay and grain, it was proved that the laud on which they grew belonged to the plaintiff's father, who, four years before the trial, gave it up to the plaintiff on condition that he should support his father and family : that the father continued to live on the land, but that the plaintiff took the management of the farm and sowed the grain and cut the grass. Held, That the jury were properly directed that this constituted a tenancy and gave the plain- tiff the possession of the crops. Ferymon v. Savoy, 4 All. 2»i3. 24— Locus in quo— Highway. To an action of trespass quare clausum fret/it, the defendant pleaded that the locus //( quo had been laid out and re- corded as a road three rods wide. Held, That the proof of such laying out «nd recording would not sustain a justification depending upon the fact of the place being a public highway, the Act of Assembly requiring that no public high- way should be laid out of a less width than four rods. Pirley v. Dibbke, 1 Kerr 514. 26 — Separate trespasses — Evidence — Abandonment— Necessity of. In trespass against three defendants for taking away logs, which taking occupied several successive days, the plaintiff proved a joint trespass against all the defendants daring the first two days, after which one of the defendants went away : a verdict having been found against the other two. Held, That the trespasses were not so separate and distinct as to require the plaintiff to abandon the joint trespass before giving evidence of the trespass by the two defendants. Atkinson v. SlcAuley, 4 All. 243. Qumre, Whether where the two defendants are clearly liable, the evidence of the trespass by the three, is ground for a new trial. Hid. 26— Denial of title— Claim— Justifica- tion— Evidence. On a verdict in trespass for the plaintiff, claiming title by descent from his fatlicr, the Court refused a new trial moved for on the grouud thatS., one of the defend- ants, was the plaintiff's brother and therefore justified in entering as a tcuant in common with the plaintiff: the defence at the trial being a denial of the father's title, and a claim under a different right. Sears v. /'alinrr, 3 All. 400. Qiiicre, Whether if the father's title hud not been denied, the verdict would have TRESPASS. 391 been good against the other defendants on the plaintiif entering a not pros, as to S., he being a party to all the alleged trespasses. Sears v. Palmer, 3 All. 400. Defendant in trespass offered as evidence of title a registered deed to himself from one who had neither actual or construc- tive possession of the land. Held, That this deed was properly rejected. Ibid. 27— Possession— Insuffloient evidence. The defendant in nn action of trespass justified under A., and in order to show title in him, offered evidence of a con- versation between A. and B., — not made upon the laud, but several miles distant from it, — in which A. gave B. permission to build a mill on the land in dispute. B. built the mill more than twenty years before the action, but did not further recognize A.'s right to the land. Held, That this was not sufficient evidence of A.'s possession, and that the justification was not proved. White v. Smith, 4 All. 335. 28— Extent of possession- Unregister- ed deed— Evidence. The acts of a near relative and personal representative of a deceased person, done in behalf of his minor children and heira upon and in regard to land which was claimed by the deceased, but under a defective title, will enure to the benefit of such heirs, to shew possession in them, as against a mere wrong doer, and the title deed, though not sufficient to con- vey the land for want of due registry or livery of seisin, may be used to shew the extent of the claim of possession. Uadden V. mite, 2 Kerr 634. 29— Boundary— Necessary evidence. In trespass, the plaintiff claimed title un- der a grant and survey made in 1823 ; the defendant claimed the same land under a prior grant to D., and conveyan- ces from P. to E., and from E. to him- self, made in 1834, under which ho en- tered. Held, That though no conveyance was shewn from D., the original grantee, the defendant was not a mere wilful tres- passer, and that the plaintiff could not recover on his possession alone, but was bound to prove that the line contended for by him was the true boundary between his grant and the grant tj D., and that the question of boundary should have been subuiittod to the jury. Baldwin v. Braydon, 3 Kerr 169. 30— Highway— Flougtaing soU. In trespass to land, ana ploughing up the soil, the defendant pleaded that there was a public highway over the land, by reason whereof he entered. Held, That if it was a highway the defendant was not justified in ploughing up the soil. Cole V. Maxwell, 3 All. 183. 81— Cattle— Defect of Fences. In trespass by cattle, if the defendant justify the entry of the cattle through defect of fences, it must bo specially pleaded. Griswold v. Ifallet, Alich. T. 1834. 32— Adoption of acts— Presumption. By Act 10 Vic. c. 72, incorporating the South Bay Boom Co., amended by 11 Vic. c. 49, and 17 Vic c. 52, though timber placed within the Booms is under the general control and direction of the Company, it is' under the immediate charge of the owners, to be fastened and secured by them, and at their risk ; therefore the Company is not liable in trespass where rafts are fastened to trees on the shore of land within the limits of the Boom, unless the act was done by the Company or their servants, or with their knowledge and consent ; or, if done by other persons, — unless the Company has adopted the act. The mere fact that the Company is entitled to boomage on all luuiber coming within the boom, does not raise any presumption that the luuiber was fastened in a particular place by their direction ; nor is the receipt of boomage an adoption of the act of the owners of lumber in fastening it to the land of a riparian proprietor. Dever v. South Bay Boom Co, East. T. 1872 38— Company— Contractors under— Liaoility. The defendants, a Railway Company, be- ing authorized by Act of Assembly to construct a line of railway, entered into a contract with A. and B. for that purpose. The contractors, in order to get ballast to complete the road, laid down a track across the plaintiff's land, leading to a gravel pit, and used it for the trans- portation of gravel to the railway. Held, That the defendants were not liable for the acts of the contrnotors, the trespass having been committed without their au- thority, and being merely collateral to the work which they had agreed with A. ond B. to perform. Payne v. Frederic- ton Railway Co., Mich, T. 1871. 392 TRESPASS. 34— Entry by permission of agent — Cutting lumber. Defendant had a license from the Crown to cut lumber in reur of land granted to the plaintifis. The plaintiffs' agent and manager in charge of their land pointed out to the defendant a line as the boun- dary of the plaiutifiii' land, and directed him not to cut over it The defendant cut lumber up to this line, believing it to be correct ; but i. was shewn by an- other survey that the line so pointed out to tho defendant was incorrect, and that part of the lumber was cut upon the plaintiffs' land. Held, That the defend- ant having entered on the plaintiffs' land and cut the lumber by permission of their agent, was not liable iu trespass for the cutting, though the agent had no authority to agree tt) a boundary affecting tiio plaintiffs' title to the land. Vernon Miniwj Vo. V. Fnacvtt, East. T.'lSTl. III. Personax. Property. 1— Tenant in common. Qitfere, W bother any and what act,><, short of the destruction of tho joint pro- perty, will enabli! one tenant in common to Bustiiin trespass against his co-tenant. W!. 4— Agreement— Violation. Where personal property of the defend- ant is in the actual possession of the plaintiff under an agreement between them, the latter may sustain trespass against the former for taking it away. Ihhncs v. Clark, Ber. 87. 6— Satlsftiotion— Judgment— Sheriff. Plaintiff brought an action against the Sheriff for taking his goods on an execu- tion against A. and recovered judgment, but not to the full extent of his claim, the jury having found that part of the goods did not belong to the plaintiff and were consequently liable to seizure under the execution. Plaintiff' afterwards brought trespass against the defendant who had indemnified the Sheriff for seizing the goods. Held. That the judgment against the Sheriff was a satis- faction for the wrong done to the plaintiff by taking the goods, and that he could not recover. A party cannot split up his claim for damages and proceed for a part of the trespass at one time, and part at another. Lawton v. Adams, East. T. 1862. 6— Master and servant— Belation. Plaintiff' was Chairman of the JionrJ of Agriculture, to superintend the erection of a Provincial Exhibition ; plaintiff had contracted to erect the building, but failed to complete it in time, and the committeu took possession of it in order to finish it. He left some boards on the ground, which it was necessary to remove before the opening of the Exhibition. Two days before that tinie one W. sold the boards, and they were taken away. W. informed the defendant thnt he had sold the boards, who said it was the host 'hing to do. Held, That the jury were justi- fied iu finding that the relation of muster and servant existed between the eoui- mittee and W., and that the sale of the boards was an act done by W. in tiio course of his employment. McKay v. BoHford, Trill. T. 1863. IV. Dam.vges. 1— Special Allegation— Expense of inquiry. In trespass for taking goods under an execution the declaration alleged its special damage, loss of time and expendi- ture of money in recovering the posses- sion. Held, That under this allegation, plaintiff could not recover the expense of an inquiry held by the Sheriff for his own information as to the right to the goods, and qumrc, whether such damago could be recovered in any case. Wihon V. Eills, Ber. 325. 2— Judge directing for small damages for plaintiff— Verdict for defend- ant— Lew trial. In trespass quare d. freyit the main question was the dividing line between the parties, on which the evidence was clearly in favor of the defendant; but he had driven a few stakes on plaintifi's land, for which the Judge directed n verdict ges; t; defend: trial. 6 3-Wilfu tiflc In trcs the pla going of tresp them to did so. proceed under tj cred for the two Hold, T certificat TRESPASS. 393 verdict for the smallest amount of dama- ges ; the jury, however, found for the defeudiint, and the Court refused a new trial. O' Flaherty y. Devine, fflL T. 1863. 3— Wilful and malicious trespass— Cer- tifloate— Damages. In trespass against several defendants, the plaintiff had forbidden them from going on his land, and again, after acts of trespass had been committed, notified them to desist, whereupon two of them did so. At the trial plaintiff elected to proceed against all the defendants, and, under the Judge's direction, only recov- ered for the trespass committed before the two defendants left, amounting to $2. Held, That plaintiff was eutitled to the certificate of the Judge ; that the tres- pass was " wilful and malicious." Mc- Millan V. Fairltf et al., 1 Tlini. 500. 4— Damages wlien held not excessive. In trespass for cutting a net with which the plaintiff was fishing in a public navi- gable river, where the defendant claimed an exclusive right to fish, as owner of the adjoining land, the jury gave a veixlict for $-0). Held, That the damages were not excessive, though the plaintiff stated the actual damage to the net did not exceed 82 Rose T. £efi/ea, 1 I/im. 109. 5— Conflicting eridence. Where in trespass there was conflicting evidence as to the quantity and value of trees taken from plaintiff's land, the Court refused to disturb the finding of the jury, oven though the damages ap peared Han. 230 large. Presmtt v. Walton, 2 6— Distinct lots— Title to one in de> fendant— No apportionment of damages. Where iu an action for trespass on two distinct lots of land, to one of which the defendant proved title, the jury gave a verdict for the plaintiff without auy ap- portionment of the damages, the Court ordered a new trial, unless the plaintiff consented to accept nominal damages. White V. Smith, i All. 335. 7— Splitting claim. A party cannot split up his claim for damages, and proceed for a part of the trespa.ss at one time, and part at another. See Supra III. 5. 8 — Special damage — Claim for — Notice of action. See Action at Law XI. 5 a. Action against Justice of the Peace — Nom- inal damages. See New Trial III. 18 a. 50 V. Assault and False Impbisonmknt. 1— Assault and battery— Felony. Where, in an action for assault and bat- tery, the plaintiff proves that the injury caused grievous bodily harm, and there- fore amounted to a felony under 1 Kev. Stat. c. 149, s. 15, the plaintiff will be non-Huited unle^a it appears that proceed- ings have been taken against the defend- ant for the criminal offence. (But see Wells V. Abrahams, 7 L. R. Q B. 554.) Schohl V. Kill/, ITU. T. 1862. See Criminal Law. Assault on Public Officer— -Damages held not excessive. See New Trial III. 18. 2— Justice of the Peace— Proceedings —Jurisdiction. A J ustice of the Peace is liable in an ac- tion for false imprisonment if he commits a person for trial who is brought before him on a criminal charge, without taking an examination respecting the charge, as required by law. An examination taken beyond the jurisdiction of the Province is a nullity. Nary v. Owen, Her. 377. 3— Oommitment— Place— Damages. In trespass for false imprisonment against Justices of the Peace who had exceeded their pov^er in committing the plaintiff for contempt to an improper place of im- prisonment, but who otherwise had re- ceived no greater punishment than he was liable to by law, the Judge offered to direct a verdict for nominal dam- ages, which the plaintiff refused, claiming substantial damages — whereupon the Judge ordered a uon-suit — the Court re- fused to set the non-suit aside. Arm- strong V. McCaffrey, 1 Han. 517. 4— Information- Omission of Christian name— Subsequent insertion. An information was sworn before the defendant, a Justice of the Peace, of the commission of an alleged offence by Garrison (the Christian name being omitted) ; the defendant afterwards filled in the plaintiff's Christian name, and issued a warrant against him, on which he was arrested. Held, That the war- rant was void, and the defendant liable in trespass. Garrison v. Harding, Trin. T. 1872. 5— Damages— Excessive fine— Impris- onment. In trespass against Justices of the Peace 394 TRESPASS. for false imprisonment, it appeared that the plaintiff, having committed an assault, was convicted by the defendants under the 1 Rev. Stat. c. 159, 8. 27, and fined £8, and, in default of payment, sentenced to a month's imprisonment, and that, hav- ing refused to pay the fine, he had been imprisoned for a month. Held, That as the imprisonment did not exceed that assigned by the Act for the offence, the pluictiff was only entitled to recover two pence damages under 1 Rev. Stat. c. 129, s. 11, though the fine was greater than the Justices had power to impose by the Act. Davis v. Raymond, Trin. T. 1865. 6— FubUo officer— Execution— De- lively. A commissioner of highways, who, in the discharge of his duty, procures the con- viction of a persou for ueglecting to per- form statute labor, does not make him- self a trespasser by delivering an execu- tion, issued by the Justice, to a constable, and telling him that if the defendant was arrested he thought he would pay, — the defendant being afterwards arrested nndcr the execution, which was defective. Vraiff. V. Giberson, 2 AU. 207. 7— Party miing out prooew— Directions —validity on race— Justification. A party who merely sues out a process and delivers it to an officer to execute, is not liable as a trespasser, though he m-iy be liable to an action on the case if there are not previous proceedings to wnTant the process. Carter v. Pvrrivyton, 2 All 226. If he gives special direction to the officer or takes part in the arrest, he is liable in trespass unless there is a reguLir judg- ment to authorize the execution. Ihui. A process regular on its face, is a ju.^tiiiv-c- tion to the officer. Ibid. 8— Justice of the Peace— Second execution. A Justice of the Peace is not liable to an action of trespass for issuing a second execution for a balance duo upon a judg- ment recovered under the Act 4 Wm. 4, G. 45, before the first execution is re- turned — the matter being within the Justice's jurisdiction. Stewart v. Hazen, 2 All. 254. Such an execution may be irregular, but is not void. Ibid. 9— Defective conviction and warrant. Where a Justice of the Peace has juris- diction to try a complaint, and there has been a regular information, but the con- viction and warrant of commitment are defective, he is not liable in trespass for anything done prior to the conviction. Sewell V. Olive, 4 All. 394. 10— Justification- Beasonable and probable cause. Application having been made to the defendant, a Justice of the Peace, for a warrant to summon a jury to determine on the necessity of a private road through the plaintiff's land, he issued a warrant under which a jury was tiummoned, but were unable to agree upon the amount of damages to the plaintiff. Another appli- cation was made, and another warrant issued by the defendant, under which a occond jury was summoned to determine upon the road, but having been resisted by the plaintiff in entering on his land, and threatened with injury if they did so, one of them made oath before the defend- ant that the plaintiff " had molested the jury" in the discharge of their duty; whereupon the defendant issued a war- rant against the plaintiff, on which he was arrested and detained several hours. Held, That though the entry on the plaintiff's land under the warrant might not have been justifiable, in consequence of irregularity in the proceedings, there was no want of bona fidet in the defend- ant, and that he had shown reasonable and probable cause for what he did. Stiles V. Brewster, 4 All. 414. 11— Constable-^Dutv— XSxeoution. A constable is liable in trespass, if he arrests a debtor under an execution issued out of a Justice's Court, (1 Rev. Stat., c. 137) before he has used reasonable dili- gence to find goods to levy on. Banter V. Maddox, 1 Han. 162. 12— Legpal adviser— Aiding— Imprison- ment illegal. Procuring, commanding, aiding or assist- ing in a trespass makes a person a tres- passer ; and it affords no defence to one who has been instrumental in procuring or promoting the imprisonment of ano- ther, under a warrant of a magistrate, that he was merely the legal adviser of the magistrate, the imprisonment itself being illegal. Thompson v. Hatch, 2 Kerr 425. Misnomer — Plea — Necessary averment. See Pleading II. 20. Justification — Pleading. See Pleading II. 16, 16. Amendmei TRUL. TROVER. 395 UcnaoDuble and probable cause. See Ac- tion at Law XI. VI Miscellaneous. Impounding Cattle — Evidence — General Issue. See New Trial III. 31. Attorney — Authority to issue execution. See Attorney V. 4. Pleading — Justification — Commissioners of Highways — Excess in laying out road — Plaintiff's case. See Evidence III. 19. Digging land — License from former owner — Inadiuissiblo Evidence under General Issue. Sec Evidence XIII. 4. Justification — Special Assignment — Dupli- city. See Pleading. License — De Injuria. See Pleading II. 17. Costs — Certificate — Separate j udgnient — Acquitted defendant — Special notice of defence. See Costs. Tenant against Landlord — Former adjudi- cation. See Action at Law VIII. 3. Jurisdiction — Justice of the Peace to try action of trespass to land. See Justice of the Peace. Agreement for sale of stranded ship. See Shipping Law 7. TRIAL. Abandonment on Trial of Cause. Sec Tres- pass II. 12, 13, 25. Cannot on trial, impeach validity of sale, on ground that execution is irregular. Doe v. Watson, 1 All. 675. Variance between judgment and recital in Sheriff's deed — Cannot bo taken advan- tage of at trial. See Sheriff's Deed 6. Variance in note and description in sum- mons — Summary action. See Variance. Tendering evidence at trial. Sec Evidence XL 6. Discretion in Judge as to reception of evi- dence — Re-calling witnesses See Evi- dence VIII.— New Trial III. 35. Amendment on Trial . See Amendment IV ■ Special counts— Particulars— Beoovery under common counts— Counsel opening case. Where a declaration contains special counts, with a count for money had and received, and the particulars also apply to the latter count, the plaintiff tuay give evidence under the count for money had and received, though his counsel did not claim to recover on that count io opening the case. Carrick v. Atkinson, East. T. 1863. Objection to proceedings in Probate Court — Remedy by appeal — Irregularity can- not be objected to on trial. See Deed 1.40. Defendant wishing to limit plaintiff's right to recover land — Objection must be taken ut trial. See Ejectment III. 11. Bankruptcy — Fraud in obtaining certifi- cate cannot be shewn on trial. See Evi- dence III. 18. Loss of document — Preliminary proof to admit secondary evidence, sufficiency of, a question for Judge to determine. See Evidence VII. 14. Dismissal of servant — Taking advantage of other grounds than those averred. See Master and Servant. Power of Judge on trial to direct verdict for plaintiff, subject to be set aside and verdict entered for defendant upon points reserved. This can only be effected by the jury finding a special verdict, when no consent is given. Hughes v. Suther- land, 1 Kerr 374. Justice of the Peace — Trial by different Justices. See Justice of the Peace IV. 4. Whether plaintiff haa made out a sufficient possession to entitle him to go to the jury, a question for Judge. See Trespass L6. TRIAL BY RECORD. See Pleading. TROVER. 1— Tenant in common- Joint owner. Qusere, Whether any, and what acts of a tenant in common or joint owner of a chattel, other than a destruction of the property will enable his co-tenant to maintain trover against him. Wiggins v. White, Bcr. 97. —Licensee— Crown land-Wrong doer. A person having a license from the Crown to cut timber on Crown land, can- not maintain trover against a wrong doer for timber cut and carried away by the H 396 TROVER. latter from off the liuiits of the licensee. (But see act 13 Vic. c. 7.) A'tr/v. Cvn- nell, Ber. 133. 3— Hiring horse— Felonious sale. A. hired the phiiutiff's horse to go ii certain distance, bnt went farther, and sold the horse under such circuuistAnces as to lead to the presumption that ho in- tended to steal the horse at t)m time of hiring. Held, That the plaintiff could not maintain trover against the defendant who had afterwards purchased the horse, until ho had done everything in his power to prosecute A. for the felony. (See Contra — White r. Spettigue 13 M. and W. 602. See further- -Judge bound to try issue on the record. Wells v, Abra- ham, 7 L. R , Q. B. 554.) Feme v. Mv- Aloon, 1 Kerr 111. 4— Bvidenoe of felony— Judge. Although the circumstances are not con- clusive evidence of felony, but proper for the consideration of a jury, the ques- tion of felony cannot be left to them in an action of trover, — it is the duty of the Judge to determine whether there is sufficient ^xv/wrtyJfc/e evidence of felony to render a prosecuticM necessary. IhliJ. 6— Licensee— Timber— Wrongful sale. Plaintiff having a license from the owner of land to cut timber thereon, contracted with A. to manufacture the timber and raft it for the plaintiff. Held, That the property in the timber vested in the plaintiff as Boon us it was cut without any delivery, and that he could maintain trover fur it agaiu.-it a person to whom A. had wrong- fully sold it. Heijee v. J'ertei/, 1 Kerr 43J». 6— Trustees -Absconding debtor - Vesting of property. The trtistees of an absconding debtor duly appointed under the Act 2(5 Goo. 3, ' 0. 13, may maintain trover for the value of goods of the debtor wrongfully con- verted by the defendant befor ) proceed- ings taken under the Act ; such right of notion being transferred from the debtor to the trustees b;; op»«ratioii of the Act. Jtltrhie V. Jiof/if, 1 Kerr 2<»4. 7— Shipping timber — Notice — Acqui- escence. A. delivered timber to IJ. under an agree- nicDt that B. should ship as much as he could, and give A. credit for the amount. B. shipped a portion of it, and gave A. notice to t4iko away the remainder ; but Bubscqueutly shipped ii further (|uanUty. Held, in the absence of any proof of acquiescence in the notice by A., That B. was not liable in trover for the timber shipped after the notice. Jliii/hcn y. SitlJicrlinuI, 1 Kerr 574. 8— Seizure by Crown — Proceedings stayed — Property- Subsequent taking by wrong doer. Timber, cut by plaintiff without licon.se, was seized by an officer for the Crown. and marked ; no proceedings were taken towards condemnation ; the ofiicer kopt no possession of it, and was afterwards ordered by the Government not to pro- ceed to condemnation, but there was no act of the Government by which the constructive possession was revested in the plaintiff, nor any actual possession uf the plaintiff subsequent to the seizuro. Held, That the plaintiff had no property in the timber to enable him to maintain trover against n person wlio took it wrongfully, subsequent to the seizure by the Crown. Tobiii v. Ilutchinwn, 3 Kerr 233. 9— Previous seisure— Possession-Title. The possession of timber which had been previously seized by the Crown for having been cut without license, is a sufficient title against all persons except the Crown, and the pemon so in possession may maintain trover against a stranger for taking it. ('oomltex v. Ifalhewai/, 3 Kerr 592. 10 ~ Ohurch Corporation — Trees severed. The property in trees growing on a globe is in the (/hurch Corporation, as ti.e owiysrs of the inheritance ; and they iiiiiy maintain trover for them if wrongfully severed, against a tenant of the Uoi'tor or any person acting under the ti'imiit's authority. Keetor etc, of Jlamjitnii v. Tititx, 1 A/f. 278. ll--Accepte 1 order for timber De- livery— Usage. B. drew an order on defendant, a pond keeper, in favor of R. for five hundred t^nsof pine timber, which the defundiuit accepted and credited 11. with the timlier in account. R. afterwards assigned nil liis property to the plaintiff. Held, in the absence of any proof of title to the tim- ber in B. ; or that ho had delivered it to the defendant, or of any usage in the tinjber trade relative to such aecept.inccx. That no property vested in U. by tlu' acceptance in any spocifio five humlrcd TROVER. 397 tons of timber, and thut the notion could not be maintained. Pollock v. Fislici; 1 All. 51'). 12— Assignment by deed— Property passing. Defendant iiad in his possession as a pond keeper timber bclon}j;iug to H., who while it was in defendant's possession, made u general assignment by deed of his property to the plaintiff. Held, That tiiis was an assignment of the property in the timber, and not merely of a chose in action, and thut the plaintiff, after ten- dering the amount of the plaintiff's lien on the timber, might maintain trover against him. Jack v. Eaijlcs, 2 All. 1)5. 13— Landlord— Tenant— Giis fittings- Executory agreement. An agreement by a tenant of a shop thut if the landlord would make ccrtiiin im- provements the tenant would put in gas fittings, and leave them there when the lease expired, is executory only, and vests no property in the gtis fittings in the landlord unless they are left by the tenant in the shop. It they are removed by the tenant before ho leaves, the land- lord cannot maintain trover for them. Diinu. V. a arret, 2 All 218. 14— Taking timber— Conversion. Timber belonging to the plaintiff in this I'rovince, being in the posscdsion of the men who manufactured it and who claimed u lien on it for their wages, was sold by them to the defendant, and taken into Canada at his request, where he caused it to bo attached and sold I'or p.iy- ment of the wages. Held, That the taking the timber into Canada was a conversion, and thut the plaintiff was entitled to recover tlio value of it, with- out deducting what the defendant had paid the men. McMullan v. Ritchie, 2 All. 242. 15 — Manure Not incident to land — Oonvorsion. Mnnun' in luvipson l.iml rnott'ie produce thereof) d'ifs nut pasw to the purcluH,ir of the ('i|uity I'f 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. Thommiu v. ]\'ahh, 2 All. " !). 16 Manure Landlord -Tenant. Manure lying in heap.s in a barn yard is a chattel whicli may he taken away by the out-going tenant, even utVer his ten- ancy has expired, and trover will lie for it, if held or taken away by the landlord. Fonhdij V. Barnes, 1 Ilaii. 450. 17— Goods of tenant— Refusal by suc- ceeding tenant. Where goods beh)nging lo the plaintiff were left on a farm of which he hud been tenmit, and the defendant who suc- ceeded him as tenant, refused to deliver tliem up without the consent of the land- lord ; but there was no evidence that the landlord had any claim to the goods or had given tlie defendant possession, or that he was holding them as the servant of the landlord — the Court refused to set aside a verdict for the plaintiff on the ground that the refusal did not amount to a conversion. liucl v. McElrot/, 3 All. 212. 1 8 — Though ft refusal by a servant to give up property in his po8.session 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 pro- perty obtaining the master's consent to the delivery. Ibiil. 19— Holding document for both parties. A. executed a bill of sale to the plaintiff, and delivered it to tho defendant, who agreed to hold it as the agent of both parties. llelJ, That the defendant's refusal to deliver the bill of sale to tho plaintiff, without the consent of A , was not a conversion, and that trover could not bo maintained. Dcver v. Myshrall, 3 All. 354. 20— Setting up right in third party- Defective claim. Plaintiff having cut timber without license on Crown land in Canada, brought it into this Province, and put it in pos,session of the defendants to be railed for him ; the defendants delivered it to M., who claimed it as having been cut on land licensed to him, but in Jaet his license had expired nt the time the timber was cut. Held, in trover for the ti.iiber, Th.it tho de- fendants could not s( t up a rigitt either in M.or in tlie (^niiinla (iovurnnient — M. having lit* legal right to the timber, and the (tovernment not having made any claim to it. Lc /id v. Frcihricton Hvom Compani/. 4 .1//, 1U8. 21— Allegation of one conversion- Evidence. In trover for several articles, tho plaintiff' may give evideneo of acts of conversion on several days though there is but one 398 TROVKll. cuunt iu tho declaration nlle<^iii^ one conversion. Ultkati v. Muffat, 4 All. 298. 22— Suffioienoy of possession. In trover tor timber cut by defendant on wilderness land described in u registered deed from B. to thn plaintiff, it was proved that for more than twenty years plaintiff had occasionally exercised acts of ownership over the land by ciittinji; 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 plaintiffhad sufficient possession to entitle him to recover against a person shewing no title. Vuates v. McAuley, 4 All. 521. 28— Bill of sale— Condition— Demand — Non-disolosure of title— Con- version. 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 tho bill of sale was to be absolute. A. after- wards sold the oxen to the defendant, and B. assigned his interest under the bill of sale to the plaintiff, who demanded the oxen of the defendant without inform- ing him of the as.signment of the bill of sale Held, Thi.t the defendant's refusal to give up tlie oxen was no conversion as against the plaintiff Sharp v. Iaiw- rencp, Mich T. IHG.'i. 24— Joint conversion— Evidence. Ijogs wore wrongfully cut on tho plain- tiff'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. Held, That this wis evidence of a joint conversion by tlic defendants at the time of the sale by 1*. tn T, /fniiltirks v. Titus, 2 L'liii 77. 26 — Tenant in common ~ Mixing of property. Sawing up logs of which the defendant is a tenant in common, and mixing the deals with others mo that they cannot be distinguished, is evidence ot conversion by one tenant in connnon against the other. Mr Kill/ \. i'rorhv,; llil. T. 18(11. 26 -Mixing property--PlaintitI''B wrong. I'luintiff cut timber, part on land belong- ing to tho defendant, and part on other land, and wrongfully mixed it with other timber belonging to the defendant, so that it could not be distinguished from the dofenilant's timber. Held, That as the mixing of the timber was the wrong- ful act of the plaintiff the defendant hud a right to the whole of the timber, and his taking it was not a conversion. Tucker \. Muirhcad, East. T. 18GG. 27— Appropriation— Assent— Property. Plaintiff' claimed timber under a letter written to him by A., the maker of the timber, stating that part of a quantity of timber in the river (which part was dis- tinguished by a particular mark) was for the plaintiff, and requesting him to send money and provisions to A. to enable him to drive the timber; plaintiff sent tho money and provisions to A, and furnished the marks of the timber to the defendants (a company incorporated for the purpose of picking up timber in the river and rafting it, when the marks were furnish- ed), and afterwards obtained a portion of the timber from them. Held. That the letter was an appropriation of the timber by A. to the plaintiff, and that his subse- quent acts were an assent to such appro- priation, and vested the property in him. MucphcrsoH v. Frcdericton Boom ('u., 1 I fan. 337. 28— Licensee— Timber out before license. A license to cut and carry away lumber from Crown laud gives the licensee m property in timber cut on the land be- t'ore tho license issued, tliou'.rh on the land at that time, and the licen.see cannot maintain trover for taking away the tim- ber. Carman v. McLcod. 2 J/an. GO. 20— Sheriff -Improper sale -Execution —Pees. A. issued an execution against li. under which a levy was made of Ji.'s goods but no sale, the execution being withdrawn, .\ second execution under anotlier judj;- ment was issuitd by A. against ]{., and tile Sheriff after selling goods to satisty that execution proceeded to sell other goods of B. to satisfy him for fees on the first execution. Held, That such sale by the Sheriff was a wrongful conversion and that trover would lie. Miller v. Wclilon, 2 Han. 188, Landlord and Tenant — Agreement us to fixturoti. See Fixtures. ]{ankruptr assignee- actidn fo Assumpe Agreemen — Pai The St. Company the same Act of A by Act oi construct] to Lower complete i ly cmpow agree wit accept the dertaking, etc. Und an agreem tho St. J Company, the defen Railway a incorporat panics' Ac to convey force Com St. Andre of class A and uianuj lands, rigl ject to cei that the T plete the discharge drewa aud class A. schedule t( liabilities the follow the contrii The Act uicnt of I undertukin Itnilroad inanugomei property, r duties, obli be absulut TRUSTS. TRUSTEES. 399 Principal nnd Agent. Sec Diiuiiif^es — Bill of Exchange Sec Bills and Notes IV. 2. Selling Security before time. See Bills and Notes V. 19. Bankruptcy of party — ^'roperty vesting in aesignce — Riglit to maintain Trover, or action for money had and received. See Assumpsit III 37. TRUSTS. Agreement— Undertaking— Conditions —Party— Contract. The St. Andrews and Quebec Railroad Company and class A. shareholders in the same Company, were incorporated by Act of Assembly 6 Wni. 4, c. 3i, and by Act of Parliament, for the purpose of constructing a railroad from St. Andrews to Lower Canada ; but being unable to complete the road, they were subsequent- ly empowered by Act 19 Vic. c. 70, to agree with any company authorised to accept the same, for a transfer of the un- dertaking, and of all their lands, property, etc. Under the authority of this Act, an agreement was entered into between the St. Andrews and Quebec Railway Company, the class A. shareholders, and the defendants, the N. B. and Canada Railway and Lund Company, (a company incorporated under the Joint Stock Com- panies' Act,) whereby the former agreed to convey to the latter (called the Trans- feree Company,) the undertaking of the St. Andrews & Quebec Railroad Co., and of class A. shareholders, and the control nnd management thereof, and all the lands, rights and property thereof, sub- ject to certain conditions : {in(ir alia,) that the Transferee Company should oom- ploto the railroad, and should forthwith discharge the liabilities of the St. An- drews and Quebec Railroad Company and class A. shareholders, specified in the schedule to the agreement. Among the liabilities specified in the schedule, was the following — " Jjiability, (if any) to the contractors in Now Brunswick." The Act declared that when the agree- ment of transfer was executed, all the undertaking of the St. Andrews & Quebec Railroad Company and the control and uianagoment thereof, and all their lands, property, rights and effects, and all their duties, obligations and liabilities, should bu absolutely voiited iu, and imposed uu the Transferee Company. The plaintiff had contracted with the St. Andrews & Quebec Railroad Company to build a portion of their road, and before the agreement of transfer was executed, had commenced a suit against them, which was pending at that time, and a decree was subsequently made in fiivor of the plaintiff After the transfer, the St. Stephen's Bank advanced money to the Transferee Company, and obtained judg- ment against them, and issued execution, under which the lands transferred to them by the agreement, were levied on. Held, That the plaintiff not being a party to the agreement, no trust in his favor for the amount due him, was created there- by, and that he had no lien on the lands which vested iu the Transferee Company under the agreement; but that the Transferee Company merely stood in the place of the St. Andrews & Quebec Rail- road Company and undertook the dis- charge of their indebtedness out of tho general funds of the Couipany. Held also, That the word •' condition " in tho agreement wus to be read as a term of the contract, and not as a contingency, which, in case of failure of performance, would work a forfeiture of the estate granted to the Transferee Company. Jit'ouhfidd v. The N. B. & Vunmla liailwni/ and Land Company, Trin T. 1871. Devisee of residue of estate in trust — Con- struction of will See Will 6. Devise in Trust. See Will. Infant joining in deed with cestui quo trust. See Infant. TRUSTEES. See Absconding Debtor. Trustees remaining in office. Soo Bank. Conveyance to trustees — Provision for other trustees being nominated and appointed — Legal estate. See Deed III. 3. Oonveyanoe by. A person having tho legal estate in land may, by oouvcyanco at law, pass such estate, though it was given to him iu trust. Doe v. Gilbert, 1 All. 520. Devise to two persons iu trust — Conveyance by one— Ettect. See Will 12. Supervision of proceedings of trustees. See Supreme Court iu Equity. °.l 400 USE AND OCCUPATION. VARIANCE. llclatiun of trustee and cestui que trust created. See Equity 2 a. TRUST DEED. See Deed. UJiTRA VIRES. Sec British North America Act 1867. UNDERWRITER. Sec Insurance. I NITED STATES CHRIIENCY. Note payiible in. See Rills and Notes I 15. USAGE OF TRADI'3. See Custom and Usage of Trade. " Contract. UNCE RTI FIC ATED ATTORNE Y. See Attorney. USK AND OCCUPATION. Defendant marrying widow of ten:int — Lia- bility for rent. See Husband and Wife I. 5. See Landlord and Tenant. Wharf built without authority — Vessel lying. Sec Action on the Ca.se IV. 3. 1— Agreement to sell— Recission of. The plaintitf reiMivered judgment in eject- ment against tlie defendant, but before issuing a writ of possession, agreed to sell him the land, which agreement the defendant afterwards refused to complete. Held, That the defendant was liable in an action for use and occupation, for his holding since the refusal to complete the purcha.^e. l\irki'.r v. /'Jiiijfdiu/, 8 A/f. il4(). Qitivn\ Whether, without such agreement, the plaintiff could waive the turf, and recover for the use and occupation sub- sequent to the judgment. Ihid. Omission in Statute — Demise by Deed. See New Trial 111.55. a- Pew—Defenoe - Joint oooupation. Assumpsit lies for the use and occupation of a pew, and it is no defence under the general issue that others occupied the pew jiiintly with the defendant. 7/v/.<- tifg i>/ »SV. AniitrwH C'huirh v. Fviyufoii, 1 llmi. 'ITA. 8- Holding by perminsion Necessity of ovidenoe of. To maintain an action for use and oecu- putiou, there must be some evidence of u holding by permission of the plaintiif ; therefore, where there is no evidence of any contract or negotiation, and it appears that at an interview between the parties about the property, the defendant refused to make any arrangement, and claimed the title, it was held that the action would not lie. McCalli/s. Wunl, East. T. LS63. 4 — The right to waive a tovt, and bring an action rx mufnutu, applies only to actions for money had and received. Ibid. USES (STATUTE OF.) The 27 Hen. 8, c 10, Statute of Uses is in force in this Province. Doe d. Iluniiiiii/- (on V. Mcl<\tifi/eti, Ber. 153. USURY. See Bills and Notes V. 34. Mortgage - Broker. Where a mortgage on real estate was given by A. to B. for the purpose of being sold, and afterwards assigned to ('. who took it at a discount of 10 per cent., B., wh(» acted merely as broker in tim tr.insaclion, receiving one per cent. Held, in a suit for foreclosure against the purchaser of the e(juity of redemp- tion, That the transaction was usurious, and that even i!' defendant was only the colorable purch.iser it would not affect the case. Jardiiw uml vllu'rs v. J/c. Wdliinm, 1 JJ-in. 579. VARIANCE. See Amendment — Bail — Bond — Bills and Notes — Conviction — Criminal jjaw — Pleading — Record. 1— Proof -Allegation. In an action on a written nienioranduin, whereby the defendant, f )r " valuu received, promised to pay the plaintiff a certain sum in curnnt bank bills," it is necessary not only to allege tlui actual consideration, but the proof mu.st cones- pond with the alK^gations. Whltmi/ v. Miir/t-H, 1 Kirr 17'J. 2 -Bxeoution— Judgment— Sale. A //. J'li. was for £47 2s !Kl., and the judgment upon which it was founded ' r £40 lis. ''teement to purchase land, the ph" -saot recover the amount of the ■r.]j, oy agreed to be paid for the Hl,; uui uiilv sach damages as he has sustained by f Ite breach of the agreement. I\/slry V. GiUft'pie, Mich. T. 1872. purchase. See 1.3 a. Agreement Rei... . to Landlord and Tcndn; As to recovery of deposit on failure of title. See Assumpsit III. 19, 24. VENIRE. See Error (Writ of) 3. See Jury. Sheriff interested. Where the Sheriff is interested, the jury process must bo directed to the Coroners of the county, if more than one; and though it may be executed by one Coroner, the return must be in the name of the whole of them. Noble V. Temple & Pel- ton V. Temple^ 1 Han. 274. A venire directed to one of the Coroners of a county is bad, unless the others are in- terested. Ibid. Coroner— Interest. In an action for calls on stock, the Coroner who summoned the jury was a stock- holder, but, before receiving the ventre, transferred his stock, which was not all paid up, to the president of the company. The Act of Incorporation declared that no shareholder snould be entitled to transfer his stock, unless all calls were paid. In summoning the jury, the Coro- ner questioned them as to their views in regard to railways, and was guided in his ■ewction by their answoni. Hold, That ho had not divested himself of his inter- est, and was not an impartial officer, and there must be a venire de novo. Wood- stock Ra.May Co. v. Ttipper, 1 Han. 454. Common Venire, when suffioient— Limit bond. In an action by the assignee of a limit bond to which non eat factum is pleaded the common venire to try the issue is sufiB- cient) and the plaintiff need not have damages assessed, but may take a ver- dict for nominal damages, and issue eie- cution for the amount of his debt. Mc- Elroy V. Oetty, 1 Han. 261. Motion for venire de novo may be made in the same manner as a motion for a new trial. See Felton v. Noble, 1 Han. 274. VERDICT. See Practice— New Trial. Evidence of amount of original debt. See Mcllhaney v. Wiswell, Ber. 67. Postca on. Sec Replevin 4. Judgment not signed, verdict cannot be pleaded in bar between same parties. See Pleading II. 41. VEXATIOUS PROCEEDING. Staying Proceedings. See Second Action. VIEW (JURY OF.) Jury lodging with plaintiff. See New Trial III. 46. VOLUNTARY CONVEYANCE. See Deed. See Election. VOTE. VOYAGE. See Insurance — Shipping Law. WAGER. Deposit of money — Horse race. See Action at Law I. 3. WAGES. Action for. See Assumpsit— Shipping Law. WAIVER. An underwriter may waive the production of preliminary proof of interest in the assured by objecting to pay the loss on a WAIVER. WARRANT OF ATTORNEY. 403 different ground. Dimock v. New Bruns- wick Marine- Assurance Co., 3 Kerr 654. See Insurance 9. Waiver of proof of lose. See Insurance 33 a. An objection to service of a notice of motion is waived, if not taken before the argument commences. Wetmorey. Levy., 4 All. 510. Waiver of provisions of Act of Parliament cannot be presumed. Kerr v. Bums, 4 All. 604. Waiver of privilege — Witness. See Ar- rest 5. Waiver of Tort. See Assumpsit III. 26, 37. Sec Use and Occupation 4. Waiver of Notice of Dishonour and Pre- sentment. See Bills and Notes III. 6, 7,8,9. Waiver of Laches — What not a waiver. See Bills and Notes IV. 12. Waiver of Irregularity in Affidavit to hold to bail. See Bail 22. Waiver of Bailable Capias stating no cause of action. See Practice IV. 1. Waiver of Notice of Render. See Bail 35. Waiver of objection to Commission ad- dressed to four persons, being executed only by three. See Evidence IX. 8. Waiver of objection to evidence of justifica- tion under plea of not guilty. See Evi- dence XI. 23. Waiver of right to sell real estate under will — License. See Executors, etc., II. 3. Waiver of irregularity in proceedings — Giving cognovit. See Cognovit 3. Waiver of service of summons. See Justice ofthe Peace IV. 16 a, 17. Waiver of want of signature of defendant to offer to confess judgment. See Judg- ment II. 5. Waiver of irregularity in service of rule — Counsel appearing. See Practice VII. 2. Waiver of want of precipe — Appearance. See Practice VI. 42. Waiver of want of affidavit — Taxation of costs — Attendance. See Costs IV. 68. Waiver of irregularity — Intitling declara- tion — Pleading. See Practice I. 3. Juror taken ill — Swearing another in his stead — Pefeodant's counsel addressing jury — No waiver of irregularity. See Jury 9. Counsel making defence — Cause called on by surprise. See New Trial II. 37. Signing interlocutory judgment — Defend- ant's attorney in contempt — Ignorance of fact by plaintiff. See Practice VII. 11. Irregularity in signing judgment— What not a waiver of. See Practice VII. 12. Defendant not filing demurrer — Plaintiff's solicitor accepting copy, no waiver- See . Practice in Equity I. 10. Defence not pleaded as required by Act 13 Vic. c. 32— Bight of plaintiff to waive pleading. See Replevin 7. WAREHOUSEMAN. Liability for goods deposited, given up con- trary to instructions. See Bailment 3. WARRANT. See Arrest — Justice of the Peace< — Ab- sconding Debtor. WARRANT OF ATTORNEY. Entering up judgment— Leave. See Prac- tice V. 36. l—Oonsideration— Severable— Setting aside. If part of the consideration for a bond and warrant of attorney is good and severable from the bad ; the Court will only destroy the effect of the bad part. Secord v. Green, 1 All, 41. Where in answer to an application to set aside a warrant of attorney and judg- ment thereon for fraud, the plaintiff shewed a good consideration for part of the demand, though the remainder was not satisfactorily explained, but no collu- sion appeared, the Court dismissed the application without costo, the plaintiff consenting to reduce his demand to the sum proved. Ibid. It is not a sufficient ground for setting aside a warrant of attorney founded on a good consideration, that it was executed by the defendant without the privity or request of the plaintiff, if he afterwards accepts it and avails himself of the security. Ibid. 2— Judgment— Old warrant— Betting aude. A judgment signed under a Judge's order upon n warrant of attorney more than n 404 WARRANT OF ATTORNEY. year old, will not be set ai«ide, unless it appears that injustice has been done, though the affidavit, ou which the order was made, may not have been strictly sufficient ; particularly where the defend- ant's affidavit supplies the alleged defect Smith V. LeBurgue, 1 AU. 266. 8— Application to set aside—Answer. It is no answer to an application by a creditor of the defendant to set usido a judgment on a bond and warrant of attorney given by him to the plaintiff, on the ground of fraud and want of consid- eration, for the plaintifiF to state that tlfe bond was given for the amount of a pro- missory note given by the defendant, of which the plaintiff was the holder, with- out stating in what character, under what circumstances, or at what time he became the holder, and what considera- tion he gave for it. Bacon v. Hoar, 1 AU. 664. 4— Continuing security. The defendant owed the plaintiff about £200, and requiring further advances from time to time, applied to the plaintiff, who agreed to uiake them on receiving sufficient security; the defendant there- upon gave the plaintiff a bond and war- rant of attorney for ,£1855, conditioned for payment of £927 14s , on which judgment was entered up. Held, That the judgment was valid us a continuing security, and could be enforced for the amount really due on a final settlement between the parties, and although, at some period of their dealings, the bal- ance might have been in favor of the defendant, the judgment was not thereby satisfied, if such was not the intention of the parties. Held also, That a want of defeasance cid not render the warrant of attorney void, hunt v. E»tabrook», 3 Kerr 144. 5 — Defendant, who, in December 1868, owed plaintiff 81,800 for supplies, gave him a Bond and Warrant of Attorney to confess judgment for $10,000. The de- fcasanoo stated it to bo given to secure the re-payment of the $1,800 due, and " such further advances in the whole not exceeding $5,000, as the said Eaton may advance to the said Lawrence." Plaintiff having entered up judgment upon the Bond and Warrant of Attorney, in June 1869, issued execution f()r 83,417. On a motion to set this execution aside, de- fendant in his affidavit alleged that ho shipped lumber to the plaintiff to satisfy the judgment, and had a settlement in 1867, when plaintiff was indebted to him, and that the Bond, etc., was not given as a continuing security. The plaintiff alleged it to be a continuing security, mid denied that there had been any settle- ment. From December 1865 to Deceiu. ber 1868, the plaintiff and defendant had transactions to the extent of over 830,000. Held, per Weldon and Fisher, J. J., 'I liat it not being clear that there had been :iny settlement, and there being nothing in the defeasance to prevent it being a continuing security, the plaintiff' was entitled to his judgment. Eaton v. Lawrence, 2 Uan. 85. 6— Creditor taking for larger sum than due. A Bond and Warrant of Attorney, taken by a creditor for a larger sum than is due to him, are void as against other creditors, under the Stat. 13 Eliz. c. 5, and will, together with the judgment thereon, be set aside on the application of another creditor, whose debt may be defeated thereby. Bigtjs v. Eagles, Trt'n. T. ±BM. 7— Marking— Initials— Omission. The omission by an attorney who signs a confession under a warrant of attorney, to add the date of signing and to murk the initials of his name apon the warrant of attorney, as required by the rule of Trinity Term 1857, does not render void a judgment signed on such confession. Levi v. Muzcrvll, 3 All. 598. S—Need not be under seal— Recognition —Equities. A warrant of attorney to confess judgment need not bo under seal. Hutchinson v. Johnston, 4 All. 40. A bond and warrant of attorney under seal, were executed by A , in the name of himself and B., with a dcfcazancc stating that the warrant of attorney was given to secure the plaintiff for advances made and to be made to A. and B., in carrying on their shipbuilding operations, and tiiat the plaintiff might sign judgment and issue execution, from time to time, for whatever amount A. and B., or either of them, should then bo owing for such advances. Held, That as the warrant of attorney need not be under seal, a judg- ment signed thereon would bind H. if he recognised it, though A. had no authority to execute it. Jhiil. A recognition may be implied from the conduct of a party — as where, knowing Defendant i WARRANTY. 405 of' a warrant of attorney and judgment against him, he uUuws them to stand fur three years without objection, and con- tinues to deal with the plaintiff on the security of tliem. Hutchinson v. Johns- ton, 4 A/l. 40. A party applying to the equitable juris- diction of the Court, to be relieved from a judgmcDt, must do what is equitable towards the other party. Ibid. Ordering issue to bo tried — Doubtful fact. See Practice XII. Defendant in custody. See Practice VII. 6. Attorney taking warrant of attorney. See Attorney X. 10. Suspension of remedy. See Judgment. Judgment on — Setting aside — Costs. See Costa X. Ilardi/ v. /Vincc, 3 Alt. 264. WARRANTY. Damages — Evidence in reduction. See Damages II. 2. Implied warranty — Breach of. See Deed V. 3. Insurance — Answers to questions. See Insurance 39. 1— Suffiotent evidence of. lu an action on the warranty of horses u conversation just before the delivery between the parties, when the plaintiff said, " You say these horses are sound," etc., and the defendant replied, " Yes, they are ; " coupled with a subsequent refusal of the defendant to take back the horses, "because they were as he warranted them," are sufficient evidence from which the jury may infer that a warranty was given at the time of the sale, no witness appearing to have been present at the sale. Libbi/ V. Nesbit, 1 Kerr 362. 2— Representation— Question for jury. Where at the time of a bargain between the pjirtios for the siilo of timber, the quantity of which could nut be then ascer- tuinud, the defundaut stated that he " knew the timber to be good, and would make it good — that there had been an opportunity of examining it as it lay on the brow," shortly after which the plain- tiff took the timber, which turned out mostly rotten and worthless, and the de- fendant had aflerwnrds said that he had sold 101 tuns fur £100, which appeared to bo the full price for good timber. Held, That it was a question for the jury, whether the representation amount- ed to warranty, and that they might infer that a sale took place at the time of such representation. Irvine v. Goo circumstances to see if the words were sensible if applied to the illegitimate grandson. 2nd. That the words were ambiguous, and that evi- dence of the instructions given for the will was admissible to shew which of the grandsons was intended; and that the intention was a question f m ihe jury. Ihid. 3— Estate for life. A testator, after bequeathing to his wife all his personal property, gave to her all the rents and profits that should be de- rived from the lands at G. or elsewhere, that he should bo possessed of at the time of his death. He then gave to his brother J. all the lands that should belong to him at his death, situated at G. or elsewhere, and in the event of sur- viving his brother J. he gave all the 408 WILL. lands that should belong to him to hiH uiecca. Held, That the words of the devise gave J. only au estate for life, and that no intention could be gathered from the will to extend it to an estate in fee. Doe v. Green, 2 AU. 314. 4 — Testator being seized in fee of the land after mentioned, devised (before the Act 1 Vic. c. 9) as follows : " I give and be- queath to my wife the income of all my real estate during her life, and after her decease I give and bequeath to my son Benjamin F., my son Juuies G., and my son Isaac P. my two lot;^ of laud and the buildings thereon in Duck Street, to be equiilly divided between them." Held, That the sons only took life estates in the two Ixts after the death of the wife. Doe V. Stan OH, 2 AU. 632. 5— Devise in trust for wife— Conditions — Bemainder. A testator after directing that so much of his estate as was necessary, should be 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 be- nefit of his wife during her life or widow- hood, and pay t« her the income thereof; and after her death or marriage, then to be divided among the testiitor'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 esttite terminated, and the testator's children took the estate in remainder. Due v. Dn'sroU, 4 AU. 170. 6— Estate for life— Children. A testator devised as follows : " Also, I give to my son S. H. Q. the use of my farm (describing it), also to his lawful children, and in case of his death without children, then to be equally divided be- tween my five daughters (naming them) and their heirs for ever." When the testator died. S. H. Qr. had no child born ; but his wife was then enci'ente, and a son was born shortly afterwards. S. H. G., at his death, left this son and four younger children surviving him. Held, That S. H. G., by this devise, took an estate for life, and at his death, all his children then living, an estate in fee. Gourhy et al. V. GUbert et al., 1 Hun. 80. 7— Implioation— Deed. A., by deed dated 2nd April 1853, con- veyed to his daughter a farm, described as the property purchased by him from B., except a part that he had before leased, to hold the snnie during his life; and after his decease, he thereby gave, granted, bargained and sold, to his said daughter, her heirs and assigns, '* all the above mentioned premises, and every part thereof." The part excepted had been leased by A. to T. in 1851, for five years, with a covenant to renew or pay for im- provements. In January, A. made his will, stating (^inter a/ia) as fc' • " I having already conveyed to nij iter K. S., her heirs and assigns, by way of advancement, subject as in the deed thereof is mentioned, all that farm or tract of land situate, etc., formerly pur- chased by me from B., with all building's, etc., to hold td per- sonal estate to his wife durinf life or widowhood ; but, in case f rried again, he willed that she should >. . .e only his personal property with his farm at Q., which she might sell at her discre- tion ; he then devised to certain of his relatives the whole of his real property, of whatever nature and wherever situated, except the farm in Q. Held, That this condition was not void as being in res- traint of matrimony, and that the widow's estate in the land therefore ceased on h;^r marriage. Doe d. Liviwjstone v. Vorriv, 3 Kerr 450. Held also, That ejectment might be main- tained by the remaindermen against the person who married the widow without any demand of possession. Ibid. The will contained a clause that any two of the devisees in remainder (some of whom were under age) should have a right to purchase the land at a valuation to be made by the executors. Held, That this did not prevent those devisees who were of age from disposing of their shares to a stranger, who might thereupon main- tain ejectment against a person wrong- fully in possession. Ibid. 0— Stock— Meaning of word. A ttistator devisedfa farm to his son, and WILL. 409 by a codicil to his will, directed that the horses, stock, and farmiDg utensils on the farm, should remain thereon for the benefit of the farm; adding the words " which I do give and bequeath with the said farm." Held, That the word " stock " was not confined to live stock, but included the hay and crop grown on the farm, and which had been severed at the time of the testator's death. Wetmore v. Ketchum, Mich. T. 1862. 10— Devise in trust— Charge— Payment of debts. A testator directed that the residue of his real and personal estate should be divided into nine equal parts, and gave one-r'ntli to his executors, in trust to apy^'y ihc rents and income thereof, for the support and education of his grandson, M. B., till ho caui:< of age, and then to convey the same to him absolutely ; but in case his grandson died before ho came of age, then such ninth part to be divided among the testator's children, share and share alike. By a codicil to his will, the testa- tor declared that such devise in trust for his grandson, was to be held subject to the payment of a mortgage given to the testator by his deceased son W. H. B. (the father of M. B.), and to the other debts due from the estate of W. H. B. After the mortgage was given to the tes- tator, W. H. B. conveyed the land on which it was secured to a trustee in trust to sell, and, in the first place, pay all his debts, and apply the balance to the use of his wife and son. M. B., the testator's grandson, died before coming of age. Held, That the testator's children, to whom the ninth was devised in case of the death of M. B., took it subject to the payment of the debts of W. H. B., and not merely as an auxiliary fund in case the property conveyed by W. H. B., in trust for payment of his debts, should prove insufficient. Botsford v. Bostford, Trin. T. 1866. 11— Devise— Vested estate— Limitation over. A testator devised to P., his second wife, one-half of his real and personal estate, and directed that the children of his second wife should remain with her and enjoy all his real and personal estate till they were of age ; after which, the other half of his estate should be equally divi- ded between the children of his first wife ; that the children of his first wife should assist his wife P., and her children, in all 52 the work necessary to bo done^n his real and personal estate, till the children of his wife P. should be able to do the work themselves; and if the children of his first wife would not assist his wife P. and her children, they should have no part in his estate ; but it should bo given to those that would assist his wife P. and her children in the work which should bo necessary to be done on his real and per- sonal estate. Held — 1st. That the chil- dren of the first wife took a vested estate in remainder in half the testator's land, after P.'s children came of age, dependent on the performance of the condition; 2nd That the condition to assist P. and her children was a condition subsequent, and that before the estate of the children by the first wife could be forfeited by non-performance of this condition, it was necessary to shew a request for assistance by P. and her children. Doe d. Myers V. Balineau, East. T. 1864. Quxre, Whether the limitation over, in case of nou-perforuiauce of the condition, was not \ Old for uncertainty. Ibid. 12— Devise to two persons in trust to sell— Conveyance by one. Where the devise was to two persons in trust to sell, and only one conveyed to the defendant, the other refusing to act, that conveyance passes at least an undi- vided moiety of the estate, so as to justify the entry of the vendee. Quaere, Whether the oral disclaimer of a devised estate is sufficient. Hamilton v. Love, 2 Kerr 243. 13— Estate— Mortgage in fee. By the devise of an estate, which the testator has previously mortgaged in fee, nothing passes at law. BeVeber v. Andrews, 2 Kerr 604. 14— Undue influenoe—Inoai>acity— In- tention— Evidence. Where a will was contested by the heir- at-law, on the ground of undue influence by the devisee with the testator, but no evidence thereof was given, the Judge should not leave such a question to the jury. Doe ex dem. Levi v. Samuel, 1 Han. 265. Letters written by a testator to his relatives before making his will, stating his inten- tion to leave his property to them, are not admissible in evidence to defeat a will disposing of his property to another per- son ; though the will is attacked on the r 410 WILL. WINDING-UP ACT. ground of the testator's incapacity, as being in extremis at the time of its exe- cution. Doe ex dem Levi v. Samuel, 1 Han. 266. Trespass — Life estate in saw mill. See Trespass I. 17. 16— Sividenoe— Certified copy of wiU. Setnble, That a certified copy of a will cannot be given iu evidence under the 1 Rev. Stat. c. 112. C'onnell v. Haley, 4 All. 636. Will — Revocation — Previous contract. See Contract 14. 16 — Executors — Liability as contributories — Bank Stock undisposed of — Payment of legacies under Will not allowed against their contingent liability to calls. See Winding-up Act. 17— Legatee— Aotion— Certain legacy. A legatee may maintain an action of debt against an executor for a certain legacy given by his testator. Livingstone v. Powell Bvr. 225. IS-Devise subject to payment— Action. Where a devise of land is made to B , subject to the payment of a sum of money to A , and B. ac^epto the devise. Qumre, Whether an action at law will lie under the Act of Assembly or at common law for recovery of the money ? Dc Veher V. Andrews, 2 Kerr 604. 19— Legacy— Married woman— Repre- sentative— Aotion. If a legacy is bequeathed to a married woman, who dies before any act done by husband to reduce it into possession, he can only maintain an action for it as the reprefieutative of his wife, though ho may be beneficially entitled to it. (hllins v. Ctthir, 2 All. 103. Profits of Bank Stock — Payment to execu- tor — Action. See Assumpsit III. 14. Pleading — No averment of leoeipt of mo- ney. See Pleading I. 25. 20— Beferenoe— Inquiry into receipts. The plaintiff and defendant were execu- tors of A., who bequeathed a legacy of £50 to the plaintiff's wife, charged upon land devised by the will to the defendant. On a bill filed for payment of this legacy, it appeared that the plaintifiF, as executor, had received assets belonging to A.'s estate, which he had not accounted for, and that the defendant had in oonso- quence been obliged to charge the real estate devised to aim, to raise 'noney to pay the testator's debt. At the hearing a reference was directed to inquire what moneys belonging to the estate had been received by the plaintiff, and how he had applied them. On appeal by the plaintiff from this order — Held, That the inquiry was proper ; and that if the plaintiff had caused the fund from which the legacy was to be paid, to be used for the pay- ment of the testator's debts, the defend- ant should hold that fund discharged from the legacy, or so much thereof as the plaintiff had virtually received from the assets in his handu De Veber v. ^n- drews, 3 All. 383. 21— Creditor- Bequest to— Aotion. A bequest by a debtor to his creditor of a legacy to the amount of the debt, pay- able out of the proceeds of certain pro- perty which remains unsold, is no defence to an action by the creditor for his debt. Bishop V. Robinson, 1 Han. 68. 22— Legacy— Bill to recover— Personal estate— Insufficiency. Qusern, Whether, if in a suit to obtain payment of a legacy, the bill shews the personal estate insufficient for payment of the debts, it must not also shew that the legacy was charged on the land, if the plaintiff seeks payment therefrom. Wallace V. Woods, 1 Han. 230. • WINDING-UP ACT. 1— Judge's order— Authorising calls, evidence- Judge's signature. In an action against a stockholder for calls under the Winding-up Act, the order of a Judge of the Supreme Court, authorising such calls, is prima facie evidence of the defendant's liabi'ity. Mc- Kcnzic, Curator etc. v. &ovil, 2 Han. 6. 2 — A Judge at nisi prius is bound to take judicial uuticc of the signature of another .T'adgo of the Court, in an order made un- der the Winding-up Act. Ibid. 3— Stockholders— Liability. The stockholders of the Westmorland Bank, by their charter, in addition to the liability in respect of the stock hold by them for payment of the debts of the bank, are liable iu their private and individual capacity for an amount equal to the sum of their stook. McKenzie, Owatur of Westmorland Bank v. Wisteell, 1 Han. 603. 4— Bxeoutora-Liability— Register. The exeoutore of the estate ofT). invested a portio their ovi the estai received sentativc the stoc taken oi testamen stock cei and she t but no ( of the I and bye- the estat by the J\ for the s the regii prima /c right in stituting entitled -Bxeoutors— Liability. A testator died possessed of Bank Stock, which his executors allowed to remain undisposed of, and received thn dividends. By the terms of the Bank Charter the stockholders 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 Bank suspended payment, and was wound up under the Act 27 Vic. c. 44, and a call made on the exe- cutors as contributuries. Held, That they were liable therefor in their repre- sentative capacity, and that the payment of legacies under the will could not be allowed against their contingent liability to calls under the charter. McKenzie, Curator &c. v. King, Mich. T. 1871. See Lights. WINDOWS. WITNESS. 1— Soientiflo WitnoBS— Questions. A scientific witness cannot be asked ques- tions, the answers to which are based upon previous evidence given by other witnesses, and upon which conclusions are drawn which are for the jury to de- termine. Kei/ V Thomson, 2 Ifan, 224. 2— Joint indictment— Wife of one pris- oner oflbred as witness for another. A and B wore tried together on a joint iudictmont for assault on a peace officer and the wife of A was off'ered as a wit- ness to disprove the charge against B. Held that her evidence was properly re- jected, but had the husband not been on his trial, she would have been a compe- tent witness. The Queen v Thomson and Conray, 2 Han. 71. (See also the Queen v. James Thomson et al. L. 11. C. C. vol. 1, page 377.) 8— Deceased witness— Evidence on former triaL Where the evidence of a witness taken on a former trial in the same cause and since deceased, was read from the J udge's notes, the defendant's counsel offered evidence to shew a statement made by the witness while giving his evidence in the presence of the plaintiff. Held, That the evidence was properly rejected. Pre&vott V. V/alton, 2 Han. 230. — Credibility of— Cause left to jury upon. Where the maker of a promissory note set up infancy as a defence against the indorsee, and the only witness to prove the infancy was the payee of the note, who was a brother of the maker, and who hud himself indorsed it to the plain- tiff: the Court refused to disturb a verdict in favor of the indorsee, although the witness was not contradicted or otherwise discredited than by the above circumstances, the Judge having left the case to the jury upon the credit of the witness. Bmjhee v. McDonald, 2 Kerr 61 . — Where a cause depended on. the testi- mony of one -witness, whose credibility was properly left to the jury, and they found a verdict against his evidence, the Court refused to grunt a new trial. Wortman v. Marter, 3 All. 309. 6— Holding communication with party in siiit. Where a witness under examination de bene esse before u Judge had held com- munication relative to the suit with one of the parties during an adjournment of the examination, notwithstanding a cau- tion to the contrary given him by the Judge, it was held not a sufficient ground for suppressing the examination. Doe dem Beatty v. Keillor, 2 Kerr 643. -Contempt— Attendance-Subse- quent Absence. A subpcuua to attend on the 10th Sep- tember, and HO from day to day until the cause was tried, was served on the 11th September, and the witness attended for several days, and knew the cause was 412 WORDS (MEANING, CONSTRUCTION.) not tried : Held, that he was guilty of a contempt in subsequently absenting himself. Johnston \. Wiliston. 2 All. 171. Where a witness accepted the conduct money, and went with the person who served him with the subpcona, and re- mained at the Court several days, an at- tachment was granted against him for subsequently absenting himself, though he and another person swore, in contra- diction to the party who served the subpoena, that the original writ was not shewn to him, and he also swore that he attended the Court as a juror, and left in consequence of ill health, with the in- tention of returning, — his absence appear- ing to be wilful. Ibid. 8— Counsel— Witness. A counsel in a case will not be allowed to be a witness for his client, unless there is other counsel to examine him and com- ment on his testimony. Hamilton v. Mc- Lean, Hil. T. 1828. 9— Prosecution for Solemnizing Mar- risNge— Criminal proceedings. A prosecution to recover a fine nnder 1 Rev. Stat. c. 146, for solemnizing mar- riage between minors without consent of their parents is a " criminal proceeding," and therefore the defendant is not a com- petent witness under the Act 19 Vic. c. 45. Ex parte Jarvis, Hil. T. 1861. 10— Bastardy. Bastardy not a criminal proceeding — party charged, a competent witness. Ex parte Cook, 4 All. 606. Recalling witness. See Evidence VIII. 11— Diligence in discovering. Whether duo diligence has been used to discover an attesting witness must de- pend on the circumstances of the case. Crane v. Cyr, 2 All. 677. Privilege. See Arrest. Expenses. Witness attending trial as a jurnr or too much intoxicated to be examined, cannot recover his fees. See Coste II. .37. Taxable ozponscs — Cause put. off on pay- ment, See Costs II. 36. Mileage. Soo Costs II. Materiality of witneos. See Costs II. Affidavits of attendance — sufficiency. Soo Costs II. 3U. Ueuerul Rules 31 32. Examination — Cross-examination, See Evi- dence VIII, Subscribing witness— Assignment of judgment. Affidavit of subscribing witness necessary before attorney compelled to pay over the proceeds of a judgment at the instance of the assignee. Jdwray v. Johnston, 1 All. 667. Cases as to competency or incompetency of witness from intc'rest, before Act allowing all parties to bo examined in civil causes : Turner i-. Ell' >t, Beard v. Venning, Robinson v. Taylor, Yeoman v. MoManus, Eraser v. Harding, Hughes V. Holmes, Reg.D. McCoubray, McLardy v. Flaherty, Vanwart v. Roberts, Harkins v. Johnston, Kerr v. Morrison, Doe V. Gilbert, Whelpley v. Riley, Doe V. Baxter, Lawton v. Wilder, Doe V. McCoskery, Doe V. Harris, Ilazcn V. Bryson, Ber. 117. 1 Kerr 77. 2 Kerr 198. 3 Kerr 01. 3 Kerr 94. 3 Kerr 141. 3 Kerr 384. 3 Kerr 455. 3 Kerr 572. 1 All. 70. 1 All. 378. 1 All. 520. 2 All. 275. 2 All. 377. 2 All. 416. 2 All. 461. 2 All. 42. 3 All. 101. WORDS (MEANING, CONSTRUC- TION.) "Adjacent and adjoining" — Distinction. See Deed I. 18. "At least" doy'fl service. See Practice IX. 3. " Bank or edge." See Crown Grant I. 19. "Bail" in County Court Acts includes sureties on a limit bond. See Bail 18. " Breaking into field under lawful fence" — What does not constitute. See Trespass II. 2. Covenant "To keep up" a mill-dam. See Covenant 2. "Contiguous small islands" — "Low water mark." See Crown Grant I. 20. " Costs " — The costs mentioned in condition of replevin bond moan taxable costs. Sue Slcen V. Hanson, 4 All. 589. " Costs" in Slst section in charter of Fred- oricton mean costs of distress and snlo. See Ex parte Mowry, 3 All. 276, " Criminal procooding," what so considered. See Witness 5), 10. WOUNDING. WRIT OF RESTITUTION. 413 " Distress " a " proceeding " under Act 18 Vic. c. 38. See Distress Warrant. " For a Glebe " grant of land to use of rector. See Grown Grant II. 3. " Grandson." See Evidence V. 3. " Incapacitated." See Practice in Equity I. 12. " Months." See Insurance 40. "Within three months" — Filing bill in Equity. See Practice in Equity. " Proceeding." See Supra — Distress. " Remise release and quit claim " a good conveyance. See Deed I. 3. " Privileges and Appurtenanccb " — " Other privileges " — What is conveyed. See Deed 1. 5, 21 — Easement 1. " Water privilege." See Easement 2. "Immediately upon such sale" execution of deed. See Deed I. 31. " Sell" necessarily meaning to convey. See Vendor and Purchaser. "Stock" not confined to live stock. See Will 9. "Sue for" and "recover" indicate a pro- ceeding in personam. See Wharfage 1. " Real and personal property" in 1st section of Act 33 Vie. c. 46, are limited and ex- plained by section 2. See Assessment 1. 5. "Trade, profession, or calling" — "Inhabi- tant." See Assessment I. 6. "Nearest Justice of the Peace" means nearest disinterested Justice. See Jus- tice of the Peace II. 16. " Properly planked or timbered on the sur- face" not proved by evidence that wharf Wtts in good order. See Wharfage 2. Transposition of words — Variance. See Variance 5. WORK AND LABOUR. Soo AMsuuipsit. WOUNDING. See Criminal Law. WRIT. See Amendment — Practice — Sheriff. Altered ft. fa. A returned^, fa. having been altered and reissued by the attorney, as an alias, was held void and not receivable in evidence in an action of trespass against the Sheriff for taking goods under it. Johmon v. Winslow, Ber. 53. Mistake in indorsement by Sheriff may be amended. Ibid. Return by Sheriff " cepi corpiu " on capias issued against two defendants, applicable to both. Rex V. Sheriff of Gloucester, Ber. 187. Issue of. In the absence of evidence of the actual time of issuing a writ of mesne process, it will be presumed to have been issued on the day it bears date. Pomares v. Provincial Insurance Co., Hil. T. 1873. Alteration made in the return day of writ, though before it is returnable, vitiates it, unless it is reaealed. Andrews v. Mc- Kenzie, 1 All. 264. When writ not served personally, the affi- davit should state the name of the person upon whom it is served. Sandall v. Godsoe, 1 All. 44. Writ not served personally — No Judge's ordor to perfect service. See Practice VI. 16— General Rules 90-98. Return of. See General Rules 96-98. WRIT OF ERROR. See Error (Writ of). WRIT DE PROPRIETATE PRO- BANDA. See Replevin — Sheriff. Ihhuo by Attorney's Clerk. See Replevin 8. WRIT OF INQUIRY. See Practice VI. WRIT OF RESTITUTION. See Landlord and Tenant VII. 5, 6. Account 8t oounti On a settl( plaintiff a partners, t note in h: the defend the defeno owed cbe 1st. That ted by tl without p the amouo ered as ai was no pi 2 All. 646 Aflseasment A New ] rolled und ment of ( exemption rates and < vincial Ai Chamberl Oriminal L Not a An oversi liable undt 3, 0. 28 a an indiotn first Genei year, for ii support of year. It i ment shot nor that neglected fendant s] money foi Reg. V. M Contract—] ledgn By an ag: defendant Treasurer, the plaini coined in defendant coin for t Crown ha coining, tl ADDENDA. CASES INADVERTENTLY OMITTED IN DIGEST. Aooount stated— Settlement of Ao- oomits— Bvidenoe— Beoovery. On a settlement of accounts between the plaintiff and defendant who had been partners, the plaintiff wrote a promissory note in his own favor, which he read to the defendant and requested him to sign ; the defendant refused; but admitted he owed the plaintiff the amount. Held, 1st. That evidence of the amount admits ted by the defendant, was receivable without producing the note. 2nd. That the amount acknowledged could be recov- ered as an amount stated, though there was no promise to pay. Sea v. Jones, 2 All. 646. AMessment— Volunteer taxes. A New Brunswick volunteer, who en- rolled under 31 Vic. c. 4, of the Parlia- ment of Canada, is not entitled to the exemption from City, County and Parish rates and taxes, provided for by the Pro- vincial Act 28 Vic. 0. 1, 8. 17. Ruel, Chamberlain &c. v. Hunter, 1 Han. 606 Criminal Law— OverBeem of poor— Not accounting— Indictment. An overseer of the poor of a parish is liable under the Acts of Assembly 26 Geo. 3, 0. 28 and 43, and 33 Geo. 3, o. 6, to an indictment for not accounting at the first General Sessions of the Peace in the year, for moneys received by him for the support of the poor during the preceding year. It is not necessary that the indict- ment should be against all the overseers nor that it should allege that they all neglected to account, if it charge the de- fendant specifically with the receipt of money for which he did not account, Reg. V. Matthew, 2 Kerr 643. Contract— Representation— Acknow- ledgment by acts. By an agreement between plaintiff and defendant, therein described as Province Treasurer, for and on behalf of the Queen, the plaintiff agreed to procure — to bo coined in England and delivered to the defendant — a certain amount of copjper coin for the use of the Province. The Crown having refused to authorize the coining, the plaintiff made application to the Legislature fbr compensation, and a grant of money was made to him " to re- imburse him expenses incurred in en- deavouring to execute a contract entered into with the Provincial Government for a supply of copper coin — the same to be in full." Held, in an action against the defendant for falsely representing that he had the authority of the Queen to make the contract— -1st. That the defendant, having acted under the direction of the Provincial Governmentwhich represented the Crown, had the authority of the Queen ; 2nd. That by accepting the grant of money from the Legislature, the plain- tiff had acknowledged that the contract was made with the Provincial Govern- ment, and therefore that the defendant was not liable. Sears v. Robinson, 4 All. 366. Qusere, Whether the words of the agree- ment amounted to a representation that the defendant had the Queen's authority to make the contract. Ibid. Executors and administrators— Assets —Beal estate. On an issue of plene administravit real estate of an intestate unsold is not assets in the hands of his administrator for pay- ment of debts. Queere, Whether under a different issue an administrator might be made liable for the value of real estate which he had neglected to make available. Crawford V. Wilcox et al., 1 All. 634. Mortgage— Fraudulent or not— Suffl> ciency of— Consideration. The plaintiff claimed title under a mort- ;age from P., stating as consideration a ebt of JC300 — but there was no proof of any debt beyond £25; the defendant claimed under a Sheriff's deed founded on a judgment recovered against P. since the mortgage, and gave evidence to shew that the mortgage was fraudulent. The Jury wore directed that if there was a debt duo from P. and the mortgage was given bona fide for the purpose of secur- ing it, it would be valid. Held, That this direction was right, and that it was not enough to shew a consideration to the I 416 ADDENDA. extent of £25. 520. Doe V. Gilbert, 1 All. Information— Liquor Act— Search Warrant. A warrant cannot issue under the Act 18 Vic. c. 36, to search for liquors in a dwelline-house, in whiob a family resides, without the information of three persons, though there may be a shop or place in the house for the sale of liquors. An information stating that intoxicating li- quors are kept for illegal sale by A. ". in his house or shop or on the premises where he now dwells, in the County of C," is not sufficiently certain to autho- rize the search of a dwelling-house under the said Act. Such ali information >will not justify a search warrant, stating that there was a place in the dwelling-house for the sale of liquors. Ex parte Cald- well, 3 All. 393. Judge— Viai Prius- Order for trial of oauBes — Authority to make- Counsel's Duty. A Judge at Nisi Prius has authority to make such order at the time of trial of the causes as to him may seem 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 at- tend until the cause is disposed of. It is no ground for setting aside a verdict on the score of irregularity, that a cause has been tcied out of its order in consequence of several causes standing on the docket before it having boon put off by consent to a future day. Bowes v. Sutherland, 2 Kerr 1. Judgment as in ease of non-suit-- Cause made a remanet. Where a cause has been taken down to trial and made a remanet, either by spe- cial 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-suit for a subsequent default. JUilU t. Leach, 4 All. 355. Motion— Entry. A motion for judgment absolute as in case of a non-suit, for not proceeding to trial pursuant to a peremptory under- taking, should not be entered on the motion paper; and if this course be adopted, the costs occasioned thereby will not be allowed. O'Rigan v. ltobiit»on, 3 Kerr 224. Iieave to amend— Duty of partv. It is the duty of a party who has oDtuinod 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 oompUed with. A party who ob- tains leave to lunond his pleadings on payment of costs, is bound to pay the costs within a reaaonable time after taxa- tion. Patterson v. Patterson, 1 AH. 400. Mortgage — Foreclosure — Plaintiff's right to costs of defending suit for redemption. In a suit for foreclosure of a mortgage, by which the mortgagor, in addition to other property conveyed, assigned a mortgage given to him by M., the plaintiff is not entitled to recover the costs incurred by him in defending a suit for redemption brought against him by the assignee of the redemption of M., in which suit each party was ordered to pay his own costs. Bank of New Brunstoick v. Crouk et al., 1 Han. 228. Partnership— Liability of partnera F. & S. D. and B. entered into a partner- ship for the buying and selling of shingles; F. & S. D. to furnish the capital and B. to purchase shingles ; profits to be equally divided. The shingles to be shipped to F. k S. at Boston and money provided by drafts drawn by D. upon them ; the business in New Brunswick being done under the name of M. & D. Plaintiffs sold goods to D on the credit of the part- nership and took his notes in payment. Held, That the goods being proper for the business of the firm and sold on the credit of the firm, the other partners were liable, and that as regards contracts with third parties it was of no consequcuce whether D. had advanced his proper share of the capital or not. Jones v. Foster et al. impleaded with Doioliwj, 1 Han. 596. Pleading -False representation -^In- sunloient averment. In an action for deceit, the declaration stated that the plaintiff bargained with the defendant to buy and take an assign- ment from him for the sum of five shil- lings, of certain judgments in the defend- ant's hands, inti:r alia a judgment in favor of the defendant recovered in the Supreme Court of Nova Scotia against J. C. for £129, and that the defendant ADDENDA. 417 thea and there falsely, fraudulently and deceitfully represented to the plainti£f that the said judgment had been recorded in the Book of Registry of Deeds, where- by J. G.'s lands were bound, and that an execution could issue thereon under which his lands could be sold, and that the judgment had priority over a mortgage on the land given to A. Averment, That the judgment had not been recorded, and that J. G/s lands were not bound thereby, and that no execution could issue on the judgment under which J. G.'s land could be sold, and that the judgment had not priority over A.'s mort- gage, as the defendant, at the time of making the said false and deceitful re- presentation, well knew, whereby the defendant falsely deceived the plaintiff, and thereby the judgment against J. G. became of no value to the plaintiff, and he had sustained damage to the amount of £500 in not being able to issue execu- tion and sell the land, and in consequence of the judgment not having priority over A.'s mortgage. It was proved that the defendant was the attorney on the judg- ment, that it was not recorded, and that by the law of Nova Scotia, land could not be sold under execution unless the judg- ment was recorded. Verdict for the plaintiff for £126. Held, That as the declaration did not shew that the false representation was the inducement to the plaintiff to enter into the contract, but that the contract was only for the assign- ment of the judgment (which the defend- ant had given the plaintiff), and as the injury to the plaintiff depended on the consideration paid, and there was no allegation of the value of the judgment, or of J. G.'s land, the verdict could not be sustained. Knapp et al. v. McFarlan and Dixon, 4 All. 284. Probate Court— Oranting Adminlstra* tion— JuriBdiction. The Probate Gourt has jurisdiction to grant administration without a citation on an estate of a person dying in the Pro- vince, on the petition of a person alleging himself to be a creditor of the deceased, and that he died without leaving any next of kin. If administration is irregularly granted, application should be made to the Probate Gourt to revoke it. Doe dem Shore v. Gearon, 1 Han. 144. Bepresentation— Title to land— Word "purohase." An agreement by which the defendant agreed to sell to the plaintiff — " all his right, title and interest to the timber growing on a certain block of land, being the same tract which he (defendant) pur- chased from the Grown" — does not amount to a representation that the de- fendant has a title to the land. The term " purchase " does not necessarily imply a conveyance of land, but may be under- stood to signifj a bargain or agreement for it. Ash and another v. Clarke, 3 Kerr 187. Sendee of notice on student— Bequisite statement. 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. £er. 342. Student at law— Qraduate. To entitle a student at law to the benefit of the reduction of the term of study allowed to graduates by the Act 26 Vie. c. 23, he must be a graduate at the time of commencing his study. Ex parte Travis, 1 Han. 30. Term's notice— When necessary. If four terms have elapsed after issue join- ed, without any proceeding being taken in a cause, a term's notice of the plaintiff's in- tention to proceed must be given, though a year may not have elapsed. Collins v. Kerlin, 4 All. 505. Venue— Application to change— Con- venience-Expense. Where, on an appRcation to change the venue, it appeared that the change would be a convenience to the defendant, whose witnesses all resided in the Gounty ° to which the venue was proposed to be changed, but that it would be less expen- sive to the plaintiff to try the cause in the Gounty where he had laid the venue, the Gourt refused to interfere. Carvill v. St. John Insurance Co., 3 AU. 431. See Levy v. Rice, 5 G. P. 119, L. R. See Ghurch v. Barnett, 6 G. P. 116, L. R. 418 ADDENDA. THE FOLLOWING CASES SHOULD HAVE APPEARED UNDER THEIR RESPECTIVE HEADS. Affidavit to hold to bail— Filing- Time— Waiver. It is in general sufficient that affidavits to hold to bail be filed within thirty days after the term in which the writ is re- turnable, and as the defendant cannot object to the want of (Ate 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 his entry docket or declaration in the cause, appears at the trial and defends the action, he thereby waives the previous irregularity in the plaintiff's proceedings. Read v. McLellan, 1 All. 3. Judgment as in case of Non-suit— Insuffloient excuse. An affidavit of the plaintiff's attorney that the reason for not proceeding to trial after notice was that the plaintiff resided in a distant part of ihe Province and did not appear nor send his witnesses, is not a sufficient answer to a motion for judgment as in case of a non-suit, there being nothing to shew why the plaintiff was not ready or that ho intended to proceed in the cause, Katham v. Hnwkes, 1 Kerr 525. Jury— Elisors summoning— Impar- tiaUty. It is not a sufficient objection to elisors named to summon the jury in an action against the Sheriff for a false return to a writ of election that one of them had voted for the plaintiff at the election, and that the other had always been opposed to the defendant and to the returned candidate. Stilea v. Gilbert, 3 AIL 503. Malicious prosecution— Termination of proceedings. Defendant made complaint before a magis- trate 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 com- plaint. Held, in an action for malicious prosecution. That there was evidence of the termination of the proceedings before the magistrate. Malice is not a ques- tion for the Judge to determine. Wasmi V. ratflor, 1 Han. 102. Pleading—Declaration— Common breach. The declaration contained a special count setting out an agreement made by the defendant to pay the plaintiff £18 15s.. which was due by A. to the plaintiff on the 1st May then next, in consideration of his giving time to A. until the said 1st May ; or that A. should then deliver to the plaintiff a yoke of oxen and a colt in good working condition : and averring that A. did not pay or deliver etc., of which the defendant had notice ; to this were subjoined the common counts: Held, That the usual breach at the con- clusion of the declaration sufficicntly alleged the non-payment by the defendant of the sum mentioned in the spccini counts. Marks v. Scott, 2 Kerr 379. ERRATA ET CORRIO-ENDA. Page 1 — On head title, " Hilary " Term induBive, should be " Easter." " "—Under title Abandonment, trespass " 25," should be " 11. 8, 12, 13, 25." " "—Under title Abatement, Bills and Notes VI. •• 9 " should be " lU." " 2— Under Acceptance, Contract "12," read "8." " 3— Second line from top, left column, for Contract " 6," read " 2." " "—Under Account, Attorney VIII. " 32," read "4." "—Under Ac Etiam, Practice " VI." 1. read " IV." " 7— Under No. 11, for Assumpsit III. " 47," read " 43." "—Under No. 13, Legacy, for Assumpsit III. •' 19," read " 14." 8— Under No. 18, for Assumpsit III. " 20," read " 15." "—Under 21, for Assumpsit III. " 34," read " 29." " "—Under 27, for Assumpsit HI. " 24," read " 19." " " — On serenth line from top, left column, for Asaumpeit III. " 38," read " 5." On ninth line, for Assumpsit III. "8," read "33." " 9— Third line from top, right column, for Assumpsit HI. "56," read "52." " 14-^Under No. 4, Principal and Agent " 22," read " 16." " 15— Under No. 4, Crown Grant " 21," read " 11. 2," " 18 — Under No. 4, left column, " suflScient " should be " insufficient." " 19— Under No. 6, right column, ffiectment " VI." 2, read " IV." " 2C^Under Agreement, To Lease, landlord and Tenant " 4," read " I. 3." " 28— Under Appraisers, " 14 " read " VI. 2." » 39— Under No. 14, BiUs and Notes "I." 9 read" n." « "—Under Assignment, fifth line, Landlord and Tenant "VI. 2," read "14." " 60— Under No. 26, for " pleading," read '• practice." " 62— Under Bankrupt, sixth line, for Non-suit IL " 22," read " 11." " 64-Under No. 8, for 33 Vic. cap. " 33," read " 32," " 80— Under BiU of Lading, for Pleading II. " 5," read " 28." Under ditto, for Contract "21," read " 17." " 88— Under CaUs, Bills and Notes " I." 9, read " II." " 99— Under Contract, ninth line, for Action at Law " 15," read " DC. 16." Under ditto, twentieth line, for " contract," read "corporation." " 1 17— Title " Supreme Court," should be " County Court." " 154— Under Disseisin, first line, Limitation of Actions " 22," read " IV. 22." " 167— Under Dower, No. 6, Non-suit III. " 13," read " 12." " 168— Second line from bottom, right column, New Trial II. " 16," read " 18." " 173— Under Escape, No. 1, for 2 AU. " 4," read " 475." " 177— Under No. 6, Corporation " 7," read " 6." " 178— Second' line from top, left column, for Bridence VII. " 3," read " 23." " 193— Under No. 23, Eridence "HI." 5, read "IV." " 214— Title "Flarms," should be "Forms." " 226— Under Indemnity, Principal and Agent " 22," read " 16." " 246— Under No. 18, insert name o» case, " Laney v. 3iddal, 3 Kerr 223." " 275 — On serenth line from top, right column, for " influence," read " inference." " 278— Under No. 10, for see " Supra," read " Infra." " 302— Under Orerseen of Poor, msert " See Addenda, Beg. v. Mathew." " 304— Under Pendency of other Suit, for II. " 39,".read " 41." " '306— Under No. 1," arguments" should be "avermenta." " 338— Under 45, Levy, Ettoution, I. " 7," read "8." " 342— Third line from top, left column, Maloney v. Morrison, " 3 Kerr," should be " 1 All." " 345— Under No. 5, 1 All. " 580," read " 508." " 373— Under No. 28, third line " II." 16, read " III." « 412— Title Witness, under No. 8, insert " See also Shields v. McOrath, New Trial 11. 28." 23— DesBrisay t'. Livingstone. Insert at end of paragraph, " Defendant refusing to swear that he would be prejudiced thereby." " 261— Under Use and Occupation, eighth line from top, left column, for "defendant was liable," should be " defendant was not liable." ir,| J TABLE OF NAMES IN THE DIGEST OF UNREPORTED OASES- A. PAGE Abel V. Light, . 191, 369 Ache V. Alexander, 389 Adams v. Garter, . 32 Alton V. Demill, 132 AUenach v. DesBrisay, . 136, 265 AUingham v. Daniel, 209 V. O'Mahoney 99 Allison V, Robinson, 288 Ames V. Carman, . 7 Andres v. Dowdall, 82, 205 Ansley v. Albert Mining Co., 180 Arwin v. MoClure, 128 Atkinson v. Atkinson, . 194 " V. Desmond, . . 207, 324 " V. Keith, 369 « V. Mitchell, . 52, 173, 296 Ayre v. Main, 23 B. Backhouse v. Palmer, 186 Bank of New Brunswick Ex parte 37 Bartlett v. Glasgow, 59, 333 *' V. Stymest, 350 Baxter v. Johnson, 283, 362 " V. Hallett, 11 " V. Sime, 82 Beardsley v. Scovil, 201 .Beattie, Ex parte . 259 Beckwith, In re, 284 Belyea v. Stephenson, . 116, 245 Berry v. Hutchinson, 8 Berton v. Brown, . 330 " V. Central Bank, 62, 78 " V. Tierney, 356 Betts v. Johnston, . 330 " V. McGowan 83 " V. Venning, . 196, 298 Biggs V. Eagles, 404 Bishop t). Goff, 295 Black V. Hazon, . 170, 244 Boltenhouse v.- Black, 118 Bonnell v. Ackerman, 60 Botsford V. Botsford, 409 " V. Crane, 168 " V. Hnzen, 167 " V. Sears, 351 Bradley o. Ferguson, 107 " V. Hopley, 204 Brookfield v. New Brunswick and Canada Railway Co. Brown v. Foster, . Bryson v. Hamilton, Buchanan v. Peters, Bullen V. Harding, Burgoyue v. Moffat, Burke v. Niles, PAGE 399 24 195, 297 348,349 228 275, 276 107 C. Caledonian Mining Co. v. Blight, Calhoun, Exparte Caloner v. Colpitis, Caldwell v. Keith, Campbell v. Gilbert, Carman v. Wilson, Qarrick v. Atkinson, " V. McLeod, Carson v. Giffin, " Ex parte Carter v. Sau^iders, Carvill, Exparte Canby v. Wright, Caughey v. Inman, Central Bank v. McKeen, Charlotte Co. Bank v. Berry, Champion v. Long, Cheney v. Gubtail, Chipman v. Tuck, City of Fredericton v. Mulligan, Clark V. Casey, Clementfion v. Coombes, 264 38,95 79 361 65, 194, 195 207 46, 49, 395 244 284, 389 64 180, 181, 296 37 71 191, 267 204, 371 269 " V. Cooper, " V. Hammond, Cluff, Exparte Colewell V. Purdy, Collins ('. (!!aruiichael. Commercial Bank v. ^tna Ins. Co., 24 V. European Ass. Co., 238 182 213 350 217 362 173 347 227 91 254, 388 346 " " V. Fleming, " " V. Price, " " V. Stephenson, Condon v. Bank of British N. A Connor v. Wiggins, Cotterell v. Hatfield, Coy V. Coy, . Crane v. Clarke, . Crocker v. Hutchinson, Crockford v. Equital^e Company, 93 67, 117 47 8,209 367 219 346 186, 196, 203 176 Insurance 142, 147, 148 422 UNREPORTED CASES. Crookford v. London &o. Ins. Co., 97, 230 Croskill V. Wortman, . . 262 Canard v. Fraser, . 343 Cashing v. Gordon, 299 " V. Roberts, , 88 Coshman t>. London and Liverpool Ins. Co., ... 230 0. (I (( <( Dana v. Bradley, . Davis V. Cushiog, . " V. Hayden, . " V, Raymond, Day V. Hatheway, DesBrisay v. Little, V. Livingstone, McPheliu, . Mooney, Deveber v. Colling, Dever v. Morris, " V. South Bay Co,, Dewolfe "r. Carvill, Dibblee v. Wood, . Dingle v. Stickney, Doe dem Andrews v. Taylor, . Armstrong v. Bridges, Botsford V. Todd, . Bowen v. Robertson, Bridges v. Quint, Bryson v. Fleet, Donaghue v. McOarrigle, Edgett V. Downey, (I II II II II II (I II II II II 69 135, 362 40fi 394 285 363 23, 250, 389 385 229 204 228 , 286, 391 375 57, 117 369 153, 262 176 273, 382 267 139, 360 342 143 287 II <> II II 11 II II II II II II II II II II Pauls V. Jones, . 23, 269 Fitzgerald v. Maxwell, 161 Foster v. Leo, . 226 Fox V. Wright, 270, 273, 283 Harding v. Hanson, 283 Hatheway v. Rogers, 211 James v. McLaughlin, 197 Jardine v. Coughley, 142 Johnston v. Jardine, 157 Kerr v. Jamieson, 360, 374, 375 Mayor of St. John v. liittlehalo, . 271 McCullough v. Duwd, 260 Munro v. Hanson, . 160 Myers v. Babineaii, 296, 409 New Brunswick and Nova Scotia Land Com- pany V. Roe, . .162 Owen V. Hatheway, 86 Palmer v. Ross, 180 Pike V. Tierney, 209, 211, 267 Robinson v. Chase, 272 Roup V. Trentowsky, 144, 145 Spence v. Welling, 4, 270, 272 Sherlock v. Powers, 296 Simpson ^ Pauls, 14S, 267 Doe dem Solomon v. Graham, 360 " «' Sullivan v. Curry, 143, 268 " " Trider v. Molntosh, 19 " " Verner v. McDonnell, 382 " " Walsh V. Dalton, 374, 401 Doherty v. McGrath, DoUard v. Potts, . 166, 329 21 Domville v. Keevan, 136, 201 Donaghue v. Hallett, 226 Dorman v. Anderson, 46 Douglas V. Hinckley, 184 Downes v. Gordon, 147 Drake v. Wentworth, 17 Duffy V. Stymest, 230 Dunham v. King, 139, 384 Duncan v. Barnes, 61 E. Elston V. Vance, 362 Embre v. Hatheway, 245 Esson V. Dunn 28 Estabrooks v. McKenzie, 65,78 E. & N. A. Railway Co. Exm ▼. Th irte 35, 86 omas, 241 Ewing V. Scott, 107 F. Falconer v. E. & N, A. Railway, 286 Fearon v. Murray, 1 14, 295, 364 Ferguson v. Holmes, 106 " V. Muirhead, . 8 Fennety v. Simonds, 21 Fogg V. Dowling, 168 Foster v. Dowling, 347 Foye, Ex parte 89 Fraser v. DesBrisay, 98 Fredericton (City of) v. MuUi gan, 217 French v. Hodgson, 292 Frink v. Hill, 131, 384 Frith V. Fitzgerald, 135 " V. Pitzpatrick, 362 Frost V. The Liverpool, Londo n &c. Insurance Co., 121, 232 Frost Estate, In re. 209 Frye v. Prescott, ■^49 Gabbles v. Dougl I Ganong v. ^Etna i Co., 231 Garrison v. Harding, 393 V. Thomas, 62 Gaskcn v. Phoenix Ins. Co., 170, 232 George v. Brayley, 219 Gerow, Ex parte . 157 Gibbs V. Sewall, 4, 211, 269 Gidney v. Bates, . 386 Gilbert v. Campbell, 111, 351 UNREPORTED CASES. 423 Gilbert v. Cyr, ... 61 << Ex parte . 19,96,334,346,358 " T. Graham, 214, 323, 324, 337 Gillespie v. Philipe, . 8, 299, 302 Gilmour t. Simpson, . . 58 " T. The Liverpool &e. las. Company, . 105,335 Girvan v. Mayor && of St. Jdio, 288 Glencross v. Wark, . 337 Godard v. Fredericton Boom Co., 137 " Tuck, . . 110,362 Godfrey v. Kiordan, . . 350 Gordon (Hon. A. H.), Ex parte 35 Governor of Madras Board v. Ryan, 386 Graham v. Gilbert, . . 47 » V. Green, . . 389 Grieves, Ex parte . . 216 Griswald v. Uallett, 260, 324, 391 Grover v. Watson, 66 Groves v. Griffith, . . 361 Gunnison v. Thomas, . . 62 H. Haines, Ex parte . . 82 Haffgiirty v. O'Leary, . . 142 Halle't V. Hodjrens, , . 348 Hamilton v. McLean, . . 412 Uamm v. McAfee, . ■ 215 Hannington v. Harshman, . 2, 111, 350 " V. Stewart, . . 27, 118 Hanson v. Gove, . . 248 Harley, Ex parte . . 90 Harris v. Robertson, . 49, 303 " V. Roulston, . . 28 Harper v. Alexander, . 31 Harvey v. Marshall, . 10 Hatch V. Taylor, ... 10 Hathaway v. Gumming, . . 36 Hawkins v. McBean, . 49 Heavy v. Odell, ... 195 Hebert v, Hannington, 109, 110, 166, 166 Henderson v. Mayor &o. of St. John, .... 286,317 Herbeison v. Cunningham, 141, 168 Hillock V. Frizzle, . . Ill, 283 Hodge V. Reid, . . 21, 106, 170 Hogan V. Whitehead, . . 207 Uolder, Ex parte . . 256,258 Holly, ^x^«»-te ... 209 Holmes v. Billings, , 370 Hughson V. Keith, . . 277 v. White, . . 31 Hughey, Ex parte . . 216 Humphreys v. Helms, . . 273, 385 Hunter v. Hunter, . . 157 " v. Maddoz, H 54 Hussey v. Ferguson, " V. Hatheway, 1. in re Froet Estate, =' Smith's Trustees, . Jaekman v. Brown, Jacob, Ex parte . James v. Roach, . « v. White, . Jardine v. McCauley, Jarvis, .Ex parte . Johnston v. Fraser, " V. Glasier, Jones V. Bigeau, " V. Caie, ^ V. DesBrisay, " Ex parte Joseph V. McLeod, Justices of Northumberland K. 31 353 209 347 48 90 81,82 61 41 412 218, 318, 401 115 228 862 227 277 209 Russel, 342 Kay V. Hannington, Kelly V. Liverpool &c. Ins. Co., Keen v. Seymour, . Kennedy, Exparte Kettle, "... Key V. Thomson, . Kilby, Exparte . Ketcfaum v. New Brunswick Rail- way Co., Kinnear v. Calhoun, Knowles v. Adams, 62, 166 232 389 64. Ladds V. Vernon, . Lawton v. Adams, . " V. Reed, . Lee V. Trefethen, . " V. Mayor of Fredericton, . Leeraan v. Leeman, Light V. Abel, . . 80, Lipsett V. McLaggan, Livingstone v. Bank of New Bruns- wick, Lockhart v. Sancton, Lowell V. McAdam, Lymburn v. Deveber, Lyons v. Ellison, " Exparte " v. Gorum, Lugrin, In re, . . . Lush V. Millar, 90 2 287 96 329 118 390 326 389, 392 158 45 39,94 157 109, 196 12 114, 284 350 199 296 18 91 361 56 304 'M '■ I ■-■ i. 424 UNREPORTED CASES. M. Madras Board t. Ryan, Maher, Ex parte Mann y. Gliamberlain, Marks v. Wright, " In re Marshall v. Winslow, Marvin v. Butterwell, Mathiavet v. Roche, Mayor &c. of St. John v McCausland v. Tower, McOourt V. McCarthy, McCulley v. Ward, MoDade v. Peters, MoFarlane t. Callaghan, McQarr, Ex parte MoGee v. Wetmore, McGivern v. Stymest, McGlynn v. Falconer, McGoIdrick v. Eastern Express Co., 103 I MoGowan v. Betts, 111, 214, 363 r»l,ilnerney, Ex parte . . 37 V. Chandler, . 339 Mcintosh T. Hastings, 61, 862 McKay V. Botsford, . 392 " V. Crocker, . .201, 398 " V. The Commercial Bank, 2" 6 McKeen v. Brown, . 215 McKenzie v. King, . 209, 411 McLean t. Davis, . 168, 281 V. McDonald, . 288 McLeod, Ex parte . . 36 " V. Firth, . . 350 " V. Perry, . 348 " V. Thomas, . . 27 " V. Yeats, . . 406 MoMahon v. Dibble, . . Ill McManus v. iEtna Ins. Co., . 231 McMillan v. Langen, 61 McNeill v. Moore, . 290 McPhelim V. Weldon, . .6, v ,1^284 Meehan v. Ijawthcr, . . 291 Melville v. Bedell, . . 65 Merritt v. Lindsay, . . 58 Millar v. Lakeman, . . 116, 244 Millidge v. Stymest, . 231 Minas Ins. Co. v. Rivers, . 23 Mitchell V. Lawther, . . 19, 339 Moore, Ex parte . . 326 Morrison v. Gale, . . 102 Morrow v. Hamilton, . 23 Mulligan, Ex parte , . 87 Murphy v. Bills, ... 12, 34 Myers v. St. Andrews Railway Co., 6 Mytton V. Parlee, . . 336 Brown, 272 37 186 219, 304 86 251 286, 287 79 352 30 347 400 26 60 38 288 109, 231 246 N. Nashv.Dever, ... 3 Neil V.Jack, ... 46 Nevers v. Travers, . . . 329 Neville v. Joseph, . . .21, 187 218 Nevins v. Cole, ... 34 Newbury v. Young, . 23, 281 , 375 Nice V. Coylo, ... 114 Niles V. Burke, . . 127, 180, 198 Nixon V. Romerille, . . 161 Nowlin V. Sears, . . 156 " Ex parte ... 90 Nugent V. Parks, ... 388 0. O'Flaherty v. Devine, . 393 O'Leary v. Graham, . 337 " V. Stymest, . . 231 Oliver v. Elliott, ... 31 " V. Campbell, . 247 Osgood V. Hatch, ... 214 Oulton V. Bowser, . . . 292 " V. Hewson, . . 34 " V. Reid, ... 296 P. Patterson v. GUes, . . 199 " V. Tingley, 152, 206, 360, 384, 389, 390 Palmer V. Turner, 183 Patton V. Harding, . . 107 Payne v. Fredericton Railway Co., 391 Pearson v. Kingstead, . . 328 Peck, Ex parte ... 95 Peters v. Bryson, . 366 Philips V. Dickenson, . 166, 372 Pidgeon v. Mulligan, . 156 Pickard v. Central Bank, . 169 Pitfield V. Ranney, 347 Pomares v. Provincial Ins. Co., 190, 237, 282, 413 Poner v. Howie, . .189, 272 " V. Stephenson, . . 88 Pugsley V. Gillespie, 135, 367, 402 Putnam v. Casco Bay Copper Co., 349 Q. Quebec and Halifax Steam Naviga- tion Co. v. Williston, 115 Queen Ins. Co. v. McPhorson, 160 R. Rankin v. Weldon, . 294 Ray v. DosBrisay, . . IP Raymond v. Caldwell, . . 17 " Ex parte , . 87 UNREPORTED OASES. 426 Rector &c. of Sackville v. Bacon, 119, 264 Regina v. Armstrong, 258 " V. Carson, . 64, 177, 216 " V. Commissioners of Hopewell, 95 " V. Cormier, , 125 " V. Delaney, . 51 " V. Dillon, ... 125 " V. Dowling, . 87 « V. Elston, ... 123 " V. Eveleth, 123 " V. Flewelling, . 91 " V. Foley, . . . 118, 201 " V. Gerow, ... 359 " T. Harshman, 92, 166, 264, 267, 259 Rose V. Marsh, Ryan v. James, " V. Keith, " V. Lockhart, . " V. Mclntyre, 265 117,201,207 346 169, 170, 352 36, 53 8. " V. Hartt, . " V. Hatheway, " V. Hill, " V. Jardine, " V. McAvity, " V. McGowan, " V. McLaughlin, " V. Millar, . " V. Perkins, " V. Peters, . " V. Roberts, " V. Robertson, " V. Sears, " T. Simmons, " V. Sturges, " V. Taylor, . " V. Vail, " V. Watters, Renaud, Ex parte Rex V. Bates, " V. Bennett, " V. Hcaviside, . " V. Justices of York, 125 124, 125 123 37,91 375 259 86 126 256, 259 86 258 127, 176 280 92, 256 299 239 91 92 96 126 220 90, 255 277 Sargent v. Sargent, . 62 Sartall v. Scott, ... 180 Sayro v. Steeves, . . 292 Schohl V.Kay, ... 393 Scott V. Clark, ... 33 " V. Curry, ... 353 Scoullar v. Payson, . . 246 Scribner v. Betts, ... 46 Sears, Ex parte ... 27 Soelye v. Kelly, ... 30 Sharkey, Ex parte ... 37 Sharp V. Lawrence, 398 Simpson v. Glass, . . 118 Sloot V. Kermott, ... 318 Small V. Coleman, ... 229 Smith V Armstrong, 27, 113 " V. Burpee, . " V. Millar, . " V. Morrow, . South Bay Boom Co. v. Jewett, Spurr T. Albert Mining Co., 103,187,198,296 85,98 83 132, 327, 389 80 V. Justices of Northumberland, 226 V. M tyor &o. of St. John, 123, 221 " V. McLaughlin, " V. Munro, " V. 726 Saw Logs, " V. Vail, " V. Watson, " V. White, Reynolds v. Ayre, . Richards v. Short, Riley v. Mayor etc. of St. John, Reach, Ex parte Roberts v. White, Robertaon v. Armstrong, Robioheau t. Arsineau, " V. Black, " V. Turner, Robins v. Watts, Robinson v. Jarvis, " V, The Now Brunswick and Canada Railway and Land Co., 127 126 203 220 238 221 204 347 180, 183 26, 27, 350 110 347 10,98 2 61 90 46,46 244 Steeves v. Wilson, Stewart v. Kirk, Stiles V. Keiver, . Stockton, Ex parte Street /. Morrison, " V. Wulsh, . Stuart V. Andrews, Stymest, Ex parte . Sulis V Ferguson, . Sumne.' v. MoMonagle, T. Taylor v. Burpee, . Thomas, Ex parte . Thompson v. Dewar, Thompson v. Green, " V. Hughson, . " v. Keith, " v. Reed, " V. The Liverpool Ins. Co., Tower v. Cox, Tuck V. Harding, . Tucker v. Muirhead, Turner v. Crone, , " v. Doyle, " V. Hamilton, Trofethen v. Carman, Tritos V. Kelly, 318, 365 43 142 27, 111 88,89 79 182 848 177 10, 265 88 878 891 112 375 77, 246, 326 196 eto. 232 848 298 398 112, 202, 246 266 244 290 366 i I ^e UNREPORTETD CASES. U. 212 University of New Brunswick t. MeClnskj; V. Valentine v. Hasleton, . 85, 349 Vernon V. Gilbert, . . 34(i Vernon Mining Co. t. Presoott, 392 Vye T. Newman, . 160 W. Walker v. Mayor &c. of St. John, 87 " V. Pendleton, . . 198 Wallace v. Milliken, . 6, 13, 203, 388 Weeks V. Dotlds, . . . 348 « T.Hall, ... 82 Wetmore v. Ketchum, . . 211, 409 « T.LeTi, . . 253,330 « ▼.McLeod, . 371 Wkeeler t. Grant, . . 227, 401 Wiokham v. New Bronswick and Canada Railway and Land Co., .... 166 Wigtlns V. Dibble, . 299 " V.Hendricks, . . 24,379 Wilbur V. Trites, ... 362 Wilson V. Curry, ... 119 " Ex parte . . 104 «« V. Maxwell, 244 " V. Saunders, . . 293 Wood V. Stymest, . 109,231 " V. The Carleton Branch Railway Co., . 358 Woodward v. McR«e, . 328 Wright V. Staekhouse, . 208 Y. York County Mutual Ins. Co. v. Hartley, . • • HI TABLE OF CASES IN PUBLISHED REPORTS. A. Abbot V. A' h:,4 All. 87, " V. r ^,3 Kerr 368, " V. L ^ien, Ber, 33, Abel V. Light, 1 Han. 97, " " 1 Han. 240, PAQE 32 50 115 8, 224, 316 276 Adams v. Ferguson, 4 All. 102, 193 Alton V. Balloch, 4 All. 321, 218 Albert Mnlng Co., Ex parte 3 All. 39, 242 Alexander t. Hartt, 1 Han. 161, 387 55 357 151 94 Alison V. Weldon, 4 All. 631, Allen, Ex parte, 2 All. 424, " V. Ferguson, 1 Han. 149, " V. McKay, 1 All. 365, " V. McNaughton, 4 All. 234, 69, 79, 315 " V. Trenholm, 3 All. 421, 378 Allison V. Robinson, 2 Han. 161, 17 " V. Smith, 4 All. 238, 116 " V. The Central Bank, 4 All. 270, 62,66 Alward t. Sharp, 1 Han. 286, 122, 275, 277 Anderson v. Allison, 3 All. 173, 44, 197 Andrews, Executors of, v. Clarke, Ber. 32, 34, 153 " " V. Hanson, 1 All. 609, 152, 262, 301, 303, 378 " " V. MoKenaie, 1 All. 264, 22, 413 " " V.Wilson, 3 Kerr 86,127, .10,149,298 Ansley v. Longmire, 2 Kerr Z'A, 263 " V. Peters, 2 Kerr 593, 40, 307, 322 " V. " 1 All. 339, 262,264,316 Atkinson v. MoAuley, 4 All. 243, 266, 298, 371, 390 " V Smith, 4 All. 309, 193 Archibald, Ex parte, 2 Han. '^0, 2 Armstrong v. Brown, 3 All. 399, 372 " V. MoCaiFrey, 1 Han. 517, 98, 300, 393 Ash V. Clarke, 3 Kerr 187, Addenda Att'y Gen. v. Baillie, 1 Kerr 443, 379 V. Boyor, 0. Ms. 78, 18, 287 " V. 20 casks Spirits, 2 All. 467, 366 " V. «• 8 All. 404, 67 PAGE Att'y Gen. v. 250 bbls. Fish, Ber. 419, 227, 305, 337 V. 400 kegs Powder, 2 All. 493, 123 " ex relatione Frost v. Nichols, 3 All. 297, 378 " ▼. Patterson, C. Ms. 16, 30, 227, 365 B. Babbit v. Cowpcrthwaite, 3 All. 254, 373, 18, 120, 287, 288 Bacon v. Hoar, 1 All. 664, 404 " v. Johns, 1 All. 257, 309 Bailey v. Hazen, 3 Kerr 416, 371 Baldwin v. Brayden, 3 Kerr 169, 391 " V. Hitchcock, 1 Han. 310, 70 Balloch V. Binney, 3 Kerr 440, 71 " V. " 1 All. 131 68 Bank of British N. A. v. Fisher, 1 All. 606, 151, 320 " " V. " 2 All. 1 78 " ' " V. Travis, 2 All. 543, 298 " Charlotte County v. Williams, 2 All. 183, "58, 228, 229 " New Brunswick v. Cronk, 1 Han. 228, Addenda " " V. Knowles, 2 Kerr 219, 71 " " V. Millican, 4 All. 264, 71 " " V. Wiggins, 2 Kerr 478, 307 " Westmorland, In re, 1 Han. 506, 241 Barker v. Bois, 1 All. 722, 229 Barlow v. Kinnoar, 2 Kerr 94, 15, 137, 200, 316 " V. Clark, 3 Korr 485, 75, 108 " V. O'Donnell, 1 All. 433, 661, 270,331,339 Basterach v. Atkinson, 2 All. 439, 11,178,192,222 Bates V. Lyon, Bor. 63, 292 Baxter v. Foshny, 1 All. 413, 320 Bayard, Ex parte, 1 All. 359, 671, 63, 66 Board v. Venning, 1 Kerr 77, 412 Beardsley v. Copoland, 3 All. 458, 44 428 REPORTED CASES. Beardsley v. Dibble, 1 Kerr 246, 642, 148, 306, 344 " V. " 2 Kerr 254, 150 " V. Stephenson, 1 All. 631, 62 Beattie v. Garbut, 3 All. 1, 306 Beck V. Barlow, I All. 465, 120, 121 Beckwith v. McPhelim, 2 All. 501, 13. 266 Bedell v. Eaton, 2 Kerr 217, 74 " V. Rector etc. of Frcdericton. 3 All. 217, 93,105,119,120 Belyea v. Belyea, 3 All. 588, 327 '* V. Ilamm, 2 Han. 26, 27, 10, 19, 246, 297 Bennet v. Jones, 4 All. 397, 224 V. Morse, 2 Kerr 624, 52, 108 " V. Stockford, 1 Kerr 300, 245 Benson v. Lceman, 2 Kerr 118, 44 Berry v. Mitchell, 2 All. 380, 83, 364 Betts V. Chapman, 2 All. 450, 54 Bishop T. Robinson, 1 Hun. 68, 139, 174, 410 Black and others v. Kish, Bcr. 81, 106 Blair v. Albce, 3 All. 9, 4 " V. Armour, 3 Kerr 341, 141 " V. Hopkins, 1 Kerr, 540, 120 " V. Robinson, 3 Kerr 487, 7, 354 Blakslee v. Nickersou, 1 Kerr 523, 356 " V. St. John Water Co., 1 All. 639, 406 Botsford V. Henderson, 4 All. 516, 370 Bowes V. Sutherland, 2 Kerr 1, Addenda Bowman v. Avery, 3 Kerr 206, 587, 263 Boyd, Doe dem, v. Roe, 2 Han. 49, 163 " V. Kennedy, 1 All. 624, 81 " V. McLaughlan, 1 Kerr 210, 77, 320, 324 Boyco V. Pltfield, 4 All. 443. 1 1 Boyington v. Holmes, 3 Kerr 74, 221 Bradbury v. Baillie, 1 All. 427, 690, 76, 269, 339 Bradford v. Fentou, 3 All. 407, 17, 60 Bradley v. Hopley, C. Ms. 147, 369, 373 Brannen v. Dunn, 1 All. 21.8, 21 " V. Leavitt, 1 All. 220. 21 V. Williams, 1 All. 221, 222, 22 Branfield v. Bishop and otiiers. Her. 89, 388 Brcckcnridge v. Woolncr, 3 All. 303, 266, 387 Breon v. Elkin, 4 All. 187, Breeze, AV part,; 3 All. 390, 395 " V. Stockford, 3 All. 329, Brevier v. Oovang, 4 All. 144, Brouchcau v. DesBrisay, 4 All Brookfiold v. St. Andrews etc way Co , 4 All. 496, Brown v. Bartlett, 3 Kerr 369, " V. Cunard, 3 All. 316, 295, 344 258, 259 365 85, 129 122, 289, 328 Rail- 357, 378 19, 331 295, 326 Brown v. Frink, Ber. 363, 5, 85, 305 " v. (Jurrier, 2 All. 124, 29, 32, 57 " V. Harding. 3 AH. 249, 351, 31,32,87,311 " V. McKeel. 1 Kerr 311, 221 " V. Nickerson, 1 Kerr 467, 376 " V. Partelow, 3 Kerr 324, 25, 205 " V. Taylor, Ber. 343, 287 " V. Thompson, 4 All. 228, 5 " V. Treuholm, 2 All. 515, 17, 332 Buckstaff V. Doten, 2 Kerr 366, 254 Bugbee v. McDonald, 2 Kerr 61, 79, 411 Bull V. McCready, 2 Kerr 228, 290 Burgoyne v. Burgoync, C. Ms. 120, 29, 32, 315 Burk V. Niles, 2 Han. 166, 130, 152 Burke v. Sutherland, 1 Kerr 166, 33 Burnham v. Watts, 2 Kerr 377, 65, 311, 314 V. " 1 All. 89, 164, 225 " V. White, 2 Kerr 571, 145, 294 Burns v. Burns, 4 All. 229, 302 " V. Chapman, 3 Kerr 192, 111 Burrell v. James, 3 All. 599, 252 Bustin, Ex parte, 2 All. 211, 86, 92 " V. Howell, 1 All. 596, 117, 344, 366 Byers v. Harrigan and others, 1 Han. 231, 25, 139, 172 C. Caldwell v. Badger, 2 All. 516, 54, 372 " Ex parte, 3 All. 393, Addenda v. Winslow, 2 All. 203, 5, 81, 372 Cailiff V. Robertson, Ber. 342, Addenda " V. Wilson, Ber. 79, 392 Cameron v. Beardsley, 2 Kerr 598, 81, 299,307,314 V. Connell, 3 All. 398, 338 " Ex parte, 1 Han. 306, 94, 216, 358 V. Steves, 4 All. 141, 142 Campbell v. Heuan, Ber. 72, 81, 13'J " v. Lowden, 1 All. 439, 329 " v. Mossop, C. Ms. 154, 88, 337 " v. Todd, 3 Kerr 171, 6,42,341 " v. " 1 All. 199, 51 " V. Wheeler, 1 Hun. 269, 200 295 v. Wilson, Ber. 104, 265^ 30, 49, 133, 134, 302, 305 Carman t. McLuod, 2 Han 66, 398 " v. Mott, 3 KerrlSl, 153,206 Carrigan v. Andrews, 1 All. 485, 54, 317 Carter v. Adan^, 2 All. 211, 30 " V, Purrington, 2 All. 226, 206, 394 Carvill v. Mclicod, 4 All. 332, 149 " V. St.JohuIns.Co.,3All. 431, Addenda i:i (( II II II V. J V. i. V. M Commercial ance II 507, II 283, Condell v. I Connell v. I II II V. I V. A " V. " V. S " V. S Connors v. Connick v. \ 110, Cook, Expr Coombes v. ( " v. 632, Coram v. \V " V. Mj 441, Cormier v. T Coster, Ex Cothren v. . Coulan v. Ca <^^oy V. Bark " V. Coy, " V. Gnrdi Craig V. Gib ii REPORTED CASES. 429 366 314 338 bo, 295 Case V. Palmer, 2 Han. 183, 352 Cazet V. Kirk, 4 All. 543, 64, 65 Chase v. Fawcett, 1 All 566, 112 Chandler v. Beckwith, Ber. 268, 70 Chiltou V. Powell, 1 All. 578, 11 Christie v. Lawrence, 4 All. 115, 1 Clarke y. Ash, 3 .Lerr 211, 73 " V, Lawrence, 3 Kerr 152, 321 " V. Robinson, Ber. 86, 292 Cliff V. Guntcr, 2 Kerr 493, 363 Clifford, Ex parte, 3 All. 16, 258, 259 Clowes V. Scoullar, 2 Kerr 627, 326, 383 Coates V. McAulley, 4 All. 521, 398 Coburn V.Taylor, 2 Kerr 120, 307 Coffin V. Marsh. 3 Kerr 427, 172, 206 Cole, i^x/)ar Hasen v. Hazen, 3 All. 87, 16, 146, 176, 190, 204, 205, 207, 374 " Hickman v. King, 1 Han. 330, 143, 174 Hill V. Todd, 3 Kerr 295, 331 " V. " 1 All. 601, 23, 163 " " V. " 2 All. 261, 4, 141, 178 " Holderneas v. Donnelly, 3 Kerr 238, 282 " HoIdernesB v. Little, 2 All. 558, 4, 382 " Howe V. Meally, Ber, 121, 50 " Hubbard v. Power, 1 Ail. 271, 175, 284, 300 " Hutchinson t. Eraser, 3 All. 417, 179 " Jarvis v. McCarthey, 3 Kerr 63, 260 " Jarvis v. Read, 1 All. 31, 680, 191, 210 " Johnston v. Roe, 3 Kerr 400, 19 " Jones T. Baker, 3 All. 591, 2S9 " " v.Woodworth,3All. 577, 327 " Kerr v. McCuUy, 3 All. 194, 508, 141, 144, 182 " Kerr v. Wetmore, 3 All. 140, 175 " Kiuipson V. Graft, 1 Kerr 546, 131, 273 " Kiunear v. Wiswell, Ber. 127, 250 " Kirk V. Roe, 2 All. 463, 162 '< hoQ V. Troughton, 3 All. 414, 220 66 Doe dem Levi v. Samuel, 1 Han. 265, 409 " " Livingstone v. Corrie, 3 Kerr 450, 408 " " Lonchester v. Murray, 3 Kerr 335, 178 " " Lonchester v. Murray, 1 All. 216, 191 " " Lyon v. Slavin, 3 Kerr 268, 140, 274, 382 " " Macqueen v. Hunter, 1 Kerr 618, 261 " " Mahoney v. Crane, 3 Kerr 228, 220 " " Mallett v. Robioheaa, 1 All. 419, 164 " " Mayor &c. of St. John v. Hasson, 3 AU. 461, 4, 270, 271 " " McCullum V. Roe, 2 All. 143, 60, 112 " " McDonald v. Estabrooks, 4 All. 465, 8, 157, 224 " " McEacheran v. Taylor, 1 All. 525, 188, 407 " *' McGowan v. McGolgan, 1 Han. 533, 160 " " McKay v. Allen, 2 All. 191, 141, 271 " " MoMakin v. Devine, 1 Kerr 411, 159 " " McTavish v. Roulstin, 3 Kerr 221, 248 " " Mewburn v. McGuire, 1 All. 612, 1 " " Morrice v. lloe, 3 All. 84, 163, 338 Morrison v. McAlpin, 2 Kerr 467, 128,160 Nesuiith v. Williston, 2 Kerr 469, 203 Odell V. Taylor, 3 All. 437, 56 " V. " 4 All. 165, 179 Paddock v. Green, 2 All. 314, 408 Parkinson v. Haubtman, Ber. 434, 160, 262 Peabody v. McKnight, Ber. 376, 158, 243, 268, 360 Poabody v. Roe, Ber. 347, 162 Peters v. Guiggy, 4 All. 602, 297 Peters v. McGloyn, 4 All. 189, 162, 274 Peters v. Pelletier, 4 All. 33, 6, 261 Ponsibrd v. Vernon, 2 Kerr, 351, 128, 181 Purdy V. Peters, Ber. 360, 160, 273 « (1 <( IC u (( 482 REPORTED CASES. Doe dem Rector etc. of All Saints' Gburoh v. Crawley, 3 Kerr 294, 113 " " Rector etc. of Batharst t. Sweeny, 1 All 416, 297 " " Rector etc. of St. George's Church y. Couglo, 2 Han 96, 94 " " Rector etc. of St. John \ Church V. Crawford, 3 All. 266, SO " " Rector etc. of Qneensbury V. Guiou, 1 All. 6, 93, 105, 164 " " Richards v. Day, 3 All. 440, 26, 163 " " Robinson v. Chassey, 1 Han. 50, 243 " Roberts v. Watson, 1 All. 675, 206, 288, 374, 395 " " Room V. Brown, 3 Kerr 321, 4 " <' Sands v. Phillips, 1 Kerr 86, 533, 173, 174, 290 247 Scott V. King. 3 Kerr 72, " V. " 3 Kerr 178, 296, 492, 60, 51, 341 Scovil V. Roe, 3 Kerr 511, 162 " V. Sentill, 4 All. 58, 249 Seeds v. Connelly, 3 All. 337, 194 Shore t. Gearon, 1 Han. 144, Addenda Shore v. Saunders, 2 Kerr 18, 220 Simonds v. McCoskery, 2 All. 461, 412 Simpson v. Donavan, 4 All. 116, 142, 187 Slason V. Hanson, 3 All, 427, 41, 183, 198, 209, 269 282, 283, 284 Stewart v. McDonald, 1 All. 673, 164, 175, 192 Strange v. Thompson, 1 Kerr 564, 154, 274 Taylor v. Roe, 1 All. 1, 162, 341 Thompson v. Allanshaw, 1 Kerr 84, 93, 110,220 Thompson v. Marks, 3 Kerr 659, 269, 275 Thompson and Wife t. Barnes, Ber. 426, 14Q. 152, 159, 154, 305 Thompson v. Roe, 2 All. 269, 163 Treaawell v. Roe, 1 All. 585, 162 Trider v. Molntosh, 1 Han. 602, 19, 192 Doe dem True v. Fen, 1 Kerr 458, 161 " " Vernon v. White, 4 All. 314, 203 " " White V. Roe, 2 Kerr 360, 19, 161 " " Whitney t. Stanton, 2 All. 632, 408 " " Williams v. Driscoll, 4 All. 176, 273, 361, 408 " " Williams t. Leavitt, 2 Kerr 83, 274 " " Wilt V. Jardine, Ber. 142, 140 Doherty t. DesBrisay, 1 Han. 494, 63, 335 " T. Hogan, 2 Kerr 492, 293 Dolby T. Kinnear, 1 Kerr 480, 92, 280 Domville v. Keevan, 2 Han. 33, 175, 323, 332, 357 Donahue v. Todd, 1 All. 598, 331 Dougan v. Small, 2 Kerr 89, 65, 74 Douglass T. Disbrow, 4 All. 197, 47 Douglass T. Hanson, Ber. 121, 107 Dow V. Dibble, 1 Han. 55, 207, 226, 252 Dowling V. Trites, 2 All. 520, 326 Downing t. Ganet, 2 All. 569, 186, 193 Doyle T. Dougan, 1 Kerr 161, 107 " V. Taylor, Ber. 201, 7, 45, 136, 381 Draper v. Munroe, 3 Kerr 438, 254 Drury v. Howe, 3 Kerr 588, 17, 371 Duff V. Hunter, 1 Kerr 499, 58 Duncan v. Reynolds, 2 Han. 187, 331 Dunn V. Garret, 2 All. 218, 213, 397 Dunn V. Howard, 2 All. 615, 260 Dunlop, Ex parte, 3 All. 281, 256, 257 Dykeman v. Craig, 2 All. 625, 96 Eagles, Ex parte, 2 Hau. 51, 216 " V. Merritt, 2 All 550, 16 Earle v. Deveber, 1 Kerr 348 103 Eaton T. Lawrence, 2 Han. 86, 404 Ellis, Ex parte, 3 All. 601, 89 " V. Newton, Ber. 77, 19 Emerson v. Gardiner, 1 All. 461, 43, 73, 79 30 Emms V. Neill, 3 All. 438, Ennls V. Hastings, 4 AH. 482, Estabrooks, Ex parte, 4 All. 273, " V. McKenzie, C. Ms. 41, 69, 65, 78, 114, 368 " V. Tapley, 2 All. 454, " T. Orser, 1 Kerr 57, Esson V. McMaster, 1 Kerr 501, Estey T. Brown, 2 All. 527, " V. Newcomb, Ber. 343, Executors of Andrews v. Clarke, Ber. 32, 64 63 249 292 16 26 336 F. Fairbanks v. Dolby, 2 Korr 80, 153 229 REPORTED CASES. 488 Falls V. Surgent, 3 Kerr 248, 121, 200, 343 Farley v. Philips, Ber. 347, 336 Faulkner v. Central Ins. Co., 1 Kerr 279, 319 Fawcett v. Nethery, 2 Kerr 81, 346 Fergus v. Mcintosh, Ber. 91, 109 " V. Wardlaw, 3 Kerr 665, 9, 182, 245, 309 Ferguson, Ex parte, 1 All. 663, 92, 377 " V. Munro, 2 Kerr 660, 28, 29, 31 " V. Savoy, 3 Kerr 263, 261, 385, 389, 390 Fiddcs V. Henderson, Chip. Ms. 47, 161, 291 Fisher v. Jewett, Ber. 35, 66, 226, 299 Fitsiuiuions t. Jones, 3 Kerr 596, 206 Flaglor V. Richards, 1 All. 614, 599, 109, 112, 200 Flaherty v- Sayre, Ber. 83, 287 Fleming v. Shaw, Chip. Ms. 117, 27, 244 Fletcher v Hipperdey, 3 Kerr 299, 248 Foley V. Tucker, 1 Han. 52, Forbes v. Holtz, 4 All. 611, " V. Lord. Chip. Ms. 60, Ford V. Ladd, 3 Kerr 287, Forrest v. McRae, 2 Kerr, 174, Forster v. Pine, 2 All. 215, " V. Aniiraux, 2 All. 541, Foshay v. Barnes, 1 Han. 450, " V. Baxter, 1 All 335, Foster v. Brown, 1 Kerr 200, Fowler v. Dowling, 1 Kerr 581, Foulis V. Kinnear, Ber. 26, Fowlie V. Stronack, Ber. 57, Foy V. .-Etna Ins. Co., 3 All. 29, Fraser v. Black, 2 All. 312, 7, 9,194 88 30 59 225 81 116 397 47 94 l27 30,31 343 233 192, 195 " V. Dry nan, 4 All. 74, 131, 212, 2G1 " V. Harding, 2 Kerr 290, 375, 17, 51, 342 " V. " 3 Kerr 94, 183, 184 Fredoricton Boom Co. v. McPherson, 2 Han. 8, 193, 253, " City of, V. Lucas, 3 All. 583 73 217 Frink V. Piatt, 3 Kerr 656, ' 340 Frost V. Disbrow, 1 Hau. 73, 45, 381 " In Re, Estate, 1 Han. 127, 209 " V. Nichols, 3 All. 297, 378 Fulton V. Andrews, 2 All. 359, 59 G. Gnbel v. Harding, 2 Kerr 71, Gandy v. Staples, 1 Han. 615, Garcclon v. Eaton, 3 All. 411, Gardiner v. Mathew, 3 Kerr 601, Guudin v. McKilligan, 2 All. 392, 477, 110, 113, 130, 298, 342, 386 325 93 304 302 Gault V. Mcintosh, Chip. Ms. 140, 58 Gerow, Ex parte, 4 All. 269, 38, 90 Gesner v. Cairns, 2 All. 595, 132, 146, 203, 267, 316, 386 Gibbs V. Deveber, Ber. 78, 116 " V. Steadman, 2 Kerr 406, 292 Gibson v. Bateman, 4 All. 598, 244 « V. Boyd, 1 Kerr 150, 61 Giffard t. Queen Ins. Co., 1 Han. 432, 235 Gilbei t V. Campbell, 1 Han. 258, 471, 5,50,134,153,192,196 " V. Campbell, 2 Han. 55, 57, 85, 89, 195 " Doe dem, v. Roe, 2 Han. 5, 162 " V. Dunham, 2 Kerr 9, 361, 246 " V Goodon, 2 Kerr 374, 250 " V. McLean, 2 Han. 213, 35, 63 " V. McLaughlin, 2 Kerr 633, 33 " V. Palmer, 1 All. 455, 667, 43, 54, 200 " V. Porter, 2 Kerr 390, 179 " V. Sayre, 2 All. 512, 87, 116, 172 " V. Soney, 3 Kerr 679, 56 " T. Stockton, 1 Han. 58, 294 Gilchrist v. Wyer etc.. Trustees etc., Ber. 249, 62 Gillespie v. Fogarty, 1 Kerr 162, 33 Gilmor v. Gilbert, 2 All. 50, 153 Gilmour t. Bull, 1 Kerr 94, 55 " V. Downes, 1 Kerr 88, 344 Gilpin V. Scovil, 1 Han. 379, 102 Girvan v. Price, 3 All. 409, 71, 72 Glass V. Carrigan, 3 All. 295, 251 " Ex parte, 2 All. 88, 54, 151, 166, 331 Glasier v. Fredericton Railway Co. 2 Han. 3, 36 Godard v. Fredericton Boom Co. 1 Han. 536, 134, 293 Godfrey v. Oglesby, 1 Han. 233, 172 Gordon v. French, 2 Kerr 610, 60 Good V. End, 1 All. 603, 121, 319 " V. Winslow, 4 All. 241, 13, 366 Goodwin v. Murray, 3 All. 595, 17, 81, 82 Gobs, Ex parte, 1 Kerr 164, 229 " V. Messinett, 3 Kerr 201, 225, 290, 333 " V. Messinett, 1 All. 104, 337 Gourley v. Gilbert, 1 Han. 80, 408 Gove, Ex parte, Ber. 187, 1 Graham v. Wetmore, 4 All. 373, 377, 323, 364, 366 Grant v. Aiken, Ber. 259, 42, 302 " v. Boyne, 1 Han. 431, 258 Gray, i7xj)arte, 4 All. 118, 278 Green v. Hendricks, 1 All. 698, 63 " V. Kehoe, 3 Kerr 494, 156 " v. Mayor etc. of St. John, 1 Han. 523. 106 4S4 REPORTED GASES. Green t. WillistoD, 3 Kerr 58, 110, 93, 107, 297 Grceuock Church v. Love, 3 Kerr 179, 104 Griffith, Ex parte, 2 All. 93, 278 Groves v. Siason, 1 Kerr 102, 251 Grosvenors, Executors of, v. Agnew, Ber. 29, 113, 209 Grumble V. Perley, 1 All. 376, 512, 323, 342 H. Haddon t. White, 2 Kerr 634, 293, 391 Hamilton t. Bryson, 1 Hun. 618, 204 " V. Love, 2 Kerr 243, 182, 210, 407, 409 Hammond v. Barker, 3 Kerr 634, 146 V. Clark, 2 Kerr 98, 74 " V. Johnston, 3 Kerr 161, 154 " V. Mott, 3 All. 426, 183, 369 " V. Robinson, 2 Kerr 295, 238, 365 " V. Wheeler, 2 Kerr 569, 248 Hampson v. Abbot, 1 Kerr 490, 321 Hanford v. Gidney, 1 Kerr 82, 96 Hanson v. Mawheney, 2 Han. 11, 83, 129 Harding v. Baker, 1 All. 576, 62 " V. Ledden, 2 Kerr 173, . 335 " V. Parker, 2 Kerr 7, 108 Hardy v. Prince, 3 All. 264, 117, 243, 372 Harkins v. Johnston, 1 All. 70, 412 Harley v. Goodfellow, 1 Han. 335, 42, 192 Harrington v. MacManimin, 4 All. 599, 138, 224 Harris v. Beaumont, 2 Kerr 172, 245 " V. Mitchell, 1 Han. 2, 353 Harrison v. Morehouse, 2 All. 584, 208 380 Hartley v. Fisher, 1 All. 459, 694, 48, 97, 268, 288, 304 Hartt, Ex parte, 3 All. 122, 257, 259 Hasluck v. McMaster, Chip. Ms. 4, 243, 252 " v. Watson, 2 Kerr 362, 342 Hassel v. Wilson, 1 All. 618, 32, 317 Hastings v. Hennigar, 4 All. 357, 78 " V. O'Mahoney, 4 All. 305, 66 Hatch v. Scoullar, 1 Kerr 571, 331 Hatheway v. Cliff, 2 All. 267, 28, 84, 135 " V. Day, 4 All. 695, 230 'f V. McMahon, 2 Kerr 209, 263 Hatton V. Flaherty, Ber. 129, 340 " V. Wilmo^, 2 Kerf 324, 75 Hayward v. Mnino, I Kerr 292 376 " V. White, 2 Kerr 304, 145, 294 llnynes v. Chnlinors, Chip. Ms. 1, 58 Ilazcn V. Bryson, 2 All. 580, 246, 252 " V. " 3 All. 101, 176 Hazen v. Drummond, 4 All. 267, 8, 84, 311 Hea V. Jones, 2 All. 646, Addenda " V. McBeath, 2 Kerr 301, 148 Heaney v. Lynn, Ber. 27, 124, 275 Hebert, Ex parte, 3 All. 108, 90, 138, 222 Hendricks v. Titus, 2 Han. 77, 398 Hendricks v. Hallett, 1 Han. 170, 185, 111, 113, 171 Hennigar, i;'x/)ar2, 268 20 Nesbitt V. McLean, 2 Kerr )5, New Brunswick Assurance C^. v. Ansley, 2 Kerr 196, 73 N. B. and Canada Railway and Land Co., Ex parte, 4 All. S76, 35 N. B. and N. S. Land Co. v. Kirk, 1 All. 443, 197, 266, 299, 344 Nicholson v. Marks, 3 All. 21. 249 Noble V. Billings, 3 All. 85, 253 « 7. Temple, 1 Han. 274, 402 Nowlin V. Anderson, 1 All. 497, 262 " V. Roach, 2 Kerr 337, 68, 69 Nugent V. Barron, 2 All. 621, 28, 31 0. O'Brien v. Wetuiore, 1 ;» .1. 594, 47 O'Connor v. Land Co., 1 Kerr 276, 104 " V. Mott, 2 Kerr 509. 336,341,359 Olive V. Belyea, 1 All. 462, 297 O'Regan v. Bcrryuiont, 1 Kerr 167, 337 " Ax;)^!^^, 3 All. 261, 90 " V. Robinson, '.\ Kerr 224, Addenda Oulton V. Carter, 4 All. 169, 223 " V. Morse, 2 Kerr 77, 2J3 " V. Palmer, 2 All. 364, 57, 251, 325 " V. Sc.vil, 1 Han. 498, 200 Outhouse V. Hickman, 1 Han. 38, 379 P. Palmer, A'xpar^r, 2 All. 533, 52 " V. L„i„r, Ber. 122, 8, 21 " V. Gilbert, 1 All. 505, 199, 297 '' V. Wilbur, 3 All. 443, 78, 179, 199 Paronv v. Cornelison, Ber. 235, 388 Parker v. England, 3 All. 340, 400 Parka, Ex parte, 3 All. 237, 186, 199, 256, 258 Partelow v. Smith, 3 Kerr 349, 333, 340 Passuiorc v. Turner, C. Ms. 103, 328, 340 Patterson v. Patterson, 1 All. 490, Addenda r. Tajley, 4 All. 292, 629, 69, 72 Payson v. Good, 3 Kerr 272, 97,140, ^54,178 Pease v. MoAloon, 1 Kerr 111, 396 Peck V. Darberie, 1 Han. 515, 95 " V. Tin^ley, 1 Han. 418, 55 " V. Robinson, 2 Kerr 687, 38, 357 Poele T. Robinson, 4 All. 561, 67 Pelton V. Temple, 1 Han. 274, 174, 194, 207 Percival v. McKenzie, 1 Kerr 498, 163 Perkins v. The Equitable Ins. Co., 4 All. 562, 233, 236 Perley v. Dibble, 1 Kerr 514, 221, 390 " V. Howard, 2 Kerr 518, 68 Perks, In re, 2 Han. 121, 227 Peters v. Drawyer, 3 All. 432, 248 " V. Irish, 4 All. 326, 78, 193 " V. Perley, 2 All. 686, 60, 173 Peterson v. Hiuding, 4 All. 683, 12 117 Petty V. Hammond, 3 Kerr 686, 343 Phillips V. St. John Water Co., 4 All. 24, 15, 120 Pickett V. Perkins,, 1 Han. 131, 10, 255 " V. Pickett, 1 Han. 156, 386 Pingree v. Watson, 3 Kerr 261, 45 Pitt V. Lawson, C. Ms. 67, 38, 220 Policy V. Waterhouse. 3 All 291, 100, 268 Pollock V. Cunard, 2 Kerr 291, 3, 303 " V. Fisher, 1 All. 615, 397 " V. Gardner, 2 Kerr 655, 82, 83, 363 " V. Ritchie, 3 Kerr 351, 109 " V. Short, Ber. 279, 58 Pool V. Hill, 2 Kerr 184, 245 Porter v. Burns, 1 All. 106, 61, 114, 341 Portland and Luiicastur Steam Ferry Co. V. Pratt, 2 All. 17, 239, 240, 252, 297 Pourricr v. Raymond, 1 Han. 612. ?07, 225 Power V Johnston, 1 Kerr 492, 204, 324 " V. " 2 Kerr 43, 372 Prescott V. Walton, 2 Han 230, 198, 293, 393, 411 Preston v. Sir.onds, 1 Han. 44, 310 Purvis V. Hume, 3 All. 299, 102, 260, 377 Q. Queboo and Halifax Steam Commis- sioners V. Cunard and Allan, Ber. 47, 353 Rao V. Rankin, 2 Kerr 463, 13 Rainsbury v. Ross, 2 Kerr 179, 61 Ramsay v. Hamilton, 2 Kerr 611, 6 Rankin v. Anderson, 4 All. 636, 250 " V. Clark, Ber. 303, 184 " and Gilmour v. Downes, 1 Kerr 88, 344 " V. Emory, Ber. 330, 101, 225 " V. Goddard, 4 All. 166, 99, 253 " V. iiarloy, 1 Han. 271, 186, 303 '< V. Letfion, 1 Hun. 29, 329 « V.I « v.i 41 T.i « T. C 1 of 2-5^ 6 7 8, 9 in 9Aaad9B 10 11,12 13 14-26, 124 ... 26,29 ■ 30 31,32 Calculation of Interest Clerk of Pleas — Regulations to be observed in office of. Confession of Judgment Consent Rule. See Rule ^Consent). Costs— Tsxation. See Bills of Costs. Counte^nand. See Notice of Countermand. Crown Office — Regulation to be observed in office of Crown Paper. Sm Special Paper. Damages — Assessment of ... ... Interest on form of entiy of Judgment ... Deed — Proving execution of. See Subpoena. Declarations De&ult — Non Pros— Judgment Delivery of Pleas. See Pleas. Demurrer and Special Oasee Demurrer Books Divorce and Matrimonial Causes ]|jectment Entry of Cause in Clerk's Office Entry for hearing at Sittincs in Equity Entry for argument. See Appeal Paper Mulioit Paper. Entry at Nisi Priiis. See Trials at Nisi Frius. Entry -Interest -Judgment Boll ., Equity Appeal Paper Equity^lorvice oa Non ^ /- Photographic Sciences Corporation 93 WIST MAIN STRUT WnSTIR.N.Y. USIO (7U)I73-4S03 4^ ^J6^^ \ 450 RULES OF COURT. be put up in the Olerk's 0£Boe ; and that all notices, served on such Agents, res- pectively, shall be deemed as proper and legal a service as if served upon such attorney. HUary Term, 7 William 4, 1837. 7 — Whereas, It is deemed improper that any clerk in the Office of the Clerk of the Pleas of this Court should act as an agent of any attorney with or without any remuneration or gratuity, It w' Or- dered, That henceforth no attorney of this Court do employ any such clerk as his agent in any «uit or matter pending in this Court, or in the transac- tion of any business in the office either of the Clerk of the Crown, or Clerk of the Pleas; ftnd that the Clerk of the Ple&:i do not allow or suffer any clerk or 'xher person employed in his offioo to act o m(>a agent under any pretence what- n..c''cr. trinity Term, 3 Yiotoria, 1840. H—.Jfii, further Ordered, That henceforth no Attorney of this Court do employ any student in the office of a Barrister of this Court, as his Agent in any suit or matter pending in this Court, or in the transaction of any business before a Judge or in the Office either of the Clerk of the OroWn or the Clerk of the Pleas ; and that no Barrister of this Court do suffer any one of his students to act as the Agent of any other attorney. Provided that this rule shall not extend to prevent the employment by a Barrister, wno may himself be the Agent of any attorney, of any student in his office in the profbssional business of such attorney. 8-.Thfl Judges will in ftiture expect, that in the assessment of damages in vacation, as well as in other matters brought before them out of Court, where the parties do not appear in person, they bo attended by a Barrister or Attorney of tho Court ; or where thb cannot oonvenientlv be done, that the clerk ot student employed to attend on behalf of anv attorney, be of competent experience, skill and know- lodge of the business entrusted to him. APPEAL PAPER. HUary Term, 38 Victoria, 1869. A — ^It is ordered that hereafter there shall be but one appeal paper and that the Clerk of the Pieas shall enter causes thereon in tho following order :— 1st. Appeals from the decision of a Judge in Equity. 2nd. Appeals Arom the Court of Divorco and matrimonial oauses. 3rd. Appeals from Court of Probate. 4th. Appeals under the Aet 27 Vic, c. 44, for winding-up the affairs of incorporated companies. 5th. Appeals from the County Courts — and, in case of any other appeals not hereiu'^fter provided for, they shall bo entered after the County Court Appeals in the order of time in which they may be allowed by law. All appeals shall bo heard in their order, and at the time prescribed by the rules of Court. Trinity Term, 31 Yiotoria, 1868- 9 B — 1st. When the minutes of any decree shall not bo settled under the Act 17 Vic, c 18, 8. 32, more than fbniteen days before the first of any term, u party intending to appeal therefrom shall on tor the cau8o on the Equity Appeal Paper of the term next after the settling of such minutes, but may obtain the order of a Judge to postpone the hearing of such appeul until the second term thereafter, which order shall be made unless good cause bo shown to the contrary, and such order shall direct the time of serving the grounds of appeal on the opposite party. 2nd— Where an appeal is intended to bo made fit>m any order of a Judp;e in Equity in a cause where no decree u made, and such order shall have been made within fourteen days before the first di^ of any term, a like order may be made as is pro- vided for in the preoeding rule. Srd — Whenever an appeal is made IVom a decree or order of the Court or of a Judgo in Equity, or from the Court of Divoroo and matrimonial causes or ftom a Pro- bate Court, the Court may order the whole or any part of the pleading, evi- dence, judgment or other prooeedin|^ to be printed, and such numoer of pnnted oopiea thereof to be ftirnished for the use of the Appellate Court as may be deemed neoesaary, and may make order for tho payu costs 4th-l All Sittii the ( first I shall bo ke not 8 the Court Ea8t( 10- 0» RULES OP COLur. 461 payuienk of the expenses thereof in the costs of the suit. 4tli— Hearing Oauses. All causes intended for hearing at the Sittings in Eqaity, shall be set down with the Clerk in Equity six days before the first day of the sitting of the Court, and shall be entered by him on a docket to bo kept for that purpose; and no cause, not 80 entered, shall be heard without the order of the Judge sitting in such Court. APPEARANCE. EMter Term, 25 George 3, 1785. 10 — Ordered, That where an attorney ap- pears for the defendant, a copy of the declaration, with notice of the rule to plead, shall be served on him, he paying for such 6opy at the rate of sixpence per sheet, and on default of pleading in twenty days, judgment to be entered, and a writ of inquiry may be executed as aforesaid, a plea being first demanded after the 'said twenty days. ASSESSMENT OF DAMAGES. Trinity Term, 26 George 8, 1786. 11 — Ordered, That in causes where inter- locutory judgments have been signed, and the causes of action appear to be upon complicated accounts, the same shall be referred to a jury of inquiry, and judgment shall be considered to bo entered aa of the precedent term. Miohaelmai Term, 6 William 4, 1836. 18 — It M Ordered, That in all oases, where application shall be made to a Judge in vacation after judgment by default, to make inquiry or assessmtot, under the Act of Assembly 5 Wm. 4, o. 37, s. 9, there shall be produced to the Judge a certificate or memorandum, of the day on which interlocutory judgment was signed, or judgment by default entered, signed by the Clerk of the Pleas or his deputy ; and that no such inquiry or assessment shall be made, unless such certificate or memorandum bo so produced. ATTACHMENT, Hilary Term, 16 Victoria, 1869. 13 — It is Ordered, That in ftituro no attachment do issue unless taken out in the : m during which the same may have been granted, or in the vacation next succeeding the same, without the order of the Court, or a Judge. See No. 136. ATTORNEYS. Hilary Term, 60 Oeorge 3, 1820. 14 — It is ordered, That in future, no attor- ney of the Court not being an established resident within the Province, he permit* ted to act as an attorney of this Court. ATTORNEYS, BARRISTERS AND STUDENTS— (ADMISSION OF.) Hilary Term, 4 Oeorge 4, 1823. 16 — Ist. It is Ordered, That hereafter, no person, who shall study the Law in this Province for the purpose of being admit- ted an Attorney of this Court, shall be so admitted unless he shall have so studied with some Barrister of this Court for the term of four years, if he be a Graduate of any College, or if not ^uch Graduate, for the term of five years: Provided, That this Rule shall not ex- tend to any person who shall have com- menced his studies under any Barrister of this Court before the commencement of the preseri; Term. 2nd. That no person producing a Certificate of admission as an Attorney of the Su- preme Court of any other Province, Colony, or Island, in His Majesty's dominions, in order to obtain admission and enrollment as an Attorney of this Court, shall be so admitted and enrolled, unless he shall have served a regular Apprenticeship in such Province, Colony, or Island, agreeably to the terms pre- scribed in the foregoing rule for Students at Law in this Province, nor unless he shall produce an authenticated copy of the Certificate of such servioe, bv vmue of which he may have obtained admission as an Attorney of the Supreme Court of ■uoh Province, Colony, or Island, nor unless such Certificate shall include the qualifications as to age and moral oharao- ter requisite in that behalf to be included in Certificates of servioe as Apprentices to the Law in this Province. 3rd. That after the expiration of two years fVom the time of admission as Attorneys, such Attornu^a may be called to the Bar, provided there appears no just cause to prevent such call. w^ 462 RULES OP COURT. 4th. That no peraon, admitted as an Attor- ney of this Court, shall, nntil he be called to the degree of a Barrister, be permitted to wear a Gown, or to make uny motion as Counsel in any cause in this Court. 5th. That notice of every application, for admission as an Attorney of this Court, be filed with the Clerk of the Pleas on the first day of the Term at which such application may be made. 6th. That no person, under the degree of a Barrister, be hereafter entitled to take a Student for admission as an Attorney. 7th. That every Barrister taking a Student for admission as an Attorney, shall enter the name of such Student forthwith, with the Clerk of the Pleas of this Court, to be enrolled by him in a Roll to be kept for that purpose, with the date of the commencement of such Student's term of study. 8th. That no Student in any Barrister's office, shall be permitted hereafter to practice in the name of any Attorney, or otherwise, in any Inferior Court of Com- mon Pleas in this Province. Hilary Term, 6 George 4, 1825. 16 — Orderedy That whenever any Attorney of this Court shall be desirous of being called to the Bar as Barrister, he shall make known his wishes, by petition to the Court, on the first day of the Term — which Petition shall be delivered to the Clerk, and be open for the inspection of Gentlemen of the Bar, until the sitting of the Court on Thursday following in the same Term, when the Court will deter- mine upon the said Petition. MiehaelmaB Term, 6 William 4, 1835. 17 — It M Ordered, That any Attorney, who, on his being admitted an Attorney, was a Graduate of any College, may bo called to the Bar after the expiration of one year from the time of his admission as an Attorney. Miohaelmai Term, 1 Yiotoria, 1887. 18 — 1st. Whereat it is expedient, That every person desirous of being admitted as an Attorney of this Court, should, before such admission, bo examined as to his fitness and capacity to act as such Attor- ney It u Ordered, That the Judges of this Court, together with four Barristers of not less than five years standing, to be for that purpose appointed by rule of Court in Hilary Term in every year, or any two of them, whereof a Judge to be one, shall be competent to conduct the examination of any person who may have made application for admission as an Attorney of this Court in the form here- after mentioned; and that from and after the last day of next Hilary Term, subject to such appeal as hereafter men- tioned, no person shall be admitted to be sworn as an Attorney of this Court with- out the production of a certificate signed by such examiners, testifying his fitness and capacity to act as an Attorney. 2nd. It it Ordered, That the said exami- nation shall be held at such times and E laces respectively, and under such regu- itions as the Judges, or any three of them, may from time to time appoint. 3rd. That in case any person shall be dis- satisfied with the refusal of the examiners to grant such certificate, he shall be at libert;^ to apply fur admission, by petition in writing to the Judges: which appli- , cation shall be heard by not less than three of the Judges, at such time and place as they may appoint. 4th. That every person who may desire to be admitted an Attorney, shall, on or before the Thursday in the first week of the term immediately preceding that at which he shall propose to be admitted, make application by Petition to the Court, in the form hereunto annexed, or to the like efiect, which petition shall bo accompanied by the requisite certificates of the age, moral character, and service of the applicant ; and the certificate uf moral character shall be full, positive niid explicit, and shall contain particular tettti- monials to the sober and temperate tiubits of the applicant, and the Court, if sat- isfied with the certificates, will, during such term, make order for the exami- nation of such applicant, 6th. That the foregoing rules touching examination, shall extend to persona wliu may apply for admission upon cmtificatcs iVom any other part of Her Majesty's dominions, as well as to persons who tuny have pursued their stuaics in this Pro- vince ; and any person coming from any other part of Her Majesty's ddininious shall produce a cortifioate tiom the Court in which ho may have become a praoti- RULEH OP COUKT. 463 tioner, or one of the Judgen thereof, that he has conducted hinisolf with credit and reputntioii since his admission there. Gth. fh&t no Attorney of this Court who shall have been absent from the Province, or have discontinued the practice of the Law for the space of five years together, shall hereafter be permitted to commence or resume practice as an Attorney until he be re-admitted and re-sworn. 7th. That every attorney who may desire to be re-admitted, shall apply by petition to the Court, stating therein the place or places in which he may have resided, and the buBiness, profession or employment in which ho may have been engaged or con- cerned since his first admission; which petition dhall be verified by the affidavit of the petitioner, and shall be presented to the Court on or before the Thursday in the first week of the term, immediately E receding that at which he may desire to e re-admitted. 8th. That every applicant for re-admission shall be examined as to his fitness and capacity to act as an Attorney, in the same manner as if applying for a first admission, unless the Court shall see fit in any case to dispense with such exami- nation, and shall make order accordingly. 9th. That from and afler the present Michaelmas Term, no Attorney of any other part of I ^r Majesty's dominions shall be admitted as an Attorney of this Court, unless he shall have entered ns a Student with one of the Attorneys of this Court, having the rank of Barrister, and resident and practising in the Pro- vince, and shall have continued as such Student for one year ; the entry of every such Student to bo registered with the Clerk, as in the case of other Students ; and a certificate of such year's study from tho Barrister with whom the same may have been performed shall be one of tho tOHtimoiiialfl iioeossiiry for tho admission of such iipplioaut. Form o/ Petition for Arnduoo nn iiddlttonnl oortlflflnto tn that otfoot ut the cnsnioR torin, 454 RULES OF COURT. Trini'.y Tern, 5 Victoria, 1842. 21 — It M Ordaredy That Students, applying tor examination after four years' study, ! oo the ground of being Graduates of «ouie College, do, in addition to the certificates now required, produce certifi- cates from the President, Vice-President, or some resident Professor of the College, stating the particular period during which their Collegiate studies have been pursued. Trinity Term, 6 Victoria, 1843. 22 — Ist. Whereas it is expedient that there should be an examination of persons who may hercatlber desire to enter upon the study of the Law, in order to their admis- sion as Attorneys of this Court, It is Ordered., That such and so many Barris- ters as may fur that purpose from time to time be appointed by rule of Court, or any two of them shall be competent to conduct the examination of any person who may have made application to be admitted a Student ; and in order to such examination, application shall be made by petition to this Court by such person, stating his age, place of birth, and pre- sent residence; the name and place of residence of his father or guardian, and the several branches of education in which he may have been instructed; and that proper ctirtificates as to charac- ter and habits shall accompany every such petition ; and this ('ourt will there- upon make such order for the examina- tion or otherwise, as may appear neces- sary and proper. 2nd. That no entry shall be made in the Clerk's book of any Student, nor shall he be deemed to have commenced his study of the Law with any Barrister, until he produce the certificate of the examiners before whom his examination may be had, testifying his fitness and capacity. 3rd. That in case any person shall be dis- satisfied with the refusal of the exami- ners to grant such ocrtificute, hn shall bu at liberty to apply, by petition, to the Judges, who will uiake such order there- upon as the case may in their opinion require. 4th. That every Student who may be transferred from one Barrister to another, during the progress of his studios, shall forthwith deliver to the Clerk a memo- randum of such transfer, accompanied by a certificate of the Barrister whose office he may be desirous of leaving ; or in case of his death, absence, or refusal to grant such certificate, the certificate of the Barrister to whose office he is transferred, of the cause and reason of such transfer. 5th. That the aforegoing rules shall not extend to persons who may already have been admitted as Attorneys in any other part of Her Majesty's Dominions; but that such persons before being registered as Students under the ninth rule of Michaelmas Term, 1 Vic, shall apply, by petition, to the Court, accompanied by the requisite certificates; and the Court will make order thereupon. 6th. That if any person, who may, after his oommencing to study the Law, have discontinued the same, shall be desirous of resuming his studies, he shall apply, by petition, to the Court for that pur- pose, who will make such order there- upon in regard to the time of his previous study, as may appear meet ; otherwise the time of such former study shall not be allowed to such Student. iichaelmaa Term, 11 Victoria, 1847. 23 — Whereas certain rules and regulations, touching the examination of persons as Students at Ijaw, and Attorneys, and the admission of Attorneys and Barristers of the Supremo Court, were duly made by the Barristers' Society in Hilary Term last, at a meeting of the said Society holden at Frederiotou, pursuant to the Act of Assembly, 9th Vic. c. 49, which said rules and regulations have been sanctioned by the Judges of this Court, in conformity to the said Act, and are as follows : — " At a meeting of the Barristers' Society of New Brunswick, holden in the Supreme Court Room, at Fredericton, this eighth day of Februarv, A. D. 1847, the following rules were adopted : — Rtde.» touching thf Exnmination of penaiiit as Stndi'.nts at Laio and Attorneys, and nyufatinif the mlmission of Attorneys and Barristers of tJte Supreme Court. " I. That before any person is presented to the Barristers' Society for the purpose of being examined, in order to his being entered as a Student 'n the Office of any Barrister of this Sor jty, ho shall present RULES OP COLRT. 455 a Petition to the Benchers, setting forth his a^, place of birth, residence, place of education, the branches in which he is prepared to undergo an examination, II nd the name of the Barrister with vhom ho purposes studying; which Petition shall be subscribed by the applicant, and certified by such Barrister, as to his charact«r und habits, and that he verily bolieves him to be a proper person to be admitted as a Student at Law ; and upon MUch applicant being approved of by the Benchers, he shall bo fully aud strictly oxauiined in the English and Latin Languages, Mathematics, Geography and History, by the said lienchers, or any three of them, at Fredericton. >' II. That upon the applicant passing such examination, and the Benchers being satisfied as to his m^kal character, good habits, and fitness to enter upon the study of the Law, he shall receive a certificate to that effect. "III. Thot every Student making applica- tion for admission as an Attorney, shall give a Term's notice thereof to this Society, and shall undergo a full and strict examination before the Benchers, or any three of them, in the Elementary principles of the 'of, or from the Term whereof the same is granted, with- out the order of the Court, or of a Judge. CONSENT RULE. See Rule (Consent.) COSTS— TAXATION. See Bill and Taxation— Security fur Costt*. CROWN OFFICE. Regulations to be observed. See 98, 136. CROWN PAPER. See Special Paper. DAMAGES (ASSESSMENT OF.) See No. 11. Damages — Interest on — Form of entry of Judgment. See No. 51. DEED — PROOF OF EXECUTION. See Subpoena. DECLARATIONS. Easter Term, 25 George 3, 1785. 35— That all Attorneys file their Declara- tions on or before the last day of the Term next ensuing the return and filing the Writ, or be nor. prosaed. Easter Term, 26 George 3, 1786. 36 — It is Ordered, That upon all Process where no Affidavit is made or filed of the cause of action, the Plaintiff' may file or deliver the Declaration De Bene Esse at the return of such Process, with notice to plead in twenty days; and if Defendant doth not enter an appearance or file com- mon Bail, and plead within the said twenty days. Plaintiff having first filed common Bail for Defendant, may sign Judgment for want of a Plea, provided that such Declaration be delivered or filed in the Clerk's Office with notice thereon, within twenty days after the return of such Process, and a rule to plead be duly entered. Kiohaelmai Term» 6 George 4, 1825 Z7—It is Ordered, That the time for de- livering or filing Declaiations De Bene Esse, agreeably to the rule made in Easter Term in the 26th George 3, be enlarged to thirty days. RULES OF COURT. 469 DEFAULT— NON PROS— JUDO- MBNT. Hilary Term, 6 William 4, 1836. 38 — It is Ordered, That no Judgment of Non Prot shall be signed for want of a declaration, replication, or other subse- quent pleading, until ten days next after a demand thereof shall have been made in writing upon the Plaintiff, his Attor- ney, or Agent, as the cose may be. Hilary Term, 3 Viotoria, 1839. 39 — Ordered, That in future where the Defendant in any action shall plead one or more special pleas, and serve copies on the Plaintiff's Attorney, with rule to re- ply in twenty days, the Plaintiff shall file and deliver his replication in twenty days from the time of such service of plea and rule, and in default thereof the Defendant shall be entitled to judgment of non pros, a replication being first demanded after the said twenty days ; and in like manner twenty days shall be allowed for every subsequent pleading, and the opposite party shall be entitled to judgment by default or non pros, as the case may be, for not rejoining, surrejoining, etc., a rule to rejoin, surrejoin, etc., being served and demand made as aforesaid, unless the Court or a Jud^ shall think proper to allow further t;me. Provided that no such judgment of non pros or default sjiall be signed until ten days after de- mand of replication, rejoinder, etc. That all such rules to reply, rejoin, surre- join, etc., may be taken out in vacation and entered as of the preceding term, the Attorney delivering to the Clerk a prae- cipe for such rule. DELIVERY OF PLEAS. See Pleas. DEMAND OF PLEAS. See Pleas. DEMURRER AND SPECIAL OASES Trinity Term, 3 Viotoria, 1840. 40 — It is further Ordered, That where a general Demurrer shall hereafter be put in to any Declaration or other pleading, the party putting in the same shall de- liver at the same time to the opposite party a statement or minute of the grounds of such Demurrer ; and if the opposite party intend to rely on any de- fecta in the previous pleading, he shall deliver with the joinder in &murrer a statement or minute of such alleged de- fects ; and such particulars shall be enter- ed in the margin of the books delivered to the Judges. This regulation to ex- tend also to cases of Special Demurrer where other grounds are intended to be relied on, than those specifically set out. Hilary Term, 9 Victoria, 1846. 41 — Ordered, That twenty days from the delivery of a copy of any demurrer, shall bo allowed to the opposite party to join in demurrer, and furnish a note of objections to the previous pleading, (if any) i^ree- ably to the rule of Trinity Term, 3 Vic. ; on failure of which, the joinder in demur- rer may be added by the party demurring, in making up the demurrer book ; and no copy of such demurrer book need be served on the opposite Attorney, nor shall any motion or rule for a concilium be requir- ed; but demurrers, as well as special oases and special verdicts, shall be entered for argument at the request of either party, of which notice shall be given to the opposite Attorney eight days before the term at which such entry is made. Trinity Term, 31 Viotoria, 1868. 41 A — All special cases submitted for the opinion of the Supreme Court, — either on the Equity or Pleas side, — shall be printed at the joint expense of both par- tics, and copies thereof furnished for the use of the Judges and for the Clerk of the Court, and the cost thereof shall be taxed and allowed after the decision of the case according to the rights of the parties. DEMURRER BOOKS. Trinity Term, 2 WiUiam 4, 1831. 42 — Whereat expense is often unnecessarily incurred in making up Demurrer Books, firom setting forth tnose parts of the pleadings to which the Demurrers do not apply. It is there/ore Ordered, That from and after the end of this Term, when there shall be a demurrer to part only of the declaration or other subse- Juent pleadings, those parts only of the edaration and pleadings to which such demurrer relates shall be copied into the Demurrer Books ; and, if any other parts 460 RrjLKS OF COURT. shall bo copied, the Clerk shall not allow the oosta thereof on taxation, either as between party and party, or as between Attorney and Client. Hiluy Term, 6 WiUiam 4. 1836. 43 — It 1* Ordered, That Demurrer Books be delivered to the Judges on or before the first day of the term at which the Demurrer is to be argued, the books for the Chief Justice and senior Puisne Judge to be prepared and delivered by the Plaintiff's Attorney, and the boou for the two junior Judges by the De- fendant's Attorney: and that the same rule do ahto apply to other cases in which paper books are required by the practice of the Court to be delivered to the Judges. XiehaelmM Term, 9 Viotoria, 1845. 44 — Ordered, That if either party make de&nlt in the delivery of the demurrer books, as required by the rule of Hilary Term, 6 Wm. 4, the other party who has complied with the rule, may move for judgment without having delivered books to all the Judges. DIVORCE AND MATRIMONIAL CAUSES. See Appeal Paper 9 A B. Hilary Term, 36 Yiotoria, 1863. A5—It u Ordered, That the Clerk of the Pleas do keep a Paper, to be called the Divorce and Matrimonial Appeal Paper, in which shall be entered all Appeals from decisions of the Court of Divorce and Matrimonial Causes; such entries to be made on or before the first day of the Term next after the decisions in the said Court; such appeals to be heard next after the Equity appeal paper. 46 — It i$ Ordered, That upon hearing of an appeal from the Court of Divorce and Matrimonial Causes, pursuant to the Act of Assembly, 23rd Victoria, cap. 37, it shall be the duty of the appellant to pro- cure and file with the Clerk of the Pleas in this Court, '^rtified copies of the libel and answer and Decree; and that on hearing the appeal, the evidence be re- ceived from the Report of the Judge of the Court of Divorce and Matrimonial Causes. ' ' ' i! DOCKETS. See Records, etc. EJECTMENT. XiehaelmM Term, 6 William 4, 1835. 47— It i$ Ordered, That in all actions of ejectment, the notice to appear may be for any return day s^ificAlly, but when the notice to appear is for the term gen- erally, the day of appearance shall be the first day of the term. It ia Ordered, That in all actions of eject- ment, there shall be fourteen days exclu- sive between the day of serving the declaration and the day of appearance, whether the person served with the declaration lives within the County where the Court sits or not, any former Rule to the contrary notwithstanding. Trijiit:r Term, 6 WiUiam 4, 1836. 48 — It u Ordered, That the notice to ap- pear in Ejectment, shall not be made m tutnre for the return day in the second week of the term ; but for the term gen- erally, or the Tuesday or Saturday in the first week. Consent Rules. (See Nos. 102, 103.) ENTRY OP CAUSE IN CLERK'S OFFICE. See Appeal Paper 9 A and B. See Rules 40, 41. Easter Term, 11 Yiotoria, 1848. Entry of Cause. See 9 A and B. 49 — No Judgment, interlocutory or final, to be signed in any cause until it is ascer- tained, upon search, that the cause has been duly entered ; provided, that where there is an interlocutory judgment, the search need not be repeated when final judgment is signed; and provided also, that entries may be made as heretofore accustomed in oases of Warrants of At- torney to confess judgment. ENTRY FOR HEARING AT SIT- TINGS IN EQUITY. Trinity Term, 31 Victoria, 1868. 49 A — All causes intended for hearing at the Sittings in Equity, shall be set down with the Clerk in Equity six days before the first day of the Sitting of the Court, RULES OP COURT. 461 and shall be entered by him on a Docket to bo kept for that purpoHe, and no eause not 80 entered shall be heard without the order of the Judge sitting in such Court. Entry of cause for argument. See Appeal Paper — Motion Paper. Entry of Cause — Equity Appeal Paper. See Appeal Paper 9 .4 and B. Kiehadmaf Term, 19 Victoria, 1855. 50 — It i» Ordered, That a Paper be pre- pared by the Clerk of the Court on the Equity side, and delivered to the Court on the first day of each Term, containing a List of the Causes in Equity in which appeals are to be heard, whicn shall be called the Equity Appeal Paper, and the Causes therein shall come on to be heard in order next after the Special Paper of the same Term. ENTRY ON JUDGMENT ROLL— IN- TEREST ON DAMAGES. Kicliaeliiias Term, 80 Victoria, 1866. 51 — It is Ordered, That where interest is awarded under the Act of Assembly 12th Vit;to)-ia, cap. 39, sec. 29, the entry on the Judgment roll shall be in the form following, or to the like effect : — "Therefore it is considered that the said plaintiff do recover against the said de- ilendant, etc. etc. etc., together with now adjudged by the Court here to the said plaintiff for interest upon the da- mages (or debt) pursuant to the Act of Assembly in such case made and provi- ded, because the final judgment has been delayed by the act of the defendant ; and also for his costs and charges, etc. etc. etc., which said damages, interest, costs, and charges, amount in the whole to ." Equity Appeal Paper. See Appeal Paper 9 A and B. Equity — Service on Non-residents, rractiuo in Kquity. See EXAMINING WITNESSES UPON INTERROGATORIES. Hilary Term, 7 William 4, 1837. 52 — It i* Ordered, That the party apply- ing for the examination of a witness or witnesses de bene eaie, under the Act 26 Geo. 3, c. 20, or for an order for such examination, or for the issuing a commis- sion, under the Act 5 Wm. 4. o. 34, do state in the affidavit or affidavits upon which such application is founded, the nature of the action, the venue, and the state of the pleadings or prooeedings at the time of such application; also the name of the opposite Attorney or agent : and do also, whenever lime will permit, give notice of such application, tosethcr with a copy of the affidavit or affidavits, to such attorney or agent. FOREIGN JUDGM RNT — HOLDING TO BAIL UPON. Hilary Term, 26 Victoria, 1863. 53 — It is Ordered, That no person shall bo held to bail upon the Judgment of the Court of any Foreign Country, or of any British Colony, without a Judge's order. GRADUATE'S CERTIFICATE. See Attorneys, Barristers, etc. HEARING CAUSES -ENTRY. See Appeal Paper 9 F 4. INFANT^^ -PROCEEDINGS AGAINST. Trinity Term, 31 Victoria, 1868. 53 A — When any person residing out of the Province, against whom n suit is commenced, is an infant, and does not appear within the time limited by the order made for that purpose, under the Act 17 Vic. 0. 18, s. 3, the Court may make the like order fur the appcnrauce of the infant, as is provided by the 12th rule of the 6th July 1856 (See Botaford Rules 23), and at the expiration of the time so limited, th^ plaintiff may proceed to prove his case against the infant in the milliner provided by the said rule. Interest — Calculation of — Mode. Sec No. 33. Interest on D:iiU!i<,'C8— Jud^niunt form of. See No. 61. Interrogatories — Examination on. See No. 52. INTERLOCUTORY JUDGMENT. Easter Term, 25 George 3, 1785- 54 — That on filing a Declaration in any action, the plaintiff bo entitled to Judg- 462 RULES OP COURT. meat, if the defeDdant doth not plead in tw'inty days after notice of Declaration being filed in the Clerk's Office, the Rule to vh&d being first entered ; and if the defendant hath not entered his appear- ance in such action, the plaintiff may file a common appearance, and enter an Inter- locutory Judgment for want of a ^'lea as of the preceding term, without any im- parlance, and proceed to a Writ of In- quiry as if the same Interloctury Judg- ment had been rendered and entered the same prccedin?^ Term ; and the like proceeding to entry of Judgment and executing Writ of Inquiry, where a de- fendant in custody neglects to plead, pursuant to a rule served on himself, or the Sheriff as aforesaid. Trinity Term, 3 Victoria, 1840. 55 — ft i« Ordered, That Interlocutory Judgment shall not bo signed in any case for want of appearance until the process with the requisite affidavit of service, and (where the case requires) the order of the Court or Judge for perfecting such ser- vice, shall be filed. Trinity Term, 20 Victoria, 1867. 56 — /' « Ordered, That from and after the present Term, in every Memorandum of Interlocutory Judgment, the Term at which the writ has been made returnable be specified on the margin or at the foot of the Memorandum, and that it bo also stated whether the action is summary or not summary. JUDGMENT AS IN CASE OF NON- SUIT. Hilary Term, 6 William 4, 1836. 57 — it is Ordered, That no motion shall be made for Judgment, as in case of a non-suit, pursuant to the Statute 14 Geo. 2, c. 17, without notice hnving been first given thereof to the plaintiff, his attorney or agent, as the case m.iy be, together with a copy of the uffidavlt on which the same is gioundod, at least fourteen days before the term at which huuIi motion is intended to be made, and without enter- ing the same on the Motion Paper. It w Ordered, That on motion made in open < e paid to the plaintiff, and the defendant further says that the plaintiff has not sustained damages (or in actions o/debt "that he is not indebted to the plaintiff") to a greater amount than the said sum of etc., in respect to the cause of action in the Declaration mentioned," (or " in the introductory part of the plea mentioned) and this he, the defendant, is ready to verify, wherefore he prays judgment, if the plaintiff ought further to maintain his action thereof against him ;" and no other plea shall be pleaded to the said action, or to so much thereof as the said plea of payment into Court is applicable. It is Ordered, That upon u rule or Judge's order being made for paying money into Court under the said Act, the money shall be paid to the Clerk at the time of filing the plea, together with his pound- age thereon, and the Clerk shall make a minute of such payment in the margin of the plea, and shall also give a memoran- dum of such payment to bo delivered with the copy of tne plea to the plaintiff's attorney ; wnich sum shall be paid out to the plaintiff's attorney on demand. It is Ordered, That the plaintiff, after de- livery of a plea of payment of money into Court, shall be at liberty to reply to the same, by accepting the sum so paid into Court, iti ftiU satisfaction and discharge of the cause of action, in respect of which it has been paid in, and he shall bo at liberty in that case to tax his costs of suit, and in case of non-payment thereof within ten days, to sign judj^meut for his costs of suit ; or the plaintiff may reply "that he has sustained damages" (or " that the defendant was and is indebted to him" as the case may be) to a greater amount than the said sum; and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his cost of suit : Provided that if the sum of money paid into Court in any action not summary would have been recoverable under the summary form, the plaintiff, if he take the money out of Court in discharge of the action, shall not.be entitled to more than summary costs, unless he obtain the order of the Court or a Judge for the larger costs, upon good cause shewn therefor. PLEA (ABATEMENT.) See No. 1. PLEAS (DELIVERY OF.) Hilary Term, 6 Viotoria, 1843. 86 — Ordered, That in future copies of all pleas shall be delivered to the Plaintiff's Attorney within the time allowed for pleading; otherwise the Plaintiff shall be at liberty lemand of plea being duly made) to si^j interlocutory judgment: and that it shall not be necessary to search for a plea before such signing, after the expiration of the rule to plead. PLEAS (DEMAND OF.) Trinity Term, 6 Viotoria, 1842. 87 — Ordered, That where the Attorneys for the respective parties reside in dif- ferent counties, the Defendant's Attorney shall be allowed seven days after demand of plea, wherein to file the plea, and serve the opposite Attorney with a copy thereof, unless the demand be accom- panied by a direction to deliver a copy of the plea to some person resident in the same place in which the Defendant's Attorney resider; '". r'jiich case such copy of plea Ji^ * aelivorod within twenty-four hci . ...jording to the present praoijce, ai t\,e plea forthAyith transmitted Cj tlu-< rk for filing. PRACTICE IN EQUITY — SERVICE ON NON-RESIDENTS. Trinity Term, 19 Viotoria, 1866. 87 A — Upon any suit being commenced against any defendant, if it shall bo RULES OP COURT. «N» made to appear upon affidavit that such defendant doth not reside within the Province, but has a known place of resi- dence without the limits thereof, an order may be made for the appearance of such defendant at a certain day therein named, and a copy of such order shall within one year be served upon such defendant cither personally or by delivering the same at the residence of said defendant to some adult person belonging to his family; and if such defendant do not appear within the time limited by such order or such further time as the Court ma}' appoint, the plaintiff shall be entitled to the like decree, as in case of non-ap- pearance, when the defendant is served with process within the Province — pro- vided, that in case the defendant reside in any part of Europe or the West Indies, such service be made three calendar months before the day of appearance, and if such defendant reside in any part of the United States of America or in any of the British North American Colonies, such service shall be made two calendar months before the day of appearance ; and if in any other part of the world, such service shall be made six calendar months before the lay of appearance. 2nd. The proof of such service may be made by affidavit sworn before any Judge of any Superior Court in the Country where the same is made, or the Mayor or other Chief Magistrate of any City, Borough or Town corporate in any part of Her Majesty's Dominions — pro- vided always, that whore the same is sworn in any country, not part of Her Majesty's Dominions, it shall be authen- ticated by a certificate under the hand and seal of the British Ambassador, Envoy, Minister, Consul or Vice-Consul ; and if in any part of the British Dominions, by a certificate under the band and seal of a Public Notary 3rd. The provisions contained iu the four- teenth section of the second chapter of the Act relating to the administration of justice in Equity are hereby rescinded. 4th. The order for hearing the cause in the manner provided for by the fiilocnth section of the last named chapter of the said Act, instead of the time therein appointed, may bo made within one calendar month after the cause shall be at issue, on service of notice and of a copy of the affidavit on which the appli* cation is to be made, on the opposite party, ten days before such application, the time for hearing which shall have been previously appointed by the Judge to whom the same is to be made; pro- vided, that in cases which are abeady at issue, the order may be made within one calendar month from the Saturday next* af^er the second Tuesday in the present term. PRISONERS — PROCEEDINGS AGAINST. Hilary Term, 2 Victoria, 1839. 88— 1st. It is Ordered, That from and after the last day of this term, in all cases where a prisoner is or shall be taken, de- taiued or charged in custody by mesne process thereafter returnable, issuing out of this Court, and the plaintiff shall not cause a declaration against such prisoner to be delivered to such prisoner, or to the Sheriff in whose custody such prisoner is or shall be detained or charged, within three calendar months after the return of the process by virtue whereof such pri- soner is or shall be taken, detained, or charged in custody ; and cause an affida- vit to be made and filed with the Clerk of this Court, of the delivery of such declaration, and of the time when, and the person to whom the same was deliv- ered, before the last day of the term next after the delivery of such declaration, the prisoner shall be discharged out of cus- tody by writ of supersedeas to be granted by this Court, or one of the Judges thereof, upon filing common bail ; unless upon notice given to the plaintiff's attor- ney, good cause shall be shewn to the contrary ; and in case of a commitment or render in discharge of bail, after the return of process, and before a declara- tion delivered, unless the plaintiff shall cause a declaration to be delivered, and an affidavit thereof made and filed ; bo- fore the end of the t«rin next after such commitment or render uhall be made, and duo notice of such render given, the prisoner shall be discharged out of cus- tody by writ of supersedeas to be granted as aforesaid, upon filing common bail, unless upon notice given to the plaintiff's attorney good cause shall be shewn to the contrary. 2nd. That on every declaration so to bo delivered against a prisoner as aforesaid, ^pp^ 470 RULES OF (]OlJRT. a rule to appear and plead shall be in- dorsed according to the form following, that ia to say, "The defendant, CD, is to appear and plead hereto at the suit of the plaintiff, A. B., within twenty days after service of this declaration; other- wise judgment will be entered against him by default." t G. H., Plaintiff's Attoniei/. 184 . And that judgment shall not be entered against such defendant by default until the expiration of the said rule. 3rd. That the SheriiF who shall have re- ceived a copy of a declaration against any prisoner in his custody, shall indorse thereon the time of his so receiving the same, and shall forthwith deliver the samo to the said prisoner, and shall also enter in a book to be by him kept for that purpose, the time of receiving such declaration, and of delivering the same to the prisoner. 4th. That where the plaintifiP declares against the prisoner, it shall not be necessary to make more than two copies of the decla- ration, of which one shall be served, and the other filed with an affidavit of service, and a copy of the Rule to appear and plead indorsed thereon. 5th. That upon application made by the plaintiff, before tne time at which the defendant may be supersedable, and good and sufficient cause shewn by affidavit, further time to declare may bo given by rule of Court or order of a Judge. Uth. That upon every application for a supergedeas for want of declaring in due time, in addition to the certificate of the Sheriff that no declaration has been de- livered to him for the prisoner, there shall be an affidavit of the defendant, that he has not been served with such declaration. 7th. That unless the plaintiff shall proceed to trial or final judgment within three terms next after the delivery or filing of declaration, if by the course of this Court the plaintiff can so proceed j of which three terms, the term wherein such declaration shall be delivered shall be taken to be one ; or if by the course of the Court the plaintiff cannot so proceed to trial or final judgment within the time above limited ; then unless tho plaintiff shall proceed to trial or final judgment as soon afler aa by the course of this Court he may so proceed, the prisoner shall bo discharged out of custody by writ of supersedeat to be granted as aforesaid upon filing common bail, unless upon notice given to the plaintiff's attorney good cause shall be shewn to the con- trary. 8th. That in all cases after final judgment obtained against a prisoner, unless the Plaintiff shall cause such prisoner to be charged in execution, within three calen- dar months next after the day on which such final judgment shall be signed — in case no writ of error shall be depending, nor injunction be obtained for stay of proceedings; and if any writ of error shall be depending or injunction be obtained, then within three calendar months next after judgment shall be affirmed, the writ of error be non-prossed or discontinued, or the injunction dis- solved ; the prisoner shall be discharged out of custody by supersedeas to b^ granted as aforesaid, unless upon notice given to the Plaintiff's Attorney, good cause shall be shewn to the contrary. 9th. That after trial had, unless the Plain- tiff do proceed to have bis judgment entered up and signed as soon aa by the course and practice of this Court he may so do, or within one calendar month thereafter, in case no such injunction shall be obtained or order made for stay of proceedings; and if any such injunc- tion shall be obtained, or order made, then within one calendar month after such injunction shall be dissolved or order discharged, tho prisoner shall be discharged out of custody, in like manner as in the last preceding rule is provided. 10th. That in case of a render in discharge of bail after final judgment obtained, unless the Plaintiff shall cause the De- fendant to be charged in execution within three calendar months next after such render and due notice therof given ; and in case of render after trial and before judgment, unless the Plaintiff do proceed to have his judgment entered up and signed within the time limited by the last preceding rule, or within one calendar month t^r such render and due notice thereof, the prisoner shall bo entitled to his discharge in manner afore- said, unless good cause bo shewn to tho contrary. Uth. That no treaty or agreement shall bo RULES OP COURT. m sufficient cause to prevent any prisoner's having the benefit of a mpersedeas, un- less the same be in writing, signed by the prisoner or his attorney, or some person duly authorized by such prisoner. RECOGNIZANCE ROLL. Easter Term, 11 Victoria, 1848. 89 — No Recognizance Koll or a Recogni- zance of Bail to be received or filed until it is ascertained, upon search, that the Recognizance or Bail-piece is on file. RECORDS —WRITS — DOCKETS — JUDGMENT ROLLS. Easter Term, 26 Oeorge 3, 1786. 90 — It is Ordered, That all the Processes, Records, Rolls, and Judgments of this Court, be made on parchment, according to the usage of the Court of King's Bench iu England. 91— That the Bill issued out of the Court of King's Bench in England, commonly called the Bil. of Middlesex, be the first Erocess ad lieipondendum, where it is to e executed by the Sheriff of the County where the Court sits ; and that the first process, going into other Counties, shall be a common Capias, in form of the alias or Latitat, leaving out the words "as before we have commanded you," except where it is actually the Alias Capias; the recital of the issuing and returning a Bill being now supposed unnecessary. 92 — That every Attorney of this Court enter the return, and file the Writ or Process, in all actions which have not been agreed, and in which they intend to proceed ; and shall make a docket of all such returns and. rules, and on the last day of the term shall deliver the same to the Clerk of the Court; and shall pay to the Clerk his own fees, as well as thosr of the Judges and Crier, in such actions. Hilary Term, 46 Oeorge 8, 1806. 93— i« is Ordered, That the Clerk of this Court be in future authorized to deliver blank Writs, signed and sealed, to the several and respective Attorneys of this Court, to be by them filled up as occasion may require ; they accounting to the said Clerk tnerefor, and forthwith forwarding to him proper Praecipes for such of the said Writs as they may from time to time fill up and issue, in the same manner aa is practised by the Filacers in England. Hilary Term, 60 George 8, 1810. 94— /« is Ordered, That the Rolls of all Judgments entered at the several Terms, be brought in and filed on or before the first da^ of the Term next after the Term in which they shall be respectively* entered. That in all cases where blank Writs shall be filled up by the Attorneys, the Praecipes and Affidavits for Bail, in cases of Bailable proc. ss, b*) transmitted to the Clerk's Office lj' die very first opportunity, atlter issuing the Process; and that no Attorney do, on any account, suffer any blank Writ to go out of his hands to be filled up and issued by any other than an Attorney of this Court — and that no Rule to plead or other pro- ceeding in the cause be had, unless the Praecipe and the Affidavit, in cases where an Affidavit is made, be duly filed. That all Judgment Rolls be engrossed upon Parchment in a fair legible hand, with a margin of not less than un inch in breadth, and a sufficient space at the top for binding up the same, and at the bottom for numbering the Roll; and that no Roll be received or filed by the Clerk that is not made up in the manner herein directed. That no Processes be signed or filed by the Clerk which are not engrossed upon Parchment agreeably to the former Rule of this Court in that behalf made. That the Rule respecting the filing of Dockets and payment of Fees be strictly enforced, and that the Clerk report to the Court any delinquency in this respect without delay. Hilary Term, 60 (Jeorge 8, 1820. 95 — Whereas, by a standing Rule of this Court, made and entered of Easter Term, in the twenty-fifth year of His Majesty's reign. It is Ordered, " That every Attor- ney of this Court enter the return and file the Writs or Process in all actions which have not been agreed, and in which they intend to proceed, and shall make a Docket of all such Returns and Rules, and on the last day of the Term shall deliver the same, with the Writs and Processes iu such actions to the Clerk of the Court, and shall pay to the 4/12 RULES OP COUttT. Clerk of the Court his own fees, as well w those of the Judges and Crier in such actions;" and whereat, notwithstanding the repeated orders of this Court, enjoin- ing a strictand punctual compliance with the said Rule, the same has been in various instances violated and neglected : It is hereby Ordered, That in future, if any Attorney of this Court shall neglect a compliance with the said Rule, in every respect, agreeable to the true intent and meaning thereof, on or before the first day of the Term oeit after the Term in which such Rule ought to have been complied with, every such Attorney shall be considered as in contempt of the Court, on account of such neglect of, and disobedience to the said Rule. And the Clerk of this Court is hereby enjoined not to receive o^^ file from, or for, any such Attorney, at any time afterwards, any '\H'rit, Praecipe, Process, or any other paper or proceedings whatever, of a date subsequent to the Term in which such Rule ought to have been complied with, until such contempt shall have been purged by a compliance with the said Rule. And the Clerk is further enjoined, on the second day of the Term next after the Term in which the said Rule ought to have been complied with, to prepare, and deliver to the Court, the name or names of all such Attorneys as shall be so in contempt as aforesaid. Miohaelmas Term, 6 Qeorge 4, 1825. 96 — Upon reference to the Rule of Hilary Term, 45 Oeorge 3, relating to the deliv- ery of blank Writs to the Attorneys of this Court. It t's Ordered, That from and after Hilary Term next, no Attorney of this Court do presume to issue any Writ or Process whatever, unless the same be actually signed and sealed by the proper Officer of this Court ; and that the Clerk of the Pleas do forthwith furnish a copy of this Rule to every Attorney of this Court. Hilary Term, 7 William 4, 1837. 97 — It M Ordered, That from and after this present Hilary Term, every Attorney of this Court enter the return and file the Writ or Process in all actions which have not at or before such return been settled or discontinued, and uiukc and file with the Clerk a docket of all such returns and rules, on or before the last return day of the term at which such Writs are returnable, or within thirty days thereafter ; and that the Clerk do not in future receive or file any docket or enter any such rule after the said thirty days, without the special order of tho^ Court or a Judge, to be made on affidavit or affidavits, properly accounting for the delay. Trinity Term, 23 Victoria, 1860. 98— /(t is Ordered, That the following Regulations be observed in the Office of the Clerk of the Crown iu this Court :— Blank Writs issued by Clerk. 1st. Blank Writs of Habeas Corpus, and any others which require the fiat of a Judge to be endorsed thereon before they can be issued for the purpose of being executed, and Blank Writs of Subpoena, may be delivered to the re- spective Attorneys of this Court signed and sealed, to be by them filled up as occasion may require; they accounting to ije Clerk therefor, and forwarding to his office proper Praecipes for such of the said Writs as they may from time to time fill up and issue, stating in the Praecipes the name of the Judge whose fiat has been indorsed, where a fiut is necessary. 2nd. No other Blank Writs than those above specified, to be signed and sealed ; nor shall any mere blank pieces of parchment be signed and scaled by the Clerk of the Crown. REPLEVIN. Easter Term, 60 Oeorge 8, 1810. %%~lt is Ordered, That the Writ of Re- plevin , under the Act of Assembly 50 Geo. 3, c. 21, be in the form following, viz: — " George the Third, by the Grace of God, of the United Kingdom of (l. 8.) Great Britain and Ireland, King, Defender of the Faith, etc., etc., etc. To the Sheriff of Greetinq. " We command you if A. B. shall make you secure of prosecuting his comphiiut, and also of returning the Goods and Chattels, to wit : which C. D. hath taken and unjustly detained as it is alloj^ed, if a return thereof shall bo ad- judged, that then the Goods and Chattels aforesaid, to him, the said A. B. without RULES OF COURT. 4va delay you cause to bo replevied and de- livered; and put by suretiee and safe (ledges, the aforesaid C. D., that he be efore us at Fredericton on the Tuesday in next, to ansirer to the said A. B. of a Plea, wherefore he took the said Goods and Chattels of the said A. B., and them unjustly detained against ffigcB and pledges, as he saith, and have there then the names of the pledges and this Writ. Witness at Frederic ton, the day of in the year of our Reign." And if the Defendant shall not appear at the return of such Writ, or within twentv days after the return thereof, then the Plaintiff shall be at liberty to issue a Process agv^inst such Defendant, returnable at the nk.-?.t ensuing Term, in the following form, v\z : " George the Third, by the Grace of God, of the United Kingdom of (t. a.) Great Britain and Ireland, King, Defender of the Faith, eto., eto., etc. foregoing Prooesaes shall be directed to the Coroner, as in other eases in which the Sheriff is a party. MifthiiolmM Term, tt Victoria, 1858. To the Sheriff of Grxbtino. " We command you that you take C D., f he shall be found in your Bailiwick, and him safely keep, so that you may havo his body before us, at Fredericton, on the Tuesday in next, to answer A. B. of a Plea, wherefore he took the Goods and Ghattols of the said A. B., and them unjustly detained against gages and pledges, as he saith, and have you there then this Writ. Witness at Fredericton, the day of in the year of our Reign." And shall serve such Defendant personally with a copy of such Process, upon which copy shall be written an English notice to such Defendant, of the intent and meaning of such service; which notice shall be in the form used in the service of Processes in actions in which no affidavit shall be made, and filed of the cause of action ; and if such Defendant shall not appear at the return of such process, or within twenty days aflor such return, the Plain- tiff shall be at liberty, upon the usual Affidavit being made and filed of the per- sonal service of such Process, to enter a common appearance, or file common Bail for such Defendant, and to proceed there- on as if such Defendant had entered his or her appearance or filed comniou bail. And it ufurOtcr Ordered, That in all cases in which the Sheriff shall be a party, the 60 100^7/ u Ordered, That when upon the trial of any action of replevin, the defence arises under the 15th and 16th Section* of Chapter 126 of the Revised Statutes, and upon the plea of turn ccpit a verdict is found for the defendant, tne poitea be in the form following, with such variations as the case may require .* — "Afterwards, eto. [in the utual form] say upon their oaths, that the said' defendant , did take and detain the said goods and chattels mentioned in the said declaration, as a distress for rent upon certain prem- ises enjoyed b;^ the said plaintiff under a grant or demise at a certain rent, and that there was due to the defendant for such rent at the tine of making ih<) dis- tress, and still ifi due the sum of , and they assess the damages- of the said defendant by reason of the premises for the said rent, and the costs and charges of making t'ie said distress, at the sum of , pursuant to Chapter 126 of the Revised Statutes, besides his costs and cuargcei, ete," If the Bailiff of the landlord, or any one acting in aid of the landlord, be made a defendant, tho postea may bo varied, as follows : — " And that there was due to the defendant, CD., ete. [at be/ore'] and that the saitl defendant, £. F., was, at the time of making the said distress, the Bailiff of the said C. D.," or " that the said E. F. was then and there present, aiding and assisting tho said C D. in making the said distress, eto." And that the entry of judgment on the said postea be in the form following, with the requisite variations os before, according to the circumstances of the case : — "Therefore it is considered that the said plaintiff take nothing by his suit, but that the said defendant do go thereof without day, eto. ; and it is further con- sidered, that the said defendant (or that the said defendant C. D.) do recover against the said plaintiff tho said sum of , for his damages so assessed as aforesaid, and also for his costs and charges, by the Court of our said Lady the Queen now hero adjudged to the MRMRF ■■■Hi 474 RULES OF COURT. Mud defendant, according to the said ReTi'sed Statutes; which aaid damages, ooata and ohp- y» in the whole antonnt to , and what the said defendant have ezeention thereof." NoTi.— See form of Writ, 1 Rev. Stal., Title xzziT. cap. 126. REPLEVIN BONDS. NoT>.— See 1 Rer. Statates, cap. 126. Miohoeliiiaa Term, 4 Victoria, 1840. 101 — Whereat the Juatioee of the Supreme Court, or any three of them, are author- ised and required by the Act of Assembly 3 Victoria, o. 63, intituled "An Act further to regulate proceedings in Re- plevin by allowing damages in certain oasea to the Defendant," to frame and prescribe suitable and proper forms for the Replevin Bonds hereafter to be taken, and for the entering of any verdict or judgment pursuant to the said Act, such forms from the time of the said Act taking effect, to be observed and com- plied with in the same manner as if the same were in the Act specified and con- tained, and such forms to be applicable to the Inferior Court of Common Pleas as well as the Supreme Court. Provided that nothing in the said Act contained, shall extend or be construed to extend to affect any proceedings in any action of Replevin commenced before the said Act goes into operation : It is Ordered, That upon and after the first day of January 1841, being the time appointed for the said Act to commence and take effect, the following forms framed pursuant to the said Act shall be used, with such lUterationB as the description of the Court, the Officer to whom the Writ is directed, the number and character of the parties or the oiroumstanoes of the case may render necessary ; but that any variance not being matter of substance shall not affect the validity of the Bonds or entries. No. 1. — Replevin Bond. Know all Min by these Presents, That we (name and oMitiont of Plaintiff and hit turetiet') are jointly and severally held and firmly bound unto Esquire, Sheriff of the County of (or City and County at the cote may be) in the sum of (dovbk the value of tlie goodt to be replevied) of lawful money of New Brunswick, to be paid to the said , his certain Attorney, Executors, Administrators or Assigns; for which payment to be well and truly made, we bind ourselves and each of us, our and each and every of our Hein, Executors and Administrators, firmly by these Pre- sents, sealed with our Seals. Dated the day of in the year of the reign of our Sovereign Lady Victoria, by the Grace of Qod of the United King- dom of Great Britain and Ireland, Queen Defender of the Faith, etc., and in the vear of our Lord one thousand eight hundred and The Condition of this Obligation is such. That if the above bounden (Plaintiff) do appear before our said Lady the Queen, atFredericton, on (tJie return day of the Writ of Hejjtlevin) and do then and there Sroseoute his suit with effect and without elay ajj^inst (the Defendant) for taking and unjustly detaining hb goods and chattels, to wit: (here specify the goods to be replevied) and do make a return of the saia goods and chattels, if a return of the same shall be adjudged, and do pay all such damages as may be awarded to the said (Defendant) pursuant to the Act of Assembly, made and passed in the third year of Her Majesty's reign, intituled "An Act further to regulate Sroceedings in Replevin, by allowing amages in certain cases to the Defend- ant; then this Obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered in ) the presence of y If the WrU be issued out of any Inferior Court of Common Pleas, the condition of the Bond mil be at follows : — " The condition of this Obligation is such, that if the above bounden (the Plaint^) do appear before the Justices of the Infenor Court of Common Pleas for the said County of at on (at specified in the Writ, or before the Recorder of the said City of Saint John at the next Inferior Court of Common Pleas, to be holden for the said City and County at the said City on, etc.,) then (conclude at in the foregoing form.) No. 2. — Verdict on Pottea where Damaget are awarded to the Defendant. ( Commence in the usuai form). Say upon their oaths, that (ttating the negative or affirmative of the pleading which con- eludes to the Country, according at it RULES OF COURT. m nakeiftfr the Defendant) in manner and form aa the aaid hath " eum- pUined against him" or "in pleading alleged," and they aaaeaa the damages of the said Defendant by reason of the premises to jparsoant to the Act of Aasembly in snob case made and pro- vided, besides his costs and charges, etc., (at in tlu utueU/ortn.) .Vo. 3. — Entry of Judgment on the above. Therefore it is considered, that the said Plaintiff take nothing by his suit, but that the said Defenunt do go thereof without day, etc., and that he have a return of the said goods and chattels, to hold to him irreplevisable for ever. And it is further considered, that the said Defendant do recover agabst the said Plaintiff his said damages, costs and charges, by the Jurors aforesaid in form aforesaid assessed, and also for his said costs and charges by the Court of our said Lady the Queen, now here (or in the Inferior Court "by the Justices here") adjudged of increase to the Defendant, according to the form of the Statute in such case made and provided; which said damages, costs ai'd charges, in the whole amount to , and wat the said Defendant have execution thereof. No. 4. — Entry of Verdict on Pottea where iJie value of the goods it aiieited by the Jury. (Commetue €U in form Ifo. 2.") In manner and form as the said hath com- plained against him, (or in pleading alleged,) and at the prayer of the said Defendant they further say upon their oaths aforesaid, that the said goods and chattels at the time of the replevying thereof, were worth according to the true value thereof, which they award to the said Defendant in damages accord- ing to the form of the Act of Assembly in such case made and provided; and they assess the Defendant's other dama- ges by reason of the premises to pursuant to the said Aot, besides his costs and charges, ete., (!J copy of tho suid Process was accompanied with an English notice in writing to the Defendant, of the intent and meaning of the sorvioo of such Process, pursuant to the Statute in such cose made and provided ; and this deponent f\irthor saith, that at the tiuiu RULES OP COURT. 477 of making such service of the said Pro- oeas, the said Defendant was not, as this deponent yerily believes, without the limits of the said County. Baater Term, 18 Victoria, 1860. 110 — Ist. Whereas by the Act of Assembly 12th Victoria, cap. 39, sec. 44, the Act of Assembly 7th William 4, cap. 14, allowing service of Process to be made at the usual place of abode of the defend- ants, is repealed; and the said Act of 12th Victoria limits and restricts service of Process at the dwelling to cases where the defendant shall be within the juris- diction of the Court, at the time of such service; and the Rule No. 2 of this Court of Trinity Term, 3rd Victoria, is thereby virtually superseded : It ia Or- dered, That such Rule be rescinded, and that the affidavit of such service shall be in the following form, or to that effect, in order to entitle the plaintiff to an order for perfecting such service : — " A. B., Sheriff of , (or A. B., of , a Deputy of the Sheriff of ,) makcth oath aud saitb, that he, this deponent, did, on the day of , deliver a true copy of the annexed writ or process at the house of C. D., the derondant named in such writ or process, (or the house of any other person, a* the case may be,) situate in the Parish of , in the County of , unto E. P., the wife of such defendant, (or to G. H., an adult person residing in the said house, and known to this deponent as a member or inmate of the family of such defend- ant); and this denoueut further saith, that the said hou^e was at the time of such del'very the usual place of abode of such defendant, [and that the said copy of the said process was accompanied with an English notice in writing to the de- fendant, of the intent and meaning of the service of such process, pursuant to the Stntiito in such ciisu niado and pro- vided] ; * und this deponent further saith, that the suid defendant was at the time of such service within the limits of this Province, as this deponent knows, for the following reasons, (here state the particu- lar means of knnwledije the deponent has of the de/endant'a being within the Pro- vince ; if this fact is not known to the serving officer it may be proved by the affidavit of another person ; and the affi- davit of the serving officer may omit the words after the * and conclude as fol- lows : — ) and this deponent further saith, that he verily believes that at the time of such service the defendant was within this Province." (The clause between brackets maybe omit- ted in the service of Summary Writs.) 2nd. Jt is further Ordered, That in order to entitle the plaintiff U^ an order for making a service at the dwelling good service, the Writ or Process shall be delivered to the Sheriff of the County iu^.o which it is issued for service, and that such service bo effected, and the affi- davit thereof made by the Sheriff, or his general or special Deputy. 3rd. It is further Ordered, That these Rules shall apply mutatis mutandis to Writs directed to the Coroner. 4th. It is further Ordered, That these Rules apply to every Writ or Process issued after the end of the present Term. Trinity Term, 20 Victoria, 1857. Service of Process on Non-Residenls. Ill — It is Ordered, That where service of process is made on persons resident out of the Province, under the Act of As- sembly 14 Victoria, cap 2, the nature and place of the business carried on by the defendant in the Province, and the particular nature of the agency or em- ployment of the person with whom the copy of Process may have been left for the defendant, be stated in the affidavit of the Sheriff or Deputy Sheriff making such service, or otherwise proved by affidavit to the satisfaction of the Judge, before anv order is made for perfecting such service. Seo Practice in Equity, Rule 87 a. SHERIFFS— FEKS. Easter Term, 25 Oeorgo 3, 1786. 112 — That the Shoriffn indorse their returns on all Proisesaes delivered to them by the day of their returns respectively, and de- liver them to the Attorneys who issued the same. That they attend the Court every Term, by themselves or their undor- Shoriffs, and that they appoint Deputies, respectively, who shall always reside in the district in which the Court sits, and as near as convenient to the Court House; who shall always attend the Court in the 478 RULES OP COURT. abseuco of the High Sheriff: atd that all Writs, Rules, and Orders delivered to such Deputy, sh-iU be of like effect as if served upon the High Sheriff. Michaelmas Term, 6 William 4, 1834. 113 — III order to secure to Sheriffs the pro- per euioluuieuts of their office. It in Or- tfered, That., ailer the first day of Hilary 'i'erui next, no costs for the service or return of any Writ or Process, be taxed or allowed in any bill of costs, without the production of such Writ or Process, with the return thereof, signed by the Sheriff or his Deputy, and the fees for the service and return, marked thereupon by such Sheriff or Deputy. Hilary Term, 4 Victoria, 1841. 114 — Ordered, That from and after the last day of this term, when any Sheriff, before his going out of office, shall arrest any Defeudiint, and a Cepi Corpus shall be returned, he shall and may within the time allowed by Law, be called upon to bring in (he body by a rule for that pur- pose, notwithstanding he may be out of office, before any such rule shall be grouted. SIDE-BAR RULES— RETURN OF WRIT. Michaelmas Term, 8 Victoria, 1844. 115 — It is Ordered, That no side-bar rule shall bo taken out for the return of any writ after six months fVom the day on which such writ is made returnable ; and that aft«r such six months, motion be made in open Court, or the order of a Judge obtained, before any such rule do issue. SPECIAL BAIL. Baater Term, 20 Oeorge 8, 1786. II& — That there be allowed twenty days to all Detendantd to put in Special Bail; and the like number to all Plaintiffs to except against such Bail, from the time of duo notice of Bail put in. Hilary Term, 26 Oeorge 3, 1786. 117 — Ordered, That in all Process whore an Affidavit is made and filed of the cause of Action, the Sheriffs of the dif- ferent Counties, at the time of taking the Bail I^ond, shall servfl the sureties therein with a copy of such process, subscribed with the following notice : '• A. B. "Take notice, that unless Special Bail is put in above by the Defendant in thb cause within twenty days after the return of this Process, the condition of the Bail Bond you have entered into will be for- feited;" and upon affidavit made and filed, together with a return of the Pro- cess by the Sheriff, of the service of such copies as aforesaid, the Declaration may be filed De Bene E$ae, at the return of the Process, with notice to plead in twenty days ; and if Defendant puts in Special Bail, and doth not plead within time. Judgment may be signed : provided such Declaration be filed in the Clerk's Office with notice thereon within twmty days afler the return of the Process. Michaelmas Term, 69 Oeorge 3, 1810. 118 — Ordered, That the time for putting in Special Bail, agreeably to the rule ma^e in Easter Term, in the twenty-fifth year of His present Majesty's Reign, be en- larged to thirty days. Michaelmas Term, 6 Oeorge 4, 1826. 110 — Ordered, That if any person or per- sons, who are, or who hereafter shall become Bail in this Court for any De- fendant, in any action whatever, shall be impleaded by action of debt upon the recognizance in such suit acknowledged, such person or persons shall have liberty to surrender such Defendant by the space of twenty entire days next after the re- turn of the Writ of Capias ad responden- dum or other Process sued out against such Bail ; and upon notice thereof given to the Plaintiff or his Attorney, in the suit aforesaid, all further proceedings against such Bail upon the Recognizance aforesaid, shall coaso. Hilary Term, 2 William 4, 1882. 120 — It t" Ordered, That in all coses, where Bail is put in before a Commissioner, the Bail-piece, together with the affidavit of the duo taking thereof, shall bo forthwith transmitted, by the Attorney who puts in the Bail, to one of the Jud^ of this Court; and the notice of Bail, in such cases, shall specify the Judge to whom the Bail-piece has been so transmitted, as well lui the Commissioner, before whom RULES OP COURT. 479 (he Bail was put in, and the names and additions of the Bail. 2Dd. That Plaintiffs shall be allowed twenty days, after service of the notice of Bail, to except against such Bail: and such exception shall be entered with the Judge before whom Bail was put in, or to whom the Bnil-piece has been transmitted, as the case may be. 3rd. That Defendants shall be allowed twenty days, after service of notice of exception, to procure their Bail to justify, or to add other Bail, who shall justify within the said twenty days, unless in either case, upon application made before the said twenty days expire, the Court, or a Judge, shall see fit to extend the time. 4th. That Bail shall justify in open Court, or before the Judge with whom the ex- ception is enfcred, notice of justifying being fifst duly given : and that in all cases, when the Bail reside more than ten miles from the place where they are to justify, they may justify by affidavit without personal attendance. 5th. That Bail must bo Housekeepers or Freeholders; and, in cases where the gum sworn to does not exceed three hun- dred pounds, must be worth double the sum sworn to ; and in cases abovo three hundred pounds, must be worth three hundred pounds more than the sum sworn to, over and above their just debts, and every other sum for which they arc Bail. th. That the nffida\'it of justification shall be according to the following form ; and may bo made before a Judge or a Com- missioner of this Court for taking affi- davits. Form of Affidavit. \ Id the Supreme Court, Between, etc. I A. B. and C. D., Bail for the Defendant in this cause, severally make oath and say, and first this Deponent, A. B., for him- self saith, that he is a Housekeeper, (or Freeholder, at the case may be) residing at (describing particularly the place of nsiilence,) that ho is possessed of pro- perty to the amount ot £ {double the amount of the sum sworn to, if under £300, and if above £300, the amount of the sum sworn to, and £300 added thereto) over and above all his just debts, (if Bail in any other action add) and every other sum for which he is now Bail — (if not Bail in any other actum, add) that he is not Bail for any Defend- ant except in this action; that this Deponent's property to the amount of the said sum of £ , (and if Bail in any other action, " and of all other sums for which he is now Bail as aforesaid ") consists of real property of the value of £ , and of personal property of the value of £ , (as the case may be) and this Deponent, C. D., for himself saith (as before.) Sworn, etc. 7th. That if the Notice of Bail shall be accompanied by such an affidavit of jus- tification, and the Plaintiff afterwards except to such Bail, he shall, if such Bail aro allowed, pay che costs of justifi- cation ; and, if such Bail arc rejected, the Defendant shall pay tho costs of opposition, unless the Court, or a Judge, shall otherwise order. 8th. That, in cases of exception, when Bail have duly justified and been allowed, and a Rule for au allowance has been entered in Court, or an order therefor made by a Judge, and a copy of such rule or order has been served on the Plaintiff's Attor- ney, the Bail shall bo deemed perfected ; and the Attorney who puts in the Bail shall forthwith obtain the Bail-piece from the Judge, with whom it lies, and file the same with the Clerk. 9th. That if the Plaintiff does not except against the Bail, within twenty days after service of notice of Bail, the Bail shall, in like manner, be deemed per- fected; and the Attorney who puts in the Bail, shall forthwith, after the expi- ration of the said twenty days, obtain tne Bail-piece from the Judge, and file the same with the Clerk. 10th. That, in oases of render in discharge of Bail, the Clerk, upon production of a certificate of the Sheriff, to whoso custody the Defendant has been committed, that such Defendant is in his custody, together with an affidavit of the service of notice of render upon the Plaintiff's Attorney, shall indorse upon the Bail-piece an Ex- ONSRETKUR, in the words following: "The Bail within named aro exonera- ted;" and shall set down the day of the month and year of his so doing, and sign his name thereto; and such certificate 480 RULES OP COURT. and affidavit shall thereupon be filed with the Bail-piece. 11th. That hereafter proceedings against Bail, in an action upon the recognizance, shall not cease, as provided for in the rule of this Court of Michaelmas Term, one thousand eight hundred and twenty- five, without the costs incurred in such action up to the time of notice of render being first paid. 12th. That any former Rules of this Court, inconsistent with any of these present Rules, relating to Bail, shall be hereafter of no efiect. 13th. That any Attorney, who shall neglect to transmit, or to file the Bail-piece, as the case may be, according to the fore- going Rules, shall be deemed to be in contempt of the Court for disobedience to its rules. Michaelmas Term, 6 William 4, 1834. 121 — Ordered, That it shall be deemed irregular to put in Bail before a Com- missioner, in any parish or city in the Province, in which one or mora of the Judges of this Court may reside, unless at times when such Judge or Judges may be absent from their place of rcsi dence ; and further, that always, during the sitting of the Court in Term time, it shall be irregular to put in Bail before a Commissioner, in the Parish of Frederic ton, in the County of York ; and that no Judge do receive any Bail-piece, trans- mitted to him, in which the Bail may have been entered contrary to this Rule. SPECIAL CASES. See Demurrers and Special Cases, No. 41. SPECIAL CONSENT RULE. See No. 103. SPECIAL AND CROWN PAPER. Hilary Term, 7 Qeorge 4, 1826. 122— Ordered, That the Clork of the Crown do keep a paper to bo called the Crown paper, in which shall be entered demurrers, and other special matters for argument on the Crown side; and that the Clerk of the Pleas do in like manner keep a paper, to bo called the Special paper, in which shall bo entered all de- murrers, and other special mutters, for arguuiont on the Plea side : such entries to stand on such papers respectively, in the order in which they may be made, with the said respective Clerks ; and that all the matters contained in the said papers shall come on to be argued on the Monday in the second week in each term in the order in which they are entered, always beginning with the Crown paper. Michaelmas Term, 6 William 4, 1836. 123' — It is Ordered, That the matters con- tained in the Crown Paper and Special Paper, respectively, shall come on to be argued on the second day in each term, any former rule to the contrary notwith- standing. See Nos. 66, 67, 68. STUDENTS AND ATTORNEYS— EX- AMINATION OF— BY WHOM. Michaelmas Term, 11 Victoria, 1847. 124 — It is Ordered, That the Examination of persons desirous of becoming Students, or being admitted as Attorneys of this Court, shall be conducted by the T'onchers of the Barristers' Society, as provided for by the said Rules and Regulations ; and that no person be entered as a Student, [ or sworn and enrolled as an Attorney of this Court, or admitted as a Barrister, [ unless he produce a certificate to bo granted pursuant to the said Rules : Pro- 1 vidcd that this order do not extend to I Barristers from other parts of Her Ma- jesty's Dominions, applying to be admit- ted Barristers here; and provided nlso,| that nothing herein contained shall cx- . tend or be construed to impair or inter-j fere with the general superintending power and authority of this Court over all or any of the matters aforesaid. It is further Ordered, That such of tha Rules and Orders of this Court as arq inconsistent with the said Rules and Regulations of the Ba'risters' Society! or 80 far as they regulate matters thcrciif provided for, (excepting m aforesaid,) hi suspended until the further order of thi Court in the premises. See Attorneys, Barristers, etc, SUBP(ENA. Michaelmas Term, 6 William 4, IBS 125 — It is Ordered, That the names of at numb u* of Witnesses may bo put in ud W..tof Subpoona. RULES OF COURT. 481 Trinity Term, 12 Victoria, 1848. Subpoena to prove Execution of Deeds in order to be Registered. 126 — Whereas by the Act of Assembly 10th Victoria, cap. 42, it is enacted, "that process of Subpoena may be issued out of the Supreme Court of Judicature as in ordinary cases, (and in such form as the said Court may by general rule or order prescribe,) to compel the attendance of any witness, or the production of any conveyance or instrument for the due proof thereof, in order to be registered agreeably to the provisions of this Act ; and such Court shall have the like power to punish disobedience to any such Sub- poena, in the same manner and to the same extent as in other cases; provided that no such witness shall be compelled to produce, under such Subpoena, any writing or other document that he would^ not be compelled to produce on a trial :" It is Ordered, That the several processes of Subpoena to be used under and in pur- suance of the above rec't-id Act, shall be in the form or to the enect following : — No. 1. — Subpoena ad Testificandum. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To A. B., \names of the tcitness or wit- nesses'] Greeting : — We command you that, laying aside all and singular business and excuses, you and every of you be and appear in your pro- per persons before [name and description of the Court, Judge, or other Officer be- fore whom proof is to be made,"] at \_the place or office tohere proof is to be marfe,] on the day of , at of the clock in the noon of the same day, to testify all and singular those things which you or <.'her of you know concerning, the execution of a certain [describe the conveyance or instrument to he proved,] purporting to be made be- tween [the parties to the deed or instru- ment,'] and bearing date the day of , A. D. 18 , to which [deed or instrument] you and each of you were severally a subscribing witness or wit- nesses; and further to prove the execu tion of the said *, in order that the same may be duly registered according to the provisions of the Act of Assembly in such case made and provided; and m this you or any of you shall in no wise omit, under the penalty upon each of you of one hundred pounds. — A^'itness Esquire, at Frederioton, the day of , in the year of our Reign. No. 2. — Subpama duces tecum. [The same as the above to the asterisk *, then thus] — and also that you bring with you, and produce at the time and place aforesaid, the said [describe the deed or instrument] hereinbefore mentioned and described, in order that the same may be duly registered, etc. [conclude a« in the preceding form.] SUMMARY ACTION. Trinity Term, 6 William 4, 1834. 127— Ist. It is Ordered, That the Writ in Summary Actions shall be on Parchment, according to the usage in this Court in other actions. 2nd. That in every action which has not been agreed, and in which it is intended to proceed, the Plaintiff's Attorney shall file the Writ, and enter the cause at the term in which the Writ is returnable, and shall make a Docket of such causes, and deliver the same to the Clerk, and pay the fees in like manner as in other actions. 3rd. That in actions to be tried at Nisi Prius, the Writ and Plea shall be delivered from the files of this Court to the Plaintiff's Attorney, and shall form the record, and be filed as suoh, at the Court of Nisi Prius. 4th. That the result of trials at Nisi Prius shall be entered in a brief and summary form, according to the circumstances of each case, and endorsed on the Writ, or annexed thereto, in the nature of a Postea, and returned by the Clerk of the Circuits accordingly. 5th. That the Clerk of this Court shall not, in anv case, sign final Judgment, unless the Writ bo on file in his ofiloe ; and in every Memorandum of Judgment, there shall be reference made to such Writ so on file. Miohaelmas Term, 2 Victoria, 1838. 128 — Ordered, That in future, in Summary Actions tried at Nisi Prius, a copy of the J lea, instead of the original plea, may be led in the Court of Nisi Prius as a part of the record. 488 RULES OF COURT. SURVIVING PARTIES. Trinity Term, 22 Victoria, 1869. 129 — In summary causes, when one of the several plaintiffs or defendants shall hap- pen to die afler the commencement of the action, the subsequent proceedings shall be in the name of or against the surviving plaintiff or plaintiffs, or defend- ant or detendants, as the case may be ; describing him or them respectively, as survivor or survivors of A. B., who hath died since the commencement of this suit, and who was a joint plaintiff or defendant therein. TAXATION OF COSTS. See Bill and Taxation. TRIAL. See New Trial. TRIALS AT NISI PRIUS. Hilary Term, 7 G^eorge 4, 1826. 130 — In order to prevent inconvenience and delay in the trial of causes at Nisi Prius. 1st. It is Ordered, That no record of Nisi Prius shall be received at any Circuit Court in any County in this Province, unless the same shall be delivered, to be entered with the Clerk of the Circuits, at or before the opening of the Court, on the first day of the sittings, unless the Judge, in his discretion, under special circumstances, shall allow the Clerk to receive a Record, and enter the cause for trial afler the time above limited; and that every cause shall be tried in the order in which it shall be so entered, beginning with Remanets, unless it shall bo made out to the satisfaction of the Judge, in open Court, that there a reasonable cause to the contrary, who thereupon may make such order for the trial of the cause so to be put off, as to him shall seem just. 2nd. Ordered, That a list of all the causes, entered as aforesaid, shall be made by the Clerk of the Circuits, and by him deliv- ered to the Judge as soon as practicable after the entry so made. Michaelmas Term, 36 Victoria, 1872. 131— /I! M Ordered, That the Clerks of the Circuits shall not hereafter enter any cause on the Docket at Nisi Prius, unless the Nisi Prius Record is regularly and properly made up, and duly filed with the Clerk at the time of the entry, and that after being so filed, no such Record shall te altered or taken off the files dur- ing the Circuit without leave of the Court. See Rule 79. TRIAL BY RECORD. Trinity Term, 8 Victoria, 1840. 132 — It IS Ordered, That in any case of trial by the Record, it shall be sufficient for the party to make up and deliver to the Chief Justice one paper book, instead of delivering books to all the Judges, unless the Court should otherwise order in any particular case. Trinity Term, 9 Victoria, 1846. 133 — Ordered, That in future all cases of trial by the record be entered upon a separate paper,, to be called the " Record Trial Docket," which shall be taken up immediately after the motion paper is concluded; the entries to be made in open Court on the first day of each term, and to stand in the Docket in the order in which they may be made, unless the Court should otherwise direct ; and that eight days' notice be given of all such trials by the record. Hilary Term, 13 Victoria, 1860. 134 — It is Ordered, That if the party who may have given the Notice of Trial by the Record, pursuant to the Rule of Trinity Term, 9th Victoria, shall not enter the same for Trial on the first day of Term, as required by such Rule, the other party may move to enter the same for Trial on the second day of Term, and proceed to trial at such time as the Court may thereupon appoint, on delivering to the Chief Justice a Paper "Book, in case such Book should not already have been delivered. It is further Ordered, That either party may give Notice of Trial by the Record, and enter the saute pursuant to the Rule of Trinity Term, 9th Victoria — but that if Notice.be given by both parties, the Notice of the party seeking to perfect the Record shall have prooedenoe, pro- vided he duly enter the case, and deliver the Paper Book to the Chief Justice. RULES OF COURT. 483 Prius, unless egularly and ly filed with e entry, and such Record the files dur- eave of the ID. s, 1840. any case of be sufficient d deliver to book, instead the Judges, erwise order ia, 1846. all cases of ired upon a the " Record be taken up on paper is be made in )f each term, \n the order unless the b; and that of all such i, 1850. B party who of Trial by le Rule of shall not he first day Rule, the ir the same Term, and s the Court ilivenng to lok, in case have been ther party he Record, ;o the Rule but that >artie8, the to perfect lence, pro- lud deliver ustioo. WARRANTS OF ATTORNEY. See Awards and Warrants. WARRANT OF ATTORNEY TO CONFESS JUDGMENT. See No. 29, WITNESSES — EXAMINATION OF. See No. 52. WRITS. See Record?, etc. WRITS OF ASSISTANCE. Hilary Term, 69 George 3, 1810. 135— /« in Ordered, That the Writs of assistance to the Officers of His Majesty's Customs in this Province, do issue out of this Court, from time to time, according to the practice of the ISxchequer in England. WRITS OF ATTACHMENT. Trinity Term, 23 Victoria, 1860. 136 — Where Writs of Attachment or other Writs are issued out of the Crown Office upon a Rule of Court therefor, or by order of a Judge, the Clerk shall at the time of signing and sealing the Writ, put at the foot thereof, or indorse thf.reon, a memorandum in the form following, or to that eifect, as the case may be : — " By Rule of Court of Term, A. D. 18—," or "By Order of the Chief Justice or Mr. Justice , dated filed in the Crown Office. See No. 13. WRITS OF ERROR. Trinity Term, 8 Oeorge 4, 1827. 137 — It is .Ordered, That henceforth no Writ of Error Coram Nobis shall be allowed but in open Court ; and then on affidavit of the Error to be assigned. WRITS OF SCIRE FACIAS. Hilary Term, 9 Oeorge 4, 1828. 138 — It in Ordered, That from henceforth all Defendants in Scire Facias have twenty days to appear from the return day of the Scire Facias ; and that, where a Defendant appears in Scire Facias, there shall bo the like time for pleading as in other actions in this Court. Hilary Term, 2 Victoria, 1839. IZ9— Ordered, That the Writ of Scire Facias to be issued under the Act of Assembly, 26 Geo. 3, o. 24, shall be in the form following, or to that effect; adding in the body of the same any special matter which in particular cases may be deemed requisite. Victoria, etc. To the Sheriff of Greeting: Whereas A. B., lately in our Court before us at Fredericton, impleaded C. D. and E..F. in a plea of , (the said C. D. having been duly taken and brought into Court by virtue of process issued in the said suit against the said C. D. and E. F., and the said E. F. not hailing beeu taken and brought into Court by virtue of such process) and did afterwards by the judgment of the same Court recover as well against the said E. F. as the said C. D., [state the recovery^ in the same manner as if they had both been taken and brought into Court, pursuant to the Act of Assembly in such case made and provided, whereof the said C. D. and E. F. are convicted as by the record and proceedings thereof still remaining in our same Court mani- festly appear. And now on behalf of the said A. B. in our sameCourt, we are informed that although judgment be thereupon given, yet satis- faction of the [debt and] damages afore- said still remains to be made to him ) and he is desirous of executing an Execution for such [debt and] damages against the body, or the lands or goods, the sole pro- perty of the said E. F., whereof the said A. B. hath humbly besought us to provide him a proper remedy in this behalf: And we being willing that what is just in this behalf should be done, command you that by honest and lawful men of your Bailiwick, you make known to the said E. F., that he be before us at Fred- ericton, on to shew if he has or knows of any thing to say for himself, why the said A. B. ought not to have execution for the [debt and] damages aforesaid, to be executed against the body or the lands or goods, the sole property of him, the said E. F., according to the force, form and effect of the said recovery, and pursuant to the said Act of Assem- bly in such case made and provided, if it shall seem expedient for him so to do; and further to do and receive what our said Court before us shall then and there a^ 1 2t 484 RULES OF COURT. consider of him ia this behalf; and have you there the names of those by whom you shall so make known to him, and this Writ. Witness, etc. Easter Term, 84 Viotoria, 1870. Return of Moneys Paid. lAO— Ordered, That the Clerk in Equity do, on the first day of each Term, furnish for the information of the Judges and any parties interested, a detailed return of all moneys in the Bank of New Bruns- wick, or elsewhere, paid in in this Court, or in the Court in Equity, or by direction of either, with the name of the cause, the amount paid in each cause, whether paid in in every case to the credit of the spe- cific cause, or how otherwise ; the date of payment and the amount of increase or interest (if any) in each case, and the amount (if any) drawn out in each cause, with the date or respective dates thereof, and by what authority drawn : a copy of which return shall be entered at length in the Minutes of the Term. Miohaelmas Term, 86 Victoria, 1871> Moneys — Deposit PUice. 141— 1st. It is Ordered, That hereafter all moneys paid into the Supreme Court, or the Supreme Court in Equity, shall unless otherwise specially ordered, be paid into the Bank of New Brunswick to the credit of the Supreme Court, or the Supreme Court in Equity, and to the credit of the particular cause or matter in which the same shall be paid in ; and a deposit receipt thereof shall be forthwith delivered to the Clerk of the Pleas or Clerk in Equity, as the case may be ; and no money shall be consid- ered as properly paid in till such deposit receipt is so filed. 2nd. No moneys paid into Court shall be drawn out except by order of the Court, or of a Judge thereof, to be signed by the Clerk and countersigned by the pre- siding Judge of the Court, or the Judge who make the same ; and no such order shall be made unless it be first certified to the Court or Judge, by the Clerk, that such money has been duly deposited and the deposit receipt filed and entered. 3rd. The Clerk of the Pleas and Clerk in Equity shall keep Books, in which such receipts shall be entered immediately on the same being filed with him ; and such Books shall be open to public inspection at all reasonable times. le Court, or Ittity, shall, )rdered, be Brunswick e Court, or ity, and to r cause or all be paid lereof shall le Clerk of as the case be consid- uoh deposit irt shall be the Court, signed by by the pre- ' the Judge Buch order St certified the Clerk, y deposited ad entered, d Clerk in irhioh such ediately on ; and such inspection