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The Honorahle Wh.liam Yodno Appointed 3rd August, 1800. ' JUDGE IN KQUITY AND SKXIOR ASSISTANT JUSTICE. Ihe Honorable James W. Johnston Appointed lUh May, I8O4. ' OTHER ASSISTANT JUSTICES. The Honorable William Blowers BlIss Appointed 9th April, 1834. ' The Honorable Edmund Murray Dqdd Appointed 19th February, 1848. ' The Honorable Wiiltam Frederick DesBarres, Appointed l4th November, 1848. The Honorable Lewis Morris Wilkins Appointed 14th August, 1850. ' JUDGE OF THE VICE ADMIRALTY COURT. The Honorable William Young, Succeeded Ist January, 1805. CROWiV OFFICERS. ATTORNEY GENERAL. The Honorable William A. Henry Appointed 11th May, 1804. ' SOLICITOR GENERAL. The Ffonorablo John W. Ritchie Appointed 11th May, 1804. ' A sudi for a tiiiK effects of perhaps s tlie piibli busily en and fifty covered t( ' unfitted r [mentnl efl I press is on consequen Jtion. All [regrets mo Other ca Jt'olurae,— tl jvioiis to m.> jreporter.— .] has grown s |1869 had ne Jgreat as whi jtalcen to rep rnlly as poss jto produce c 1''io aim pi hiiperior Co; jCommon Law ■Admiralty— I |a»d I have 8( health in the oy illness ha ii'nd of const Bevere oven fi PREFACE. K.rl,„p,„,„.„ never I„;"er:)":: '" ^^-'^ " (""'1' '-"I » P^-^f'-e to my firrt, -•"..^ to my ..ppoinY:f„ "„ ,;X;t "'" '™ ^^"^ P™' reporter,-,he enormons ino rase of ' 7"' "° °'»<"''*'' has grown steadilv over sineo mf "" '"""'' *'"'«''■ 1869 had nearlv d'oublld Td i^^ ''PP°'"tment, whioh oven ia Ut as when i became 'Cpoer"",::™ """ """> """^ -^ haten to report the arL'nm,Z! o^'~ -^"'"""^ P"'"" I ''^vo f«"y as possible a, d w i. h „1 ':'"°""^' '"" ''"•'•""' »* to produce delay. """ ="=="racy,_have helped. -pX'^t.th;:tpr!L7c"''r-7'"^''-"« <- »^' 0- |Co,nm„„ Law Chamber, vor. "' '" ''""'"' ^"'"y Conrt,, |Admiralty_has for voar'a beeo ' "'■ ""^ "" ^"°" °' ^''^ l«"1 I teve seriously a„ prbl v" '" '^ "■"'* '"' ™» "■»"» h'tl. in the attempt to perl li '7'™""?""^ "«"'«'' "y h ill»ess has been caused bv ' f "''^■'''^'■''"""'>' ""'«^ V-d of constant report 2' r?."™'V'" ""•"'" ^ "■<" --re ovon for a natura.i;s7r™; o^Zt t""'' """" '"o . I /• vl. PRKPACB. TI,o mo™,o„ni,o w„,I<„r„„r .uporior C,„k(« ,„.y he gatl,„ro,i ,■„,„ tl,o (net tl,.„ ,l,o n.,v<.r,„n„„l of ,|,„ n..mi i ,„ on„.,I„r.„l „ „„ce,„.r.v in ,870 ,o „,,,, , ,„.„ ,.,|,,i, i " J ..iKe., ..n.l ,l,at ,„ ,|,e Tonn My cl,„„,I tl,„™ w.™ 9 «" > MIy, H,„l l,HV„ uk.M, ,„o ,„„cl, p.i„s ,„ c.ns,„.„ .l,„ „„„ " '" ''•■•'"':■r^ I «■'" only »a.v ,l,„e I l,uv„ f„lt ,le p ' 2::::' r,'~^-"f !--■"■.>' i-n- pr„.,„eZ: m.Mo »on,p„l„„, „„c,nw:y ,l,„„ ,l,.,,o l,is,„™, „f jn.iiciH b.en ,„,« ,.pp,-„pruto,l." I, i, c,„„p.n.,iv„ly s,.|, ,,^1 T"" "■'"'"'» "■ ''"' ""'"•■■'^ -■" P i=.l...,a„d ",• «.e.„fo,.„ „„e „,to„ an opportunity of correct n,„.°' A l»an,c.,l wr,tor ha, ,aM tl,at on the R.MUy „n,i aconraov f ent.relj ,le,,e „!,. I havo often apent honr. over the preparat,,,,, ol a .-n^le hea,l note, carllall. weidnVg ev !• wor,! n, order that the no,e, a. i, n„e„...,r,; n,i«h 'IT, S «8 po,„hle ,.n,I yet e.hansti.e and perfeetiv aoenrate. 1 , .y rem,,.,, no,, p,.of„,,i.,„„, reade,-, that these note, are xpe . ed to „„,.,„ the law on the point, to which tl,ey reler ,,,,,' as lnn,|,ng„s a Stnlnte. '^ ' '''" If the rcpo,.ting f.,r onr snperior Conrt, f, ,o be continned ■V;;;:,:: r" 'r'v'^r-^"^'. '"" "■" '"'"" -.v--- S ,0 change,!. A. ,drea,ly intnnate.l, no one man can do the work, and ,.„ ,ul,li,io„al ,eporte,., „r r,.por,e,., „,? Z 1 pcnted, or the «-„rk of ,|,„ r,.por,er consider hie, I I-leed, du,.„,g the last two years, I have been c, ,„ W , ' enph,y one and „„„„ „,„ „„.,,„„, ,^,,__,^^ , ' " n.y own .neuns. In otl,er conntries eael, Co,,,-, h s i w„ pietrd"'iii"d' i," ?"' "";"""• "'""■ "'■' ™''""" "•'■" f-" <="»• pioieu will dopend verv lapo-olv,- uoont!— r-,M • i • i be maili LeirlHlill I Hhill tlitj Logi ol ."'Hggc briiigiiig tlie Work tioii to t\ This w 1805, all ciato Jiif jdi.xpo.sitii) deci.sioris, few of fli |1866, and Ijonid coi 'f tho ora "•0 of corij rupare ffit «f«rmined eferred to itii these •art of this Among tl Mcintosh V. iiino, as far !rrt('tor coulc vowedly de lad aubsfant ntly or will In this w( hiosei/, Dou taso. This ^ ■ortliy of pel '^" view. I tl, corded, fron cts still rota '8 instance. In t'lo folio, ■-•' 'rvflOTriC Ci < '\ • mrts niiiy l)e tlio Domicion oro wcro 119 to Hit ill two Tlio docket mt uuiitaiued tlio docf^ions ro tlio rno.st > folt deeply prydoco.^sors licli dHin!iiids i ' of jiidicirtl Reports Ii!i3 selflofn tliJit Mid Hioro is, lu; III) error. fic(;iirrtcv of t of the Ifuv I over the :liii!g every be Hs brief ifB. I irifiy •e expeoted or, iiiid law cnntfmied, em should :;an do the list bo up. lessened. inf>elled to )Hid out of j IS its own hivii mine, 8 to each I be com- diicU tuny PnEPACE. I t . VII. vo maiio therefor ^1iii>;..r. »i La«,«..,„r„ '"^ "'" "'■'""•" »°»"'™ --'f tl.o Provincial •lie work, „,„i I ,|,„n tl ' , j„ " '"""'"O- confi„„„„cu of tiou .0 tl,.,ir J„ci.io„. """-""^' ''"'^« '"" 'v'."lo ,,„.». Thi,s Work oontnins nil *i.« i • • I-"- of ,l,e oral olo/^.d 1 ',"? ^ "-"■""• ''"""■"'"-U « '860. andJanuurv, 1867 A. r°'' '"'"•"' "'' """O'nl.or, il'""!'! ooului,, «»'ma„y,i,,^,,„ *'" ""'"■""' """ H"- Part -pare, he™ for .,,„ ^^ '' ' """'■^ -Ouiro ™„ro ,,,„„ ,„ te>«rn,i„e.l ,o P-bli,//, he work w.IoI'h'™ ■*";'."""• ' '""« "ferred to. The p„K„, from r«TM° "'■"'''"•"■"'"'» j"^t '"" tt.a,e decision' t„d w,7/o V", ""* "'" ''" "-"Pi'-'d 'ort of thi» volume ' ' "PI"""' "> '!'« second ".•tor could recover on a >v!L!f .' """''"' ""« «' o""- 'vowodly departed ,„ "o,„e x e Z" "'' "'"'""S'' '>e had »n;ly or wilfull/d'e viatedto™ hJt ■ "'1 ','"" ""' f™""- In this ,vork will aN„ l°7 a J"" "' "'" "<""'•""• , W,, Z,^,^,,,, „ ;'™J; ^d t e ca.e of T/. Queen v. h»- Thi. ,va, so veryreVarrh'; •' ■"""'•" "" "'« •^«-» ^o«l0' of permanent p o, ^ ", 'f " " ■=."»° •'■« I judged it ,< "ow. I thought it tu 1. ", '" ""> '"■"lorical point horded, from Z tll,:^^^'" " """'"^ P''^'-"'uL,y '"■* instance. '^ '" ' *'"™ » """o, as was done in rI"4';.-'?"?"J"S P»««» there is «|s„ .1,, ,,„...., — -^no, fic es ae. Y. WUkinit ^t ^.i xl , • '"«'«vab}e case of ^^ikrna et al, the decision in which, as to VilH. PREFACE. ilm qwesMon of survivorsln'p under the very aingalar clrdtttn stances of the case, was based upon the judgment in Under tt^oorf V. m«gr, decided in February, 1860, in the HonBo of Lord*. '1 'itil ut'u.ni 'j'\ iHalifajs, April, 1873. ii* I ,, ■ : -■V,,;| ) ' - :: : ; ! :' 1;/.,! -.ii -. , ■ ' ■ i ; I ' ' ; .' , . , . , ■ -Ili'iJill! \:.A I . (! I ■ 1 f , > ' " .1-1 1 : . .'/ \l • ■ . ) , , 1; ■ ■' ' ' ' ■ ^ villi-. ;j ,.;!■■, -. ilM!.|!|, r.■ ) : (Writ, clii 16«6. ch , Angus V. (Dower— S Ann is et al (Arbitratioj iustin V. ] 1 (Written as Gootl-wiif 1 Cattleman e 1 (Ejectment 1 tlistinguisi ft elloni V. M 1 (Magistrate's ^B lack V. Sav\ I (Preferential i Be "nd et al. v I (Plea, construe m° u^ilier et a 1 (Ejectment— Pi Costs.) Bar rigan v. Ca 1 (Will, proof of b ins V. Reid .:.. i"" (Assignee under w«sion.) galar clrdtim- lent in Under tbo House of TABLE OF CASES REPOETED IN THIS PABT. [Anderson v. Mason ... page. ^Dgus V. Ibbetson (Dower-lfotice of demand.'requisites of') ^ 78 ^Dnis et al. v. Cook et al arbitration-Amendment of award.) ^^^ Lustin V. Jioono iatderaan et al. „. McKenzie et al Jelloni V. Murphy (^Magi.tratassummo„s-W«,tofVo«ceonIw^;er.; " ^^^ JJack v. Sawyer. (Preferential as-'ignment-Begi^trntion' rll / • ^ g-trat-o„-Construct.on of Bev. St.t. chap 19. sec 6.) Jcnd et al. v. Ives (P'ea. construction of-Eju^IJe'r^pni;:::;,;;;;; ^67 ^outilier et al. v. Knock et al <^----of«.nt-.me.:..:;:-;;-^^ I^arrigan V. Carripan (Will, proof of by certified copy-^„' j ' h1 8 py instructive presence:of testator.) Mlins V. Reid et al » • • ■ Si- (Assijfnee under Lisoh-Pnt t»«k* • ' ' " 252 ««,„,, ^"'""^^^^^'"^^^•Mtyof-Surpluep.oceeds-Adve^epos. 1 ; *• TABLE OF CASES. Elliott et al u. Lfiflds ^jj^ ^^to in'ruleTr'"'""''''"^'^"**"'''' "»''"'«>• ^^ ^"°'"^y for-4ffida,it« not referred Freeman et al. v. Allen 293 (Prior possession, requisites of to maintain ejectment.) Garvie v. Penny „. (De:i.iirrer, joinder in-Power of the Court or a Judge.) Grant V. rJa II -» (Rule nisi to set aside award, requisites of.) Huliburton v. DeWolfe et al 38j (Assignment-Creditor allowed to come in after time limited.) Ilalibnrton el. al. v. Haliburton et al 312 ^"^ailirST"" °'~"""" °' *'" '°'^'' '"^'^"'"« of-Remainder", vltld Ir Hamilton et al. v. Brown et al ' 260 (Injunction— Affidavits, requisites of— Practice.) Harris v. Fafler „_< 371 (Affidavit, heiding of-Change of venue-Practice.) Hartsliorne et al. v. Wilkina ot al 276 1 (Daath by same calamity, no presumption of survivorship.) Lyon.s V. Donovan .. sj» ^\TS'""'"^''''^'~^"'"''°^ judgment in arbitrator not sufficient groundlMis- McDonald v. Mills i^,, 1051 (Mtg,.trat3V summons-Endorsement -Actof 1865, chap l,8ec. 6, construction of.) Mclntosli et al. V. Oullen 2681 (Contract-Subst intial performance-Measure of damages-Supervision.) McKenzit? V. McKenzie. ,Yg| (Est ito tail-In re Simpson's estite (ante vol. 1, p. 317) affirmed.) McKenziu et al. v. McLean et al 3241 (Agreement, substantial fulfilment of-Mortgage, delivery of-Hogistration.J " " McSweeny v. Wallace goni (Setting aside pleas as false, Ac-Practice-Applies to foreclosure suits.) Miils v. Smith ,.,. . 86 3'>8! ^'prvinc'e?'*"""^ '"'*'"■• '■^''"'^'*''^ ^f-English bankrupt, privileges' of In this " ' ' Peart v (Eject Cou Pineo e (Schoc Pope V. (Rpscir Priv: Qneen, 1 (Bigim circui Queen, T (Miirdei verdic Seaman, ] (Will, CO (Sheriff c lands u Smith et i Smyth V. License h ch. 17, i Tancred v. (Husband Temple et (Possessioi maintaii Tobin V. S.y (Remotenei Ziuk et al. i (Will, actio TABLE OF CASES. no its not referred 293 71 72 381 312 ler, ve8t«fl or * "v. ....'....260 371 276 180 round— Mis- 165i truction of.) 2G8i .) 1781 3241 ion.) 3321 ...86, 32fil i of in this Peart v. Peart (Eject-r.ent-c;.ilm undertenant for Court can rentify.) Pineo et al., In re (School law— Construction p' \ XI. Paor. . 73 years, necessai-y proof-Error in deed, when 178 I'rov. Act of 1865, chap. 28.) Pope.;. The Pictou ; -.am Boat Company ig 17fi '^^^^^^i^^;^^^'^-'-''^^^^ -'^ ««-t-;pp:ai L Qneen,ThG v. Allen... ^''cfrcZ:;f:'^n.:!^:i"i"««. p^oof of-Ad^is 373 m.8tanc«.,lproof;fl'fe"enre-Prel~mptron.T"°' Defendant-Corroborating Queen, The v. Dow..ey, Dougla.s, et al 93 ^'lertc-t^"'""'"^*""^' evidenee-He^rved case-Power oV Court to "seVli^ Seaman, In re Estate of (Will, construction of-Incorporation of books,'4c'. i'n-BepubHc'ation".)' Smith et al. v. Smith et al ^^^^Tna::S^,'^il^^^^ sale-Objection to secondao-'evidenL-sLe ' oi Smyth V. McNeil ^cT rT.'nott'tfoSreT ""^ "*'* ^""'"''^ "~"t« «tIt'ed"-ProVictlf 'ma! Tancrod v. O'Mnllin et al (Husband and wife-Gift inter tVro.-Paraphernalil.) Temple et al v. McDonald ^''Sutaable.)*"''' ""''^'' '""'*'^«' '°' "^'e. action for use and'o^^^'pationUt Tobin V. Symonds et al (Remoteness of damages-Demurrer to declaration.) ' Ziiik et al. V. Zink (Will, action to test validity of-Costs.) 185 303 75 ,145 155 141 175 i SI A preferei I may be, and ■not an " ass I meaning of t (no effect unt Trespas jPleas, jusi JMitchell, e At the t jpeared tha lone H. B. 1 1862, Th jthat this a Jrequired b. [Statutes, cl Iment for th [of the sixtl exception i The lear to the jury, It appeal Mitchell, of I the second, ■ strument., oi [ the real anc [powers of CASES DETERMINED BT THE SUPREME COURT Of NOVA SCOTIA, IN MICHAELMAS TERM, XXIX VICTORIA. BLACK V. SAWYER. December J, 1865. A preferential assignment, no matter how slici,f«- •. . Lay be. «nd though made for the CfitTf a^ rCr T '"'"""" Inotan " assignment for the general hpnpflf J „ ! ^ *^^ *''''«"0'", is Leaning of the sixth section 0^; 1 "r^L stlt^t"''"^:'" '''""" *''« |tio effect until registered. Statutes, and has, therefore, Trespass against a sheriff fnr fai-;,,™ « i • i \Z>',^ ■ "°"' *'™'=''''' <■<"• *« d^fe-dant contended The learned Jiidge reserved the point, and the case ^ent to the jurj, who found for the plaintiff It appeared that the assignment was made between H B Mitchell, of the first part, the plaintiff, one of his Jedlfs of i «,.>■' I " P*-'- ^' conveyed to the plaintiff all the real and personal estate of the assignor, with the L« powers of sal, and oolleotion, ,p„n ,r/st, ^ifpaSerff. 2 BLACK D. SAVVYEU. the costs, disbawcmonts, and cIuubo, to pay tl,o several per-l sons named ,„ tl,e scl.odulo the („ll a,n„,„„ of their rospoeti -e clajms, or s„ch part thereof as therein ,.artic„lar]y sne ifi d and then to pay the rosidne ratably /without any pr ,y or proferenee to the creditors ejecting (he deed. 'The t n ^ewas hen empowered to pay all creditors i„ f„ll who J ela ms d,d not exceed, or who won Id accept ten dollar „ ull; and to give Mitc>,ell the ah.olnio property in hs ho , hoU funnture, and goods not exeoeding the'value of ? The ass.gnmen also contained a release from the creditor j and provKled hat no creditor shonid he allowed to exe nte the assignment alter the expiration of two months from" date or such extended time as the trnstee should deemr sonable and jnst. The schedule of preferential cre"ifo?j comprehended . •' First-Mary Mitchell, for the fall amou U f W cl«™, secured by judgment, „„ which 0X00.2^^^ TT uld deem reaj iitial creditors full runount of 3xecution was Second — The 3ution issued, I paid the full^ in, of Boston,! for goods en MICHAELMAS TERM, 1865. jliiiig. TI,cso preferential assiVnmeut, »r„ ; .Imcricm Leading Cam M ^T *'° * "y'"S fraud. tMorvation for tho benefit of fL I "f "'"8™°"' contains a W- «^. a Joed of a gm -■;:'"; 'iT^' '" '' "^o'""- "Jor tl,o Statute of Frtul J" '' ''•""<'"''•■'>' ="■'! void, :ion th.at tl,e share, or Zort.wTt, '""r'""" " '">"'- »oxoonte it within tl/e tC I ite/ " M f " "'''^'""""S .ssignor himself. (Cites Burrml ? ' ^° P""' '° "'« ignment hero is really Ltt?, . -^''"Jnmente.) Tl,e as- W.«. Sep. 458,. it \™^, :^'':';.:f °f ^>- ^^l^or. In „ f part of the property assig t ZIZT" '" "'° "''''""^ fcnt and void. In 5 John, A. n a'""g™>ont fraudu- particular provilntrdtTih^tl ''' 'V'™ ''"^ "-' be paid i„ proportion etc „l! , f ''"'"''" ''""' ""^ loliver a comploto disc la gt'of II r T ''?'" "^^""° """ -reive, and unju.t. Ilofe: la 'bel^^^'ar "'""""' ir the general benefit of creditor i , " ''^'"e""'ent Jass-perhups only one partio ,, ' v °"'^ ™" P^'-^^-'ar benefit under it ? Pa,t,cular cred,tor-ca„ receive any liters are pre nil before the Jor creditor signed to paj atutes, chap, . 36. The lat B question h •enefit of the its the -word nment from if creditors I to be pro- ence, regis- 3 are called ,hing. Tije akeu everj Sutherland, Q. C. confri ti ignment for the gen ^b^nefi ° r^T'" ''^™ " » as- ited on the other siTe 1 a" ■ ""'"""■ ^" "'« -^ases .the English Uj llXZ'rT'; ,«'^--S-er„ed lent for the release of tl,„ !, ? *^t,p„lat,on in an assign- Ite benefit of the de^l has b f' f .V"'"'™ °' --'""S ^laim of the cro vn « !„]' "'" ^'^■' "gainst f r«feo», 3 Price, C A de . of f '^'"""*' "^' ■^^="- ^• sustained there containing a L so ZfZt ''" "'" '"'"' in within six months shnn!l h creditors not coming lignments, 114.) The riirht ^7 '• 1 "'" ^"«'«'' o" -*»- n deeds of ^^^^J^i^::^^:;:-::^'^f^<>r^ a admitted in England. 5«m7i o„ ^.^^"^''i;^^^^^^^^ ■ gnment containing clauses enabling theTrusteel I' ,'" llio debtor in winding up the .-.trair, rf til ?! . ""P'"^ ■.i^gon his trade, and to allow hLo»ro;fh;'t''''V'' """• IWor, has been sustained, ni,, ^^ 'Ij^^ ^"^'7^ ii t :i » ULACK V. SAWYER. Uams, 9 Eng. Law A Eq. Rop. 481. (Cites also Burrtll o Assignments, 107. 8.) i?;a.cA«rc/, (?. 6'.. follows on tl.o Pamo siclo. Tho echoduH only makos proforcntial thoso creditors whom tho law hJ already made preferential. The Act does not my "for tl.' general and equal benefit of creditors." ' Tho Loffislatur, never could have intended to shut out assignments containin a release for tho debtor. Tho statement of somo time in the assignment within which creditors must como in is indispcr sable for tho protection of tho trustee. [Bliss, J. Tho " L. eral benefit of creditors " means tho benefit of all tho cred fetatu 0, to give efl-oct to every word. Tho word "ffonorai must nrivn er^mo mant<:.%,v. T>, r -r ... " must have some meaning. Bliss. J. Ts not this assignment; in effect, a particular assignment for tho benefit of certai- creditors and general for all the rest.] (Cites jrUUams a l7XZlT '' ' ''"" " ''^''''""' '' "'' ' ^"^- '-'' Solicitor General, in reply. Vtir. adv. vult. the^Courl^' ^'^ ""'' (r>ecember 5) delivorecT tho judgment o| Several cases were cited at tho argument for and againj the al owing of preferences in deeds of assignment f6r tl benefit of creditors, most of which are collected by Burrill i In my mind, I must confess tho weight of argument fs e, tirely against all preferences, and I would be well pleased our Legislature would follow the example of tho great con mercial States of Massachusetts, Pennsylvania, and Ohio, b abolishing them altogether. But that is not the question hen Preferences are clearly allowed by our law, and in point morahy, ho preferences in the deed in this case (though, .s likely that the executions would sweep off most of t effects, if not all) seem unexceptionable. The ten dollar ad oi..„f *V c.au.es, tiiuugij there is more to bo sai about tliem, seem reasonable enough ; and the limitation ■editors lizi'd, tho lined in 1 Tho boh '; was re^ lonofit of [uenco, ai Our Act r III) of iiglish Ac owever, a uostions, Iho Englisi •f sale (wh ill of sale 3 regards 'orsonal ch lerely pos [ection, aga null and v leaning of n Bankrupt psh Act, bu It is to be 861 and of enofit of tl iion, inserts lion is founi ct, and sec There hav he Statute ; 'al requiren hich we ha :ases are rep ^ew Reports in hand. Th :ho Statute, naportant of In AUsopp he trustees ( MICHAELMAS TERM, 18CJ. ■ rcditors comi„g ;„„,„! tl,„ rolouso l.avo boo,, o(to„ recoc ^ TI,o bony, la „r the ,I„ocl l„.s „c,t boo,, ,.tlHoko,!-tl,o point ., w,.„ rog„ ,y „,.on.i,.l to it-w,« i, a dood for tho gono a o„o.,l of 1,0 orod,to,V/ Tl,i, i, a ,„att„r of »o,„„ co, o uo,.oo, a,id I bavo lookod i„to it ou,-ol„lly 0„r Aot of I8C2 roi.oali„g tl,atof IS«I,a„d formb.R eban. Mi:tr:'is;r^r^7i:fib:r:^----r owoyo,-, and o„„t, «o,„o of tbo p,.ovisio,„ „„ „bic, vora,' r ' "f 'f. f ■ g'"%' iil Jay» for tbo rogi^try of tl, b," sa (wb,cb our Act docs not give,) „,ako» tbo unrog „,." s rcga .1, tl property ,„, or r,gbt to tbo poMos.nion of any fersonal ci,attel oo,„prisod in ,ncb bill of .«!„," ,vl,ile ou Z he,-oly postpones tl,o operation till tbo fili,g. Our lond c ,o„, aga,„ ,, f,.a,„od as if wo ba.l adopted °l,e e"pre„ion. n,dlandvo,d" ,„ tho lir.t, and onr ninth section gve To lea,,,ngof thowords "apparent possession/- so wol Ikno ,! In Bankruptcy la,v, and nsed in tho first section of tho En" 1,81, Act, but omitted in ours. " It is to be noted, also, that the first section of our Act of Knofit of tbo creditors; but our Act of 18C2, in tl,o first sec f.on ,s ound ,n tbo Jausos of exception- section 6 of our M, and section 7 of tl,e English. Ihe^SllJr™ ''7";°™™','l»<>-ions ou the construction of fhe Statute ; most of them, however, on the strict and tecbni- pal requirements incorporated with tho English Act and khich we have wisely, as I think, avoided it ours These bises are reported in the La. Times, new series, and i„ the Uand "^ rf' T' ''""' ""''■ '■""''^"'""^ °» 'h^ P»'»' now I'^^asopp V Da;,, 5 Law Times Eep. 321, tho defendants Wie trustees of a married woman, purchased tbo goods unde; 6 BLACK V. SAWYER. ?on;i::':;; til::'::- tr "'° "■"^-•. -" p»4 tho following rocoinf p • ° 'l" '"P"™"' '"o, taking | '-..01,01,1 good. .„,! offl , ;.„ If:,' r p"^f-° "f "r Wy a„„ val„.,lio„ a. p„,.e,,rr", 'b/l'-r'n'""; 1 t^. J. as trustees mmod in thr i i o ' *^* ^- ^"^ I powered so to p„rrb,,,t, " ,^"'7°"'' »'' o"- '■» Stl, Nov., ,8.,S. Geo,-go Pre ° ' U ° ," °' '"'''' ''°'"' * tira husband's house n,„l ZZ \ ^''° e°"''^ ™™ined in //a at ,ho suitoi l!; p iir !"''^»,?«™"r aoi.ed under «-. Ti,e,..e,.io:::;'rLr;i:r^„i f:;?;;';; "'^■•■-l tory, was not in substaneo a bill „f sale tn!'' "'™"-i registration under the Aet of S^J i 'f'"'' "''"'""■"'g not. Per Pollock C B . W ' ' " '™' ''°''' "'=" " ^a, l Wond the s.,;tietie'-of Z"!::""' Z' ""'V'"" ""° ^"'i "The mischief of which til . 7^ •""" "'■arawoll, ]{. : place by a parol con, 'Ic-butT"' ^ "^*'"' "^^ '"'^H Statute has not snol In '^ " """''"""' '" ^^ ""'« «'» bill of sale m , t be l! T """IT'" '^"<'°' ">■ ^ " A passes. This w, s o ,T„„t T > "'"'''' "'° P™P"'H In the r,,Jr "^ ""' *"oli a document." ! T8^; Lth t;frt tTo7. ^- .?'^' « ^- '^'•- ^0,1 William.,, J., said "The r. , , ^""u "°* '''''''^'"S to ours, actions by Latin. olrl^T-T """^ '''""^'•'=" »»oh trans- sale are Allowed „ bT X "w'T'' ™ "''"'' "'"'"^ '""' "' those fetters, or diminlhlv "" ^ "Sht to lighten conditions bv an r"fe e nee r^,'™?'"' "'" ''^'"S^^y "f M oaso, or the' 1 ffiC^ '^f V" '". ''"''^''^P "^ the particular "•^;hther.egisE:^,:„o:noi;:;t:;f '""- ^""^"■■-'' p-S\-:'i:s t;'„t:;:r:!^':" f ^-^fi' of crodito,.^ of all tho 0,-editors ^f» «' " '°'""''='' ''"'• 'l>o benefit caption of tie let 'of 1 sff """' '! '""''' " "'""" '^° - under that Act aUhou^h tt Z '!, "."' *" '•"'""™ ''ogl^fation o»ted by all he'S r'^ 1,?^ t"' f ' .»?P- '» bo ej cntft^ 1 „ „ ' &" "-"^ "eea aoes riot g MICHAELMAS TERM, 1865. 5bun(I, and paiM '•ato iiso, taking • and Mr. C. J., tlio bonofit of irchaso of my ncloscd invon- I^fr. J. D. and nont, and oni- 3 of such dood s remained in seized under idant claimed itli the inven- icli requiring ild that it was case one jot Jramvvell, B. ; m may take say that the xle, B. : « A he property Times Rep. Jng to ours, [ such trans- ■lone bills ofl ' to lighten ency of the B particular conditions 'f creditors! the benefit] bin the ex- ogistration to be exe- e General \ :32, where I.C pomul, „„d o„„tu„ung a roleu»o to tho assignor, but no ■o,o,va.,.,n or prefercoo,. Tl,„ ,|„o,1 „•„, .uUo^ „„<]"° ,0 ank,.„,,,cyActof 1861, soctio,, 192, an.l wa, „,,,,„,aTy Court.-Ii,,„nwoll, I)., |,„„„vor, o„tor(ai„ing groat .kubts bout tho raattor. ■■ The f|„e>,tion i..," said bo, ■' wbtlbor tblx o„t,o,, to to nil:, of .Sale Aot a,.„li„, to a,;ig„„o 1 1 • bonofit of ai: tl,o oroditor,, or tboso made for snob a „lbc 'Lmlt ' ail,-,br tbo bonolit of t:,o gonoral bo^oJ Uoidng at tboso decision,, I know not Ibat muob is to bo nado of ho ,l,«t,notiun botwocn onr Aot and tbo Engli I, in nr,„,„rt,„n of tbo word "gonoral." Rnt wborovor p fe" "COS aro g,vo„, l,owovcr n,eritorious tboy „,av b,. tbo„.d t or pccal olau»os „„rod„ced for tho paj.nont in full of ma| um. as „, tins oaso, or for tbo protoction or ooraf rt of tb" :s.enor or b,s lan.ily at tbo oost of tbo orcditors I an. of p.n,on that U.o oxcoption does not appi,, an,I 11,7.1,0 bTl of lale has no offoot till it is ,ogisto,-od. Tbo rtocd oo,,ton,platod by tbo Aot sooms to bo that »d,iob e find ,u Picliatock v. Liiskr 3 M & s! q7, no i ent " .aid r n,vi 17,1 1 ', ' '• ^"'•■'' »" assign. 1,0 mr V If r '^"'""^"'■""Sl'. "on^os out of a disobargo by ^1^ par y of ho moral dutios attaohod to bis oharaoter o^ redt'rs""'""^ ° f""" ;™"'""° ^^ «- "'-lo body : > h.ob bo party st,pulated for a bonofit to himself, but all the :s f "'" ''"'^' '^ '^"'^ '» "" "'■^'"•^•"od ;mongs; hi: I am sonsiblo that this docision will nocossitato tho regi<. lat.on of almost ovory assignmont made for the benefit of H, tors n, tb,s Provinoo. But this is not an evil, no, wi I it acted on. Creditors, wbero there are any pecuniary reserva Kns of any ki,,d in sucb assignments, 'o^gbt to 'hr Z frees, hconso and opportunity to inspect then,, wbioh I have t^nown somefmesto be refused; and tbo expense of proy.d mg a copy for regist,-ation is nothing compared to the oonve- tTeroorit™"'"^" °' "'"'• '"^P^^""'' "y «■" "^d'-'ors and Attorney for Plaintiff, Rickey. •^"''S™«««/or defendant. Attorney for Defendant, Kirby. CARRIGAN V. CARRIGAN. .« CARRIGAX V. CAIIRIGAN. Dictmbtr 5, 1865. U i. nho «u(|lo<,,ntl7 ««cst«d wlu-re the tostator coul.l 8ec the wUneL, .i.n Ejectmknt for lands in ll,o County of Antigoni.h. Ploa denying the right to tho possession, Ac. At the trial boforo (>..Ba,Tos, J., at Antigoni.sl,, in October 1804 .t appeared that ... plaintiff churned nnde; the will of one latnck Carr.gan. A notice, dated 30th June, 1864 o «^^» .ntenfon to produce a copy of this will on the trial wa put n and read. A certified copy of the will was receim m evidence, the defendant's counsel obieefinir and n.™b!l an affidavit stating that the original was' req^Ld '"'"""" The defendant's counsel also contended that the will had not been legally executed. ^ It appeared that the testator, having previously signed his na,ue to the w.lJ, requested the witnesses while ho wlf s'ttin! up .n bed, to attest its execution. As there wa ,7 tab uB"" -"- he room ou which thoy could write their names, t ey e re f' ^l.e J. to an adjoining room and there signed their names to it hoF"™". ^- ■ door of the testator's bed-room being open at the tkn 'a 'd ■»'"'» ^^ the testator being able t., soo the fLt ,f .i . ■' witnesses as they knelt down bv ,t .1 \ f '7 P'^'^'P"' rru 1 , T , " "y ^''^ C"est to sitrn their namf>« The learned Judge told the jury that if they tLgl 2 „ s ator, by sitting up in bed, or by inclining his hefd over tie side of the bed, might see the witnesses subscnZV names though there was „o proof that ha ua,- did s!': g^nt. to set the verdict a:ide.it'rn:wt„f;a^^^ ion 3C c lins ft wii [tor in till low nay ;liereof, s latfer so 'ecoived original v Sngland i for on Ev' >ato, but [Section 2 tends to c copy pnto h: ulti be ufrci«nt, t^'Tudg-e slio: iLDesBarri lie defend lie certifie iff notice ivas shown The Ji 01 'f the tes |[BLrss, J. Patrick Ca [was all rig nient? The iu other wo) but the sigi kill," his na ledgment of 'does no!; de tire must be W. A. Johmton, in support of the rub Th^ rv, • .- Wf'''' ^83 ; are the due «.p.„t'o>^ 4 iC n 7 J ^'''" q«est,ons |feefarf v. ^^oe. .he o-riginar;il- .rl^bt '^^^^:^l J copy, where tlie teen given, the witnesses sign, ually (lid 80C tliem ;onidli. Pica. Ii, in October, or tlio will of ^une, 1864, of the trial was was roceivGtl nd producing I. MICHAELMAS TERM, 1865. ti"" Ha,-, ll.at tI,o |,rol,„to „f . ,., I^™"r sec i-oof, s„an bo .ooito r„v:;-L; : ;^,u„:""-' 't r liitter 8oct on the T>iv,Ka* „ • mi c.isos. v uuor the original will n,„st alwn,',,;; 1 ^"''•,.,/'; '"^y-^"' ".'» c: "o tuk! ^::r v„:t r "'° f -• r ^'■""'- - ilouid bo .c,.d as '"'l p, 't""!^ ;■?■■." ' "'"' '°""™' iaffici„„t aiiou^l, T „ I • ■. '"^"^'"" ''O" '™« oloarly ■ . . . ' •^ V 'tclSOn lor d(H! inin.Y. <-^ ,1„ ... - ... ly signed his 3 was sitting no table in +1 -n X .^iDesB-vrres J ArJ 7 ^'"*' '"^'^ *° ^<3 produced. the will J'^^',,,~;thad ?^ n'''" '"■ '^^'''"■"^' '' '^' ««'vas that he CO U ° ; ;^ j-^;'f i- of the intention to produce i«- notice liri' u : ho"''' 'T r'' ''' ^'^'■"- 'vas shown on JulT ?^''"'^ '"''''J ^"° '^^"=*« ■J Tl^ T 7 ^'^^'^'^''^ ^« required by the Statute. TBliss '^7 'f'fto2cf'T ^, ^^-^^ --t judge of that due Taul' : 1^' ::::la.:^:: c;;:; ii::^ -f r ^^s- "^ ^^i!-^^^- ^t the trial, tvo principal tlieir uamea. gilt tbo tes [can tlio Ciui-t conti-ol it ? I think noM Ti „ • ., ' of tljo testator l,iv,-n .' """'^ "»'-J 1 hero is no ovidonoo IrCLiss J T -^ "^'""^ °' ''"'-•""wlodgod tbo will SS CarrLrLrtat'r.r"" ^"'°'« -^ ™' aving boonl-"." '- «.™o boing sign'od to it ! bo tt^ S '': k^ ""'■ a ""^ "^P^"a on the word '• acknowledf/p 'n tk^ • I^^-are must be acknowledp-PrI i ^"o^vi^^ge. J Ihe signa- Pni/a 88^. , .'"'"^'''^'^^p^- 1 ^esey^r., 11; Selwyn^s Nisi jrrms, »sd 11 Xajy Times Rpn ifi^ . q u rrr **** ;inr. nf o.r;.aiscr; n . « « r":' l" ^'^ " '^"'^''T lioiJorter ;iori of evi ced. Sec- 1S65,) ; 2 Hob. 295. The. [of the Avill by the witness 504. re IS no proof of the due (March execution The witnesses could not have I m 10 CARRIGAN V, CARRIGAN. ^"l^tt2^!. '"'"'"■' <"' ^'™*-'^ "'"^ ^*-, Hi ritev.sed Statutes, second series, oh. 135.) makes certified cop,es of .ny document, etc., filed in any Court in I .sPro rea^-nrofiorr/jnTh:''"'"?™^^"^' ''""•'' ^-^ '" '"« b ui section ^« in the second series. An orifrinil avH? cannot always be obtained. Security must be giv "bll " Chap. 127, see. 92. Tliero was an acknowledgment, in fact nessiouldsl^^^^^^^^^^ peseuce; ,t >s suiHcient for him to declare to the w toesse n ™Vth tti:::' "'r' -"."-"^ '» ^^ ^^-^tedir anAtLre:™rnT7ists„r/^^^^^^ r;f:xi„:yn^?-i^^«-"- ^"' ''"^ i^^Y' Buller^s Nisi Pri// > oo:>. itiQ Lng-lish Act of 1857 DODD, J. There w fendants in the first pli recovery o produced ai series, chap applied onlj and if not application, the original Upon both ] and, in my n a7id Evidence, tended to in- the same Act ikes certified '' in this Pro- als. Section ibt as to the 1 original will ven before it fed Statutes, iient, in fact, sufficient.—- ;hafc the wit- sign in their le witnesses ribed is his 2 Saunders ases recog- mt, 631; 3 hould actu- ere in such •• (& Payne, 688. " In Powell on on for the ere is any > sufiicient r V. Came- under the 2 Curteis, resenco of the same ains were l^he testa- MICHAELMAS TERM, 1865. j. requires four days' notice of tho mtontion to dispute the will Tl. „r,g,„al wdl was produced Lero before the' close of til. rr. A Jolmaon, m reply. I„ i jjoi. Ecd. Sep. 14 Dr Lush,„g,o„, ,n a very elaborate judgment reviewi^,g al the cases, re used to admit a will to probate because the wH ..esses d,d no see the testator sigu. Au attestatio, , „ t Jdo "tesrat,™" .; le "t- "^ '"'"'"' ''- -i'™'»/««"loTa„ atte at n „„de ,„ h,s presence. 1 Orcenleaf „„ Evidence, p. ^56, sec. 272. Ihe devise will bo void unless the testator « .n a pos,t,on i„ which he can, if ho pleases .t. D:z:t"t::r'T t"/"' "-^ ^'■'™'-'- ^-°« - i-ww! 92. I„ 2 Curieis, 32G, it was held that the deceased ™i \ "'° r''*"Tr' "-'"' '"'" ""■"- '» ^''^r mi 3 1 30, rj ' f?°"' "' '■^'- ^'■S"'""™- (Cites al tccl. Kep 781, ,t was held that a will signed bv tho wit "esses m the same room where the testatri^ lay hf M ,W h .-, A i y"^'^'«» ^-0- Cites 1 Curteis, 90S, 14 ^ I hivp m :;S'::'it': "°'^""' '"^ ^^^"^ var, and'th.t'eaeh : must stand on its own circumstances. Cur. adv. vult. ^C w;r"eT Z"'"; '^ ^°''™''°'' "'" J'"'S'"™' °f '■'^ Court, ■fiuancs m this case ao-nin^.- ti, , i- ... fendant. in ♦. • ™ ^™ ">' '""^ counsel (or the de- (endauts in tlus ease against the verdict being retained In 'otv nJresTri''' "■"' -r "-' -'^-'-s tt,!: produced a Z ,'.f ""S'""' "'" "''""''l l«™ l">e.i serierehap 135 si'^t ^ f "" "''"^=<' ^""°'°«' ^»^°"d :pp.0 :o t:::iL^trouX:;^ -i-;:;' and in mv T, d ,' " '"''• "'° '"'' '^ "g"""' the defendant, M, .a my ra,„d, too clear for argument. The 28th section of 12 CAUUIGAN V. CARHIGAN. tl.o Act rofcrro.1 h, i,s oxprosH, an.l declares that tl.o nrob-vto h '\*v^';^ '-i' <•« 1 lobato, or proved to bo a tnio coi.v ,.f "1 iciico. 1„ tlio ': '""' "" ^'"P '" '=°>°1«'' con>pn.;,. of t„:',:t- i : ^ „"V:v"r';;"' "■:, •'""»° '^ pi-oJuccd. it was his own fu.ir,, ,, ° "'" "'''' "'»' quonccs of l,is own iXs ' "'"'' "''"" "■» -=""»»• tior'°Ti'r;i:'f,t::ri'° t '"'■*•'-•' -i""- "-<> oonsido™. Provincial Act ^^^.::Zi:t,nZ7^'''''- J"° signed attUo end or foot thoroof bv 1, . '" "ntnig, otl,er person in his presence 1?] , , "''' "^ ''>' ^°'»" signature shall bo mde or » T f '" *''"'-•""" ^ ""^ «"-^l' tl.o presence f t vo or „1 T" °'^""^ ^"^ "'° '"^'"'"^ ■■« -iiii;the:"::l:'"!r7_t ■;"",' ""' ''""■ -''-"i-othe planitiiT rested her case upon the produc tion ol d 11 cod been pliy— ( on tho niittod by tlio tator, t tho 8id( no proc to tho " tion of duo ox( If tho li denoo t( bo distil sitting I convenii room, tl their kn tho rooir nossos le at tho ch write the over tho witness 1 could fini sonco of have bo€ vol. 1, 2)a quisite th but that chose to li requiring presence ria, from ^ under the refers to a principle Dale, 1 Br t tlio probato ' JiHiid of tlio I tnio cu|»3' of :'s and nialcos 1' of ordering Hliown by luado as well for tlio pro- tlio circum- d tlio cause to stop tlio d admitting » 13th Goto- ved on tlio tlio Act, of lio will and within his to compel loso of tho cause to II was not tho conse- considora- witnesses ute. The 1 writing, 1' by some and such istator in the same cribo tho ttestation I produc- MrciIAKLMAS TEUM, 18C5. j^ tion of a certified copy of tho will, and no evidonco wa« ad- d-od on I'or part as to tho manner in which tho wH hi boeno.ecn od Tho only witness upon that point wImu phy-ono of tho witnesses to tho wil -and hn v. ''/^"'; on the defence. The learned Judge !;h:;^;rc:::'":;:^ lotted the question to the jury as to the signing o I ^ by the witnesses, and told them that if they'tho'g th Te ino side 01 tho bed, could soo tho witnesses thouf^h «J,nrn,„ no proof t,,at i,„ „ct„aii, did ,„„ t„„™ .„,,;.: ',^":::: o tl,„ w,n, , ,v„,, ,„ |,i, vi„w of tl,o Inv, a «„m,;ic„t "Z7 t on of ,t, n„d ,1,0 j„ry, by thoir verdict, f,„nd i„ f v'rrf tl e luo oxoo„t,„„ „f the will, under tl,o cl.arge „( l,i,, I r Lw^ f tl.o.iw, „, „,d down 1,, |,i,„, i, ,,,,J „„,, t,,„ "™ ;P- be disturbed At the execution of tlio will the testator waa ill Bitting up ,„ his bod, and there not being any table or oth" convonionce for the witnesses to sign fho wi tlo bod rooin they adjourned to an adjoining room, and thTre ot heir knee, signed the will „p„n „ chest, the door 1 ad n^ to the .■oom being open, and the testator in the posit onlelt nesses left him_,itting „p in his bed, and could see tl JJ't at the host when witnessing the will, but conld not see them ove "t eZrr'rt",'? """""S "^ P-'"™ »■"» '«an,ng over the bedstead. Such, in substance, is tho evideneo of h! To Z ^7'f -r" "■" ™'y -Mence upon which the j„ y couM find that the witnesses subscribed !he will i„ the nrZ once of the testator. Upon a reference to the cases Zl have been decided upon this point, WilUune on fec«(„™ vol 1, page 80, says : " That their result is that it h^T quisi^o that the testator should actually serthttiL^e"" igT but that It 13 sufficient if he might have seen them if i chose to look." And as tho provision of the Statute fFrfnd,' requiring that the witnesses shall attest and sub cr en the presence of the testator, is continued in the Stat , to Victo na, from which our Provincial Act is borrowed tl« I • under the Statute of F.uds are still a "pS Si refers to sovnral nf fho -H^- -,-,«-- • rvimama r^..•« -1 ,;-''--* ^"^ "i^e^ casus m support of the ffonfral principle he has referred to, included in which nc!Znt m., 1 Brown's Ch. Cases 99, where a will was e.ecuteTTrthe 14 CAKllIGAN V. CAIiUIGAN. I to,wl,c.„ i, ,,.., ,,„„„ „„,, .....t^hcf^t: '17,!" "-f"'"^' «•«» not in (1,0 i.icsni.co „( (P,„ , ,;'-'■'"'"" ''y "in ivifiiosaos so, ovoii iC 11,0 ri,i-l-,i„. 1,., 1 , ''"""""'''y ''■"•" .sec, thoin do TI,o Judge 11,0,0 l,ol,I Jt ,ulT " '""" "'™' 'ig"- iiut uho^o 11,0 to , o ' • ;"";"° ""^. '"" '"'"I'liod with. -e the wit„o».o t : h ;r ' " r-r"'"" """ ''» ^""'^ Stutnto i. satisfied. 1 ' i r^' ''" ''','' ""' ^^ "■«">- the testator could h,>ve sJo . 1 „ t^^ " ' r''"""''"" ""•" sligl,t alteration of i, ^ , li" "Tr T '"" "'" '^ ''' ™--^ The Provincial Act, i„ ^^ ^ ^:Z:'^ff ^ '""• >":*o ,t neeo.sa,y that ho should si"„ i t ,f ' ''""^ "<" witnesses ; it is sufHeiont if ho „ M P'osonoe of tho prescoooracknowlelgo „L ":'■ "^" "'" '"" "' ""^i^ .U-. this poiut ^vvo.^v::^i!TZn^'i, "-•''-- aliead>- referred to, envs that 1,. 7 Murphy, the witness when testator was nfin d to h? ",' ""^ '""'^'^ "^ '"^'""^ wanted hi,n to sign his will Is a w „ I,'' "^f^ '"'V,'™ '^ thoT says, •' exactly see him si^n a iTf' , "'^*' ''« '''"■- «gned to tho paper to whToh I Zi 7"'' *"" ^"^ ^'^ -"""o reme.„ber that he acknolSed ^ ""^ "'""'' ^"' '=»''°' Garvio, another witness "thejir h'^^',"" '° '''•" J»«'»^ desire of tho testator. Unon h ! '^ " *° ''™ *' ""^ "Tvo.„. f.-Ht • - - ""ss-examination h„ ...... t„tau,r. beds.dowI.en he delivered to Garvta paper signed lm'0U{,'Ii tho win- 10 Sttltutu WUH Williams upon CU808 roforred tlio witnoasoa \ ^os wliero tho 'lot SCO thorn 'i'''il>e., 1 Kob. h>sod and her I -'nl»od, and it scon thorn do reason of hor ui'solf hi her 1 them sign, 'inpliod with. Jivt lio could <3 thoin, tho leration tho iil hy a very lot Jaboring r so, I think d. ''erdict was od tho will. ■©, does not eoce of tho i^i in their a evidence 'he witness 3f testator Id him he t," he fur- ^ his name ut cannot " James im at the no an ; naper which ho said was his will I tl.inl. i -a : Hf^nod to the will at the time 7 know h t ^ '•'""" '''' ;-' ^- - -1-1 1. .im. n.^l!::7^::-^x::!;^^ J'^: ;"Hl I nnght sign our names to it as witnosnos Wl Will was signed Garvio took it bark ' 7 T. , " ^^'"^ looked at it, and read it Trl ''^'^"'*' ^'"' ''" ^''«" iniplicd from all ,i,at tukos rJ-.t J fl , ' ,^ '""" " '" '"' (1.0 will rrn,.„ ti ■ ; ' "'" '™° "'" witiioesos Bim W;a;.o ,';*''""/» .'-";'>■ "-^ «'-"« - "■ to « " "'''^ ''" thoir „amo. to it. Mmi„„^ Z^^^ TZZr"""" luo icioo or It, to the witnesses and ronui^aia +i \. subscribe it, thi. i. a sufficient acknowbdlent 'f ' ™ tare, but not where they are r,„JuiI .u ■ ^^ °'«'™- the testator mere., oa^^ ZXZZZ:'^:^' any explanation of the instrumout fh ;aro In l? tZ cases referred tn hxr TO-.-ii: "^ »'5'"ag. Jlio guid.able Id ul ^I' r.!':t ""r™-. ™/ very distin- Garvie a guishabHand upon^eferen^^oThe^Trbrrn:^,! .... Ciise under cmisiriarot.'^r, •., . . . " ^^^"'' '"" , '■- ^"^^ "" i-uci" 11 will be tminrl th'>* ♦»— .»c under consideration comes within what he calls the ^sull of the oases rn favor oU sufficient acknowledgment la, hi 16 CARRIGAN V. CARRIGAN. :THK dotes to tI,o pasoa i„ Willi,,,,,, that I have roferro,) to will l,„ 1 fo.,,.d ™„st ,f „„t all, ,|,e autl,o,itioa „p„„ tho pot ' '° I I ndmt ,t wo„l,l l,„vc boon bolte,- i( (l,o |,ar, ev trial should be discharged with costs. ' WiLKiNs, J. On all tho points a,-cned in this .„.« r with the opinions that have been ewess«l bnttr "•""""I f4r3%:ir.rTe;::rp:rutritr"^^^^^ aware that a virtual acknowledgment of the teat "' ^'''l ture „ade to, and attested by, th! sub or bi'^g w ,' ^^ ^vA fied the S atute, provided there existed s„fflc,",,t7roof ij that signature was actuallv subsf-rlhorl of *; !■ ^ I my name "-must neomarih refer to thetL. f ^ °1 the will; the effect of it was weakened If LT T^v'T 1 his words nttered in cross e^atnat ' : ^ l"" S' ,1 name was signed to the will at tte time"' 2^ .bou^h I f 1 how natural and probable it is that a „nhJ.-i ' ^ ^^1 will, at a considerable iisJo^V :iZZ<^ZT'''%V\ subscription, should speak doubtfullv abot"h "l^"!- «on, oven io case, where but from d;fective me^nfo;; n'o'drhli MICHAELMAS TERM, 1865. 3>*ro(1 to will L,c point. lied Judge wlio the jury, hut it trial, and it was roved. It cer- n-suit. If the sr the will was lessea for their in the nffirma- fuct ; nnd his Iiis case is not J verdict, rule for a new case I concur t there is one Iculty— and a case of Blah I was quite ator's signa neases, satis- >t proof that rae to which > then exis^ or could be ich my mind the witness " I saw his ich I signed Jxecution ofj tralized, bjj I think his 'ough I feelj (witness tea time of his Jiifc m ques- •V no doubt i".p".^iti.,„ on testator.,, I l.Ltfe/lt :/:':"" '" r™"' -listi„g„i.l,od by peculiar and e „ ,0!;™ ""'• "'""«'' yet an authority ti the effect th™ v e "l:;:;':,?":'' " ledgment of hi, signature by a tostltor i! ""', '"='">°''- existence of the simituro a, /c, , . ? ■ °""'P'°te. "lo ledgment ma;, le ITZ LJ "™° "' "'" '"='"""^- stances fron, thiol, tlti^ne, ZT T; J''° "'""""■ case drew that infereneM"™ aTt r; ■"^^;"'«; ■•" ,"f W.11 .neludn.g the signature of the testator it!'- '"'" handwriting. 2nd VVh^n il,„ ■ '°'""""^' '""» "> '"s oivn !n.ant he no! only drew t ,e w n f - """" '"'" "' -"P"'- ' ^"^ 'Ggai proiession. 4th 7Mm o**^ * i- clause was perfect as regards form --attestation p:rld;to,:f^,^ettr:r^ rr "■" ^"■•"' -^ U tl>e time of his aeknowlodl . '""'"" ^ ^■>»'>"-« frned by tho autho tri^^^^! J 7Z^ "^ '" ''^ ^<"- brinoiple of that decision Hi n.5 t ' "' "'"^"''^ ">« loss not appear that tirwillVar^ . oT rtlTte t7^" " iMve proof, which is not less stron/lf h u ''"°''' "" ^i- of execution, ac,„Viredt, ft tnt^^^^^^^ 'vhioh the witnesses signed Murnl,„ '" P"P" . THE PICTOU STEAMBOAT COMPANY. vie who, a fow moments before, had received it from him So might an analogous possibility have e^cisted in the case cited at the t.me of execution by the witnesses in that case. An expressed desjre of the testator tlmt the chosen witnesses shonld subscnbe a paper that ho declared to be his will-tho -!w r^ I ' ;f ^'^' ''^'''^' '^'^ ^^'^"««««« -' i"« desire eobscnbed as h.s w.ll^these circnmstances are common to th case of Blake v. Knighi, and to Carrigan v. Carrioan Z I cannot think that the circumstance ff the testafor .'„ the former case being a professional man, which Carrigan was not and the fact of there being noticed alterations on the Tc of the paper ,n the former case, which did not exist in the latlr BO d.s,„g„.sh the two cases as to prevent the cas un or aSn^r^ '' "*'' ''''''" '''' operation of the English Attorney for plaintiff, Miller. ^"^ discharged. Attorney for defendant, B. McDonald. POPE V. THE PICTOU STEAMBOAT COMPANY. December 5, 1865. Defendants contracted with plaintiff for the purcJiase of a .t^.mhn- ♦., Tjegociations for the purchase being carried on Cw 1 1 ? » "*"™b°«^ M •defendants on the one hand, and Z pSff "dr ^ ^ '" ''*****" M parUy by verbal communications between Ldt. "T °" *'*" "*''"• *"1 •gent. The boat was delivered at SummeU^e Prin^tTn "V;"' ^'''"*'«"'' plaintiff's agent (who was authorizedTy the Jfe^^^^^^^^^ '^^4 there for them), and by him taken to Pictou thT 7 , \ ''"""^ "^ H The defendant, examined herTmmelSvon he- -"''«' *'' defendants, that riie did not answer the reprercnttrcrmade^^^^^^^^ .^''''"' *"' ^"^'"« ^r^L^nevefurd:^^^^^^^^^^^^^ i^/r ^ *^. ^'^^ •^^^^-J the part of the plainUff 'and hi. a^ „t et LTZZTiT T '""' " cause permitted evidence to be siven of !.?« k . '^"^^^ ''''° *"«^ t^e ter of L boat maSrthe 2 „t,ff '-^ ^ T^^^^ found a verdict fortetfdi^^^^^ defe„d.„es, and the ju^ ..to. G.,3 .isrepreaenution by ::::X^':'.^^r^r^^ ASSUMP stated, th( and mater delivered j jiloas, fran nd of hii induced to ions were 'laintiff. At the I appeared t •laintiff a ferry boat a n want of c n the 12th lie owned, t ■he Charlott ivater, etc, i lent being ] '0 see the b( ;Ijat he had i he intention feel disposed for about ie2( lamo dayadt ;now if he in 5ot, to Stat© 1 MICHAELMAS TERM. 1866. I. 18 jooat were distinctly provej Imt tli«P .nmlo any false rcpr„.e„t.Uc;n.. or Z aZTJ'T.'''"' '!"' '*""""'' "''»'«" "Ront. *''*'' ""^'^'^ «' the time of thoae made by hi. as the principal U bound by^the doclar^i. „7, "7 ^"'"""' ^" «"'^'"» f'aud. agent wa«, therctbro. in law, the fraud c^"nr T"'' "'"^ "•« ^""'l "^ "'« I Thirdly, by all the Ju.lgc thatTr ^ "'P"'' nnt« in «,elnding the contract """ "" •"^" " »« J««''/ the defend- kin'l!tS,cntfn"-tlu;t';;o^;!:r^^ '''''' *"' '^-««"-. J J-.-WlI ti^and h. agent Ja. a ".ffleL ' e^l rj';;:''^ '": ''^^^"^-'^ »"« P'^"- ,k.ni"l»Dt8 wore tions were false and fraudlnr.tr"' ","'•' "'"'='"•»?'•«"">«,. .laintiff. "-""dulent w,th,„ the knowledge of the At the trial before Dodd r «f u- . 'ppoared that the defendal ^ ' '^""'"' '" ''»"«. 1865, it '■aintiff a steamboat for the ZT' '"rT""'' '"^ '"o rerry boat across the harbor tfS„;l "17 T" "' » " want of a etearaboat for this nn ° ''"'^'''lants being -the 12th May, 1864 s a in^thr.? uT'' '* *''» P'""«ff 1.0 owned, and ;o„ld sell a „l k"^ ."'' """^ ''"'°™"» «"" ho Charlo'ttetown ferry desr ?!:""" """ <"■"« ""o" o» •vater. etc., and inti„a iL th t fn L "" ^ f'"''''™^ »' -ent being likely one of tl coll ^X "[ Vl "™»S- '0 see the boat. To this the dwS "'f."" P™''»'>'y go over ;ta he had taken the en<- ne and 1 . "'""' "" "■« '«"' «»/ ."o i-'onti„n„f oonver«rherfnto a I™ ""*, "' '"« >«"" -''^ oel disposed to sell the en^nl wLh iT,^"' """ ""^ "<»'''' lor about mo Nova Soot^f ^rln t k' rf"'.*" "' ^°°'' lamo day addressed another letlerto th» , ' r"*^'""'"' "'« ™w if he included the boat tt e'^j^!/,^:: I-f.^f""? *», so POPE V. THE PICTOU STEAMnOAT COMPANY. letter of the defondai.ts the plaintiff replied on the 23nl May , stating that in view of the U8of.jh.OH8 of tho " Ino " as a harirJ I he was unwilling to disposo oi hor, and thon concluded L letter as follows: "But should you want tho whole, Captain Bourko can g.vo you all tho information respecting it • and I navo given him my views respecting tho sale, and full authority j to close." •' * Bourko acting as tho agent of tho plaintiff thon entered into communication with the defendants for the sale of the "Ino " which according to the testimony of Mr. Dwyor, one of th'e defendants, he represented as having a zinc bottom in tolerably good order; that the hull was perfectly tight as well as th'e dock; that tho boat was well built and thoroughly fastened a^d besides the regular knees, had hanging or diagonal knees'^ tha part ot the side of the boat had not been burnt, only * slightly singed; and that the boat would suit the purposes of the defendants admirably, and was just tho thing they wanted Iho defendants, confiding in the representations made byl Bourke, addressed a letter to him on the 26th May 1864 agreeing to purchase tho boat, her engines, and all materials be onging to her, for $1360, to be paid one month after the delivery of the boat at Summerside, Prince Edward iMmd and authorising Bourke to conclude with plaintiff on tlieno te'rms and to bring the boat over to the harbor of Pictou as soon as' possible at tho Company's expense and risk. The boat was afterwards delivered by plaintiff by Bourke's order to Captaiu Evans, the master of the steamer "Princess of Wales" and towed to Charlottetown, and after remaining there submerged for ten or twelve days was brought ovei ;,> Pictou by Bourke being towed there by the steamer " Heather Belle," of whicb Bourke was master, and placed alongside the wharf previously pointed out to him by the defendants. Iramediataly on the arrival of the boat at Pictou the defendants went on board ofl her, and diBcovering on inspection that she had not a zinc bot- torn, and was m many other respects very inferior to and dif. ferent from the description given of her by Bourke and worthless for the purpose for which they required he'r, on *^' IT/*K^' f^'^''^^ ^ ^^"^^ to Bourke and another to the plaintiff (the latter of which was admitted to have been re- ceived), declining to take any delivery of the boat. The I« [pleas all( ^his agon: or those ito be fill induce tl icting u| were ind 'the con tn that ill th [contract ' effect. H if they wc reprcsentt verdict sh The jui having bet ion of ma dance, it n Wilkins, sentation a |to a comple lof tho 23 ni 'nians on tl: Ihere. Mis: [action by th [leceit. Pii Frauds cam [not take mej warrant. E ranty. 2 B. here. A re] 22. Parol e agreement i notes to (Jha 3 Harris, 66 Bell, J., says can be admit -IPANV. the 23nl Mny, no " lis a harge concluded Iiis vlmle, Captain 3tin^r it ; and I 1 full aufhority n entered into of the " Ino," er^ one of tlie m in tolerably as well as tlio jlily fastened,: vgonal knees ; 1 burnt, only e purposes of they wanted, •ns made b}' h May, 1864, all materials th after the d L-5iand, and tlieao terras, a as soon as he boat was r to Captain Wales," and ) submerged i by Bourke ),'' of which f previousl}- Italy on the on board of t a zinc bot- to and dif ourke, and 'ed her, on ther to the e been re- MICHAELMAS TERM. 1866. jj The learned Judge called the attention of the jury to tl pleas allegn.g fraud and misrepresentation by the p i^'^tiff " i Ins agent, and told them that if the Dlaintiff'« IT ^ "", *' ^ ,. bo l„l„o, roHpocting tlio rtoamcr, otc, and > 8otico 3 oaro of" tho •ntract if the while in the >y him to his > same state of water at d after they •n at defend- th American '. but voida- 'tarhie, 257. »f fraud the reasonable »e agent of 3 plaintiff's Oaviea, one he plaintiff 9 not stipu- endants, at t. Even if her. But ' should at Bither, and bused the Z> ^. Jit U' vc Mia., MICHAELMAS TERM. im. ^ ^85. Ai«k also is the denrivafinn f^F *u^ i • ..«. . nrorxjftr Tl.« i t- i ""f"^'^*""" "^ the plaintiflT of tho gave no authority to Bourkt, fn mnt, f i """"«'»• He ...a ,.„„ of „.™L. •■::^z:::^::t>jz:-;:i^ thoy wcro moroly ox»Bg„r8to,i do.or.;,tion8. May 1861 Tint '^''°"'''' '"■''"' "'°''' '""" "f 12tl. co„.r«ot .educed to wnL„ l^Xu Uylm Zr''"' mentioned in tho letter of thaf ,iaf VV' ^ ''^ P*"'^^ by parol negoeiati : : .'"bou L'"" wL""' ''"" °'""™'' partly roducod to »riti„Ka„a°,t|°',„'' " T"'™"' '' beyond that letter t^l|ef:r"""«. "''"• "'™' '' ™ 184, evidenced alt^i.tli r:^'^ ^^'^^^^ ^-J ^raud, and failure of considnLf f "'^' *^ P*"^^^ *bo way. ravforoT^L " ""^^ ^" P'''^^^^ '» the same y- -'"ytoroninnrfewcc. sees, inag ia/Ia. n r ^. J^ 2^2: llditto 381 27q Tk i '"""' ^ ^"'V; Times Jiep., tto, 381, 273. There was no delivory to the defendant 24 POPE V. THE PICTOU STEAMBOAT COMPANY. Bourke was their agent, with a limited authority to accent « parts. He deceived the defendants as to the price (Cit. k tract was rescinded, and, on account of the fraud there wa« 2B%jyitl\^ 'f t^f'l^^' 257; 1 M. ^ W., 352 ^ xj. cK ^of., 460.) The fraud of the a^ent viti'itfi« ihL « tractas,„„ohastl,o fraud of Ihe prinoS. a Te™' f the' *.l ia»;i42 '„ to f at' ''fl ''"'""^ "" """^^ i 192, note.) ' ' "^' ^ -^''™'" "» ''<»"'■<«<», | Barnes McDonald follows on the same side A R,.;.i i, capable of registry can be transfe "ed olt 'oVral MerO^ni Shipping Act. sec. 19 , McLacZ on Shlina H Taylor on Evidence, sec. 909. This boat waHn , "' ' contains no agreement to accept the price TI.L ^ ' ' ten agreement by Bourke as his agent to accInTt " D 7"! ants never accentprl anri fi i . '^'^ ^^- defend- no aotnal del e^ t he„ "t::;."T ™,^ '" P"'"' "^ f^' g.ven by the defendants to Bo.Z wt onl'tn at L" vt' common earner Ht» fnx,7o^ +i u . "v 'I'l aumonty to a steamer. A dlhverv to aT "' "'"" "'"' '"'^ "^ A utjivery to a common carrier U nnf a a^v. -^rri:L:s- j;:n^t::s:°ihr^^» - nntil the fall. A vendee when bt a T """'"' ^^'^-^ ■..T."***"? «", It"-- "•?. *■ «. •«= a f * , ^. cc (y., aj8 , 2 Pam7is on Contracts, 193 n. 'from 01 Bourke' 'July, 18 barge. no necei restore ] boat was the deh'v contract, fraud vit do not p have bee say that : all the c sheathing trausactio ants shoul have beer defendants Now it is ' plaintiff Ji plaintiff's 1 to one poir their letter tiff no inti •ufficiently between ge general agf and only to own made responsible The Coui delivered th a S Bri«;^ship"':^;is t^t2 " ""'V'"'"''^' *° """^ I ^--. c .he was „»od c-,^).^:. " °*' 'T °°™'' '"'™ """igated.-. ■ first noip: ,„ -- - 0..I, „ . ,,„y Boat. She was merely towed [the m'isrepre: ity to accept a all its material rice. (Cites 5 '9.) The con- aud, there was y on Contracts, r. <& W., 352 ; iates the con- J even if the is still bound. 2 Eng. Law d ns on Mercan- on Contracts, MICHAELMAS TERM, 1865. 25 British vessel bill of. sale. hipping, 615; tons register, I one British May, 1864. re is no writ- it. Defend- point of fact he authority ithority to a th his own delivery to the vessel inder water and. is bnlv 3 property. 'from ono port to another. Defendants gave no noti.„ f i4;. ifi?w::r:teici;itrwr''."'',^"''- no necessity of discussing how 11 ? 1 n"'™' "'"' ""» restore her to the condition ofl Tt atbla" T, °™' "''™ '° boat was in IBourke's nns«»«<,; I "°7"'°'"- ^ !'« moment the the delivery wa comnk e R ' "'"' "'"' ""^ ^'''"' "^ P»Pe, contract, however fate "JT"'''*'"'''' '''"'"' " "*'™ frand vitiates a contmct Ztlr'TT""'- ' ''^"'" """ do not provefraud The dl . '''"=1''™"""^ falsely made Lave be'on submitted h rr^'T"' ''T^^ ""-'^ ""t »7 that the plaintiff comm tt'ed Tny tud" b" T'"''." '° all the charges of fraud as t„ M u ""^^ ""P'""" sheathing of fho deck, etc flf sad he 1 "'>'"'• "" ==■""' ""> transaction. The del very b^l at ^ "° ,'"''"'" '" "'» »n.s should have sent back tl e Lt toT™"™'', "'" '"'''"'■ have been different had nl , , , ff ^."'"""""ie. It would [defendants bro^ll t it tlLf T " '" '''^'°'" ^ut the Now it is worth tt lng."VL^Th::M -b '' 'T T' ''"''■ ,plaintiff limited the aulorit o B wk'^T '" °"' '"'" plamtiff's letter to defendants ^. .™™''- ^'"^ ■" "een by to orie point. There wa,n'' ! '"'°™»"»" "»>= confined their leLr of 6t J ^ 864 Z fV" f' """"'^ '"'^^' '" ,tiff no intimation of Vl^ Ll L t'h ''T'^ «'™ '•■« I"»'°- '."fficiently explicit? T| r ;, J '' k'ter of 6th July between general and particul. r "e " '"'ZtT "'""""■°" general agent of nlaintiff i,„t ^°"''^-, ^°'"' 3d to make ■ Youno P t „a ^ .. vigated,- . lorst „oi!; 1 1' "'''■ ''f"! """ '"'"' "^ "'« «»"'• «'"•<' ^ ^1, -y -ea I- -ep;t=^^^^ le 26 POPE V. THE PICTOU STEAMBOAT COMPANT. aa wo , as e„'gi„o ) croUin^'B "f "" """'^ <*">"' ■•^' --' oo engine,; i^aptam Bourke can ffivo vnn oil ;„<• tion respecting it, and I have i..Von I ^ ^ mforma- ho bad powor equal I'w tf 1 1 T" '° ""'' Wareotly, having authority to'se,! ' "''"'"^' '"'''" "' "» «e™' BuIIer. J said .'n Mv * j, . ,, " ^^^^^^ °^ insurance, ii«r,^. said m Fitzherbert v. ifa^Aer, 1 T R Ifi • « tk« u theplaintiffbeiunocentyetifhebuildhV- r i- ^"^^ of his ap-pnf or,^ I • , '" ^'^ information on that acts o? the a^ent ^^^PZ X^^T^^^L ';'''''' ^ matter wiilaTsobTndhi^rr'"' '"'P^^^'"^ *^« «"bject tuting pa t oTthe m aZ'J''"'fT '''' ^'"*« '''^'' ^"^ «-«ti- i?. 14 • and Ful. i ; ^''Pla'ned in 32 Fng. Law <& Eq., throw; on thf ru L"- ^l 'S' ' ^^ ^•' ''' "^'"^ ^^^^ -' . ''"^--'^"^^-"""aoove propositions untouched. Then [there be land misr evidence contract we woult of docisi( 'sample w sale note decision r ^on, 4 Tai [that the s! condition Gibbs, J., jreduce the Ibound, unl "Theplair witli all fai gerous to ( there is si 'none." St lease, and tl [efTectof fn >ften been ; 1452. And ecisions wi eferring to 'hdley, 9 Li comprehensi "Iconside [thing. * # [breaking do getting rid< [technical rul the success c [law of Englai [is more uiiiv [against tho r imoment it is fPANY. le secretary of (that is, vessel ou all informa- ws respecting ke something ression being 3. In his evi- se Bourke to the boat. I luired in my igent only to of water, etc. the details." ippear to the He was " to , apparently, rof an agent MICHAELMAS TERM, 1865. 27 " the maxim of his agent uity." The mties given >., 555, etc. ; f insurance, : "Though tion on that resentation, xcheq. 540, nt is guilty e principal Where the s case the •epresenta- 10 subject ind consti- f Corn/oot aw <& Eq., loubt was uer Cham- ntouched. The next position taken bv the nlainflff'o « i there being here a complete con act "etld '""'v ""V^^' and misrepresentation could Te her h' . , Z'''*'"^' ^"'^"^ evidence to defeat it liiVll J \ "^^T^^^ °^'' g'^«» '*» Icontract could no! be d^lJ:,^ ^g^ ^^ T' ' we would readily have assented to it Th.. P''l"^'^«°««' of decision in Meyer v. ^JI Vein oo T *^' ^''"""^ Isample was souglj; to bSp t^^^;^^;^- j^ -[^ l>y sale note being silent as to it it . contract, the :deoisio„ reliecfon at tbe a^gle -Th 'tf;""/ ^'^ "' «>» kw, 4 Taunt 77q Th °,^^'^^^^^^P^ohertngy.Dow. b.; thX'an I ito™ :i' ilif r'''''-\''' "■« ''^™--' ^condition they then ay a ,d tl.L "'"' "" '''"■""■ '" *''« iQibbs, J., says . " Tl^7' ' "■"' "" '^'''™'='' °' '"""I- Ibound, unless son,e fraud tfbo fh' ™ - n' '^ T '" '^ rTho riljimf.-ff nTf • ' snown. Chambre, J., said • WU a t!' mereThet""' '''"T '" ""^'"'-"■^ «'^ none." Strike th^ r.i. or i.aw will interfere-here I see ""«. otrike the pleas and evidence of fraud n.,f ^f fi • Uenbeef::vi:e '^rSt iMhtf "%"' ""'""^ ""' ^fe„i„g toaj:d;i7Kp'.i.ir;:te^ °' 3arfW 9 Law Times Tiar. oqq , "V ^^''ock m /?ogrer« v. kon.prahensive lid eloje'^t ' """"' "P"^"™ *" ""^ "' ""- Ung do„r2„:t~f rrsr " ^"^ ^"'"' °^ gettiug rid of every grounZofni.rv^/™''^ ■""'""' kh„ioal rule or diffiou tv of anv kTd oTn'teTf "' """« "° kainst tho r«no.^ ;. f.'..!*""^!"*^.*'^'»*7ou cannot aver Nment it is aVcertalntl ""."^r """'" ''""^ '' ^^^^^°- The I 18 ascertained that a matter is founded on fraud 28 POPE .. THE PICTOU STEAMBOAT COMPANY repudiate it;' but ho ca 1 If." T"" *^ ^^^^' '^ ^''l one time sa^', ' I vv'll ad nt it"^ "^ w, ""^ ^'^^^'-''^ ^'-^""^^ ^^ ^^^^^^'t^::^^ ! -^y - -" ^ite two case, 3 Co. Lp^Z^^t '""""?■"• '" ^^^^-'^ iraud and covin tl a al ao ' ^'^^"T^" ''^^' ^°"^ «^^ ^^hor which of then, Ives . e iu^t" T n l"?'"'^' '^ ''''''^^'^' ^-^^ fraud and deceit .e in k ^7/"''^^' ^^'"^ ™'-«^ with ^'--of^i-riC.r^^^^^^^^^^^ -"^^n says: " Covin may be where the Hf 1 J ^"""tngne, C. J, not giyo benefit to In^r Z ? '' ^'"'^' ""^' '^'^ *'^'« «'^^H the mixture of the '2 nd H t^' .^' ""T ^'^''^ ^^^^'" ' ^-• the truth is obscured bv he T ^^ T'^'^' '^'' ''^'^' ^ad, in the vice." ^ ' ^^^Isehood, and the virtue drowned in th- ^ir;r ^ii^: ''-^ r -^ '*^"^' •- p-^ ^^^o, fraudulent, InU me e LJ^^^^^ t' ^'^''^ -- -* a vendor, not calculated tfdl-^' "' "'" ^'™'""^ '' the defendants. " w! ''' T^ T'"^'' ^'^ "°* ^^«^-e tude allowed in the maki ^^"^/'""^^ ^ considerable lati- tradeisnotexU^rt J.f \^^''"- ^he morality of t™es trenches on "^^^^^^^^^^ some- permits phrases to b used t Z fu''""''''' '^^^ ''- n^iu'n of the article on sale i d '"' T' ''^'^^ ''''''^ '^''■ h-mits what may be cal led th^ 1 " '''''"'" ^'*^''" ""^''^^ or the shops,^itX^f ;^^^^^^^^^^^^^ Jn--lf, but there is a point' ^T^^^^^^^^ 1^ /« ^^^-1 of in^tiee and hon;:; t^ L^^ ^ ^if ttt Pa^ '"'^ s^^::r;;rrr'r"' ^-sthet^.^:::: 461, heV: '' If the se ler f"''" "" '^^"*"^*«' -'• ^' P' produce the sale b^ Lit ^f fat" "'"^' '^ "°^ ^''^"*' ^"' rnle of caveat en.ZlTl[ ^'^'' ^^Presentations, then the "^"" "•-■"= ""'' apply, and the seller ia answer- able fo I purchai warrant than sil buyer a ranty, oi becomes The sel] must no Apply be a dou the jury Then i for the ( had take And here The defe plaintiff's some oth( and inepe arisen chi its effect i where a b empowers receive di received w and effect ery were i Conimentai neutal SUii So also deli to abide th complete d held by the 175, where Hamburg h Thf* only an in this case the contract fraud perpet MPANY. bond, be it an 18 soon as fraud ises, a contract tosay, 'I will — lie cannot at le has dono so, I MICHAELMAS TERM, 1866. 29 3 well cite two In Fermor's doth 80 abhor )therwi8o, and >g mixed with f"l-" And in ntngue, C, J., t'le title shall lie covin ; for le whole bad, 'tue drowned point of fact, te were not permitted to not deceive derable lati- morality of •; and some. The law )lored enco- thin narrow nting house r to befool 'aley in his 'igned con- )viou8 rule )r. Parsons iction with vol. 1, p. silent, but , then the is anawer- I able for the ft-aud. * * TTn i warranty. Ho may bo silont, and be ,17 b 't » , ?'"" " i-n -lent; if by acts, and oortainly ■ tword, bf, /^ buyer astray, nducino- him f^ , ^^^^^^' ''O leads the ranty.orotlfo .w,'eTr?v ™i ,. 7''°'° ""■"''" ^"^'^ "'"' -"- bocomos a fraud of ~ f, r^wiuir""" "' ''"'"'"'' ""» The seller mav lof *i u ' ^^^^ cognizance. * * the jury in tbeir JLZ ZZT""' """'""'' '° ^"''"y Then it was »aid thaf it ^^T , ' ,! J?™'™'*''"''^ ' for tbo defendants wore bold bvLV.r', ??" "» -""' aa taken throng,, Bonrko a" thei ,1 "at S ''" ''"' And liore s, no donbt on„ „f ,i ?„' ' Summorsido. Tl,o defondlnts 0™^™^ Ld In -"""J^ ""'" '" "" ^"^- Plaintifl-s agent a, tllown n t™:"';'™' '1^'""'"' "'« some otiior person in th„,v ' ! "" "'^ "'emselves, or and inspooti^ ti:r';„tirTo^':r *f j",'''^ ^^'''»'' arisen chieflv out of the dnr.fri„„ 7 f ^ delivery Jiavo its effect upon the Sta „te o/p Id, ^'T'" '" '""«'"' »" wliere a bn ver sends his seL ? ° " "° ''™'" «l>at empowers any tZ ZIZuLT T f""' '"" ""''■ "' received w I be con«»i-fl«,.«^ ir *^ ' "° delivery so «.d effect a oonip^ t:i'':ft:x::.:'-r i.t -V. nental States '„„di 'has nov. T '"' °' ""' "^ ''" ^onti- So also dehvory to a tod person fc",";'"'.™;" '" ^"e"""^- to abide the buyer^s dorsTr,, < r'"^""^ ""'W-d -^ete deii jy L 1^^: s^r :7:u?r ■"^^ir '^ ' Hamburg house was helf r i transhipment to a 6 uuuao was fteJd to have comoletpr] th^ i v Th" only answer, as X think, that can beXen to ^h- ' ■•""'^' itnrt^rL-:itfr-^"'^^^^^^ ^-a perpetrated by Bourke:i.l ^^^re^ri^X^ "•'•* 80 POPE .. THE PICTOO STEAMBOAT COMPANY The:!,' ■• ": tro,L:°x :"?, ■" ""■"'i""' »"" '-'™"-' wl'0.0 it has not Zh , , ";''"=" *•"' ^"^ I""<1. ""1 tho vendco can exeroi .h^ " t fM.'"' ':, "''" ""'''■ "..ly where thoro has been a c™, ,1 .r''"^ "'" '""P""''^' i^ing tho return or tho ;,!„/ T ■ '" "'° """^"""^ """">■■■ ■.as ' hereh, col; td o r/s Mlr:'?'^ T' ".'" °"'"" guilty of a fraud which destroy tLr., ^ ."'''■ ' "' '""' ^''" adds in another pasaa™ t It i. ""' .f"'™"' altogether. He l>o most sue oZ th! ° " 1° ™"'''"' <^''""<" ^-escnrf breach of ZTtv Ivbr"''' ' "'"^ '^'"^'^ *■»' "'« P™»' «.« ^-ges. So u'&r^T; -^r z ■■ arj't^rth"' abroad, ho must make hi Vl „n • ' '"' '° "' -le'tination the defect: or a leal^itl ""^^ "'stantly on discovering tbe question of dorl "Te t"; °"^-=^«<'"«''le delay. l' coverv of the fat fl ' h" ''^ "'°''°"°<' ''™'» «■« J'- "palpable, whet a jT'''!/'r "' ''""^'-^ "'""' " -nt,."' To 'the :r'et; r^'^ir ^ tr7 "^^ case of J/a«„„ v. Bovet, I Denio 60 'if ' ^' ""'"^f "'« into a contract by the fraud of ,1 1 " P"*^ ''*' »"'*"'' discovering the f™ d a7„?tL elrl ej "T' "'' ™^' °" contract and recover „.1,„. t f " """"o- ''«»"!"<' the to do whatever oTn ,11 "" ^ '"'' '"'"'»«<'' o" offcri-g his former cond t on ' aT'/ "• 'T "" """'^ P""^ '» goods are discoveeS' not! ^'"' f ^ ^™'' ««»• " Wben or to be unsound u,e IV^ "'""'" . '"'^'" ^'^en for them, them to the vendo or ler" ""Z" ™'""'''»"='y to rotura thereby rescind h'conrato'rtrn'r'"' '"'" '»''' '"«' esoe in the quality of t "l^d" ,' In • ^11,""""* """"'•"•• -<<.*a,«,whefethep;fr;h.dLSf,::£i=] to take I aid the d 'as held ; »ack the d *arke B. a 'as of val een depri The Ami knderaon, ound to b lad sold al •emairider. eceived. ihould hav( lale as a nui lideration." So in Pen epresentatii lor offered i lonths. He lot avoid wi( lannot rescii ionsideration From thes ere justitiec ■'gbt in repm 'MPANY. safTirm tho con MICHAELMAS TERM. 1866. all on this argn. e limitations by *nd restrained ^>een paid, and vhero the pur. h, tho chattel, ^d., 462, Lord jpecific chattel as been paid, the property, ntract author ick tlio chattel , or has been •ogetlier. He annot rescind the price, the mitigation of ^50. "If the tv, or inspect '8 destination > discovering e delay. In Tom the dia- ry where it !oming appa- », citing the has entered ho may, on rescind the on oifering or party to 50, " When n for them, y to return « back, and id to acqui- Fleming, 1 31 to take shares in a sunnoped Im',,* c* u i,- . .lo»It »ith tl,om in ordT.0 jr im » "'"'"« C"n.p»..y, but «. l™ learned tl.atr.rpo: ; Xr, '"' ""> P"^"' ^o »oon ^ught to have made ZZ^T t " '"■'"='""='' "" '"■«" •>« .looted to treat the , "Laction ''"^ "' "'° '■™'«' ''» ''"I , ight o, reseindin/it r " '" 1"""^^'' ■"'" '""■ '"»' '"» 1.0 whole tranJtion. Thim^, '7° "f *" ^"''"'«''"> ilamtiff could not re^jpinrl fL 1 . ' ^'^' *^®'"o the The partie, co,.d^:rthe,:te ^ ,:f/;:,^'r '"" "'""'»• Jon in which thov or;.,i„nii ! . " ™ '"""' '""»• .nlered into. ^ ^'"""^ "'^^ ''"'''™ «•« """traet was So 'tt Jlluc&bum v. Smith, 2 ExcU 7«n i »id the deposit on a purchMe oftnd a'ld "l "'" "'"'"""■' m held that they could not ,.. • .,' "^ Poisosaion, it .ack the depositZ Z na ,t. ,"• "'°, '""'""^' '""' -'=<'>'" •aa ot value to them or not »t In "'"'"'"f'' "'^""PaUon .en deprived of then:: oi^ulilT"" ""' "^f™''-' has round to be of „rva nt a'rwhoCrfirr"'"'"^' "p""' ""» ladsold abont thirty of th« ™ t ^ J ? "'' "'^^ P'»'»"ff -ainder. Held t2, he 1 J tl Z' ,■" '"" "'"""''' ""« ■eooived. Per Curiam I r". , "'"'" """'y ''»<' ""^ ihould have been 42red 'f H 7"''"'^°"'^™'"°.'""! "loaaanumty.and Trnand L ° '' "''"^ """'<• ''»' ""> lideration." '"' """""y »« P"''' "itl'out oon- So in Perfcy y. Jialc/, 23 p:.K os» . ■epresentation.whioh thn Lf T' 7, " " "''<' »°^«'' "nis- .or offered to ^I tu k ; t'i T"'"' ""'"''' '•"'"'""• ■onths. He had given a S/ 1 •'""""■<' '''"• ''«''«™1 .ot avoid Without re' uninVtt or /JrT' "''"V" "'""' .annot rescind the eontracVand yet'Tl,!^^:"""^ "^''^ P"''-^ ionsideration." ^ '" *">' Portion of the -^u,ttd^::sSi' ir'T^ *"" "•» ^^f™--" u-^L. .. "'"/epuaiatmgtho contract. »n/i fk„* *i.- ,., "•^ 32 POPE .,. THE PICTOD STEAMBOAT COMPANr. possession „f ,!,„ boat, Tl.o ouly quostion that remains i were , hey bo„„,l to rotnrn it, and if the von.lor nolo "d refused to recene it back, wero ti.ey bound to take the "a. reas<,„al,Io caro of it, as .,f „,eir own property under ikoc cu„,stanco»? Neither of these point , a it seems to l' -•• -oet, 319, lay, do,vn .,„ 1:,„,""' ^'v'" '"» ^^ »/ ««'-. 318- tlie sale „,n,t ..curn ti.e d m, , " "'''° "'"■''' ■•««<='"<» case of a bread of vaf ft 'V" '■°"''"""'''" "■"■°- A"'> '" wln-ch .l,e purchaser ZTll' ." '"■■''°""'''° "■"■»■ ^'"-i" » ^'e" 'o ro- the use „;r:'^,;":/;r ■'»<" «- '-„ ^''"T""' »" "g'"^ dorived from If ntensila "°'' """"o' """rwards rescind the contract. * . tha r „„t 'vli''" '"''"''' "- "« «-" would remain at his risk " tot: ";3 ^etsTto' t;"""""' "'f ''""""""" «---'- »nt of t1,e deeep^;„ ^^JZ'", 'T^' "^"^ P''''""^- 'S""- honestly, I ha^ , Ca d b'tl 'h "I r'"'/"" """''"« Suramerside, according to l.i . "^ """'« ^^^'"^^ »' the letters ti.at obltd him otet ^^ t'hf "^ ' '''' """■''"^ '" the bargo into a steamer ?. . P * °"«'"° ""^ """"er' injured on he pHTo I Oh T r'"'''*'''^' •"" »«"''»='ly. understand why ho reTJ.,?"*"""' *'"' ^ O"" »«»-'y d:-. .. "J^ "" refused to have anvUiin™. t„ J. ......1. I '. ' .«.«. iiut ho would «n„»ii„ t.... •.:.;■ '^ ;■ . "" """ ■""■ " --t ho would equally have ;e,us:d to JoXrh:; M POPE ... THE PICTOU STEAMBOAT COMPANV. p.ly, a. I tinnk 1,0 ha, mistaken Uh p<,8iti„n_b„,„g JL «nacq,,a,„ tod ,v,t|, t,,o roprese„t,Uio„» of Bourko, „„,1 L „ v , legal l,ab,hty for them. H„ „a, within a feu- „„r ' "ai o P-ctou and four months of open navigation remaited H aeknowledges that immediace.y npon the arrival of the hoa a P.etou he received defendants' letter of Cth July Jon plannng o Bourke's representations, and refusing ,o Vc Z the boat at any pnee, explaining also that B.-ul-s "trol assurances had niduced the., not to send over a pe™™ to .nspeot hor. The defendants' letter, of same date, t! B nrke .nforms h.m hat the defendants decline taking any charge of he boat as she then lay. The plaintifl' thcrefore'ac e, wi° full knowledge, or full means of knowledge , he made hi etc tion to :„s.st on the sale and delivery, and t^ abandon boat and e„gn,e to the eare, or to the neglect, of the defendrt fflust confess that on one or two of the points in this case - wb.oh are now to us at ah events, whatever they may be else- where,-my m.nd has fluctuatod more than once B^t forte reasons I have given so much at large, I think that the hw w th he defendants, and, therefore, that the rule for -. Te v trial should be discharged. JOHN.,TON, E, J. This «se is markod by lines so defined a, is n^tl ItTs"nT"'''°" "■"' °'""' P"^"'- ™^'""- this naure. It ,8 not necessary to examine the extent of Bourke's authonty to make representation, concerning tl^e vessel, as ,»c,de„t to his power to sell; because the plLfiff havng referred the defendants to him for information, ht was an express, and not implied authority only A »in .) If ! and the Bnding of the jury establish a cas'e of ffrduttt representation, which leaves no room for disens on „i^ Z distinction between legal and moral fraud, and relieves frl the necessity of examining the law in oases of siml IZ ranty, or representations made without intention to dece vl The aw also no less than the facts, is clear on the main principles applicable to this case. That fraud vitiat a co Taunton, 4, the language of the Court is. "A mJ ..Tj, f rncovei niay, 2 fis '' (le change of Lord ■*' Certdi ed by fV Equal tho fraiH authority (Jornfoot held not ings, Pari one ompl though tl] a fraud '\\\ principal Q. B. 68, Exch. Kof says (p. ^ adopts tho ' i adopt y( I do not ad |defeasil)Ie.' We are r |of the Jud, troyod by 'onditionall; 'f the contrf 'ay V. Mann "It is true [void, but 01 loinent tho [recoverable [epeaks of th( The cases, escind raay 1 tct or by his In enquirin nts to rescin PA NY. •side. Uijliaj) — boinp^ alike ?, and his own liours' sail of emained. He ivl of tlio boat 'li July, coni- ng to accept irko'H strong A person to e, to JJourke, ny charge of e acted with lade his elec- hn boat and f'endanta. I this case, — may bo olse- But for the t the law is e for r* new MlClTAEL\f AS TERM. 1866. ' defined as inquiries of extent of erning the be plaintiff on, his was I, the facts lulent rais- on on the ieves from mple war. leceive. the main tes a con- isgrave, 2 in cannot 3S change Co. v. Drew, 32 K,,,- u„ * P„ « . ^"''"""^ ^'^ tl.« fraud of .„• t;,w ;,:":; r'^ ".o Principal i» liable f„, Cor./oot V. Fowkc, G M Iw Z i ^" "'" ""'«' ™»« »< hold not a„»w„ral,lo i„ o.'.nso Lno!,' !f "• "'? """"'P^' «'«» ings, Parke Ji. „„ys (,, 3731 "n * """"''" ''" "'" P'™* one employ an agon 't'„ mak„ „ ""'? <'«"<="- 26th Mav ISfti ', ^"°'"f fe^'^onto the defendant's letter of justify only 1,13 reception of a boat of tl,,, M,„ / the condition, lie had represento, and 1, ; ' irdT; "'1 T ad agreed to p.ircliase. Tlii. Uto. ql ! i! „ 'w^ttu: If tho case turned on these questions, a new trial mi^l.f 1, ■necessary for obtaining the opinion of' the "^r 1„ 1 Ln bnt, as from the view 1 tuko of this case in o he'r Ipec, u' flee, on cannot be altered by any ,„„de in which the nuost'io of delivery might be determined, it is not n-c,.,....., and I abstain tro™ giving, an opinion inb,"-;*;^^,: f^' Assunoing that tlio vessel, with the machinery laid below comee wrthm the meaning of the defendants' letter and al' suming that the defendants must be held to the act of Bonrt in receiving delivery of the vessel in ttS ! , ^° theplaintilaoes „o't appeaJTlIav 1 ^^i "StV' appointment, we have to consider the effect of tha'T on the defendants- right to rescind. '^"'"'"•^ Up to the moment that the defoncSnts wnra ,>,.j :^tt^:l:dtd''''^^'~^°'V"^-""^«'-^^^^^^ tiL f .1 ^ ' <=°"»'^1''«""y ought to be under the protec tion of the law provided against such frauds. To give Thlt a ngh to rescind, and to withdraw that rig! t before the! vrct^uTofturrrutt :;it:;:! r. r -■"■ 8on«ble, although the de iverr had hopr ^7 \ ') """"^ a«ent, or to 'He^aefendants^pttr ;arfC;rr:: not to ] of the 1 tliat, fr( Hfructiv rn^( >np, ind " To cor act of tf Nor cr before re selves 01 might kn of her. pJeep, and nation tha will bo re misrepresi referred. And to 1 tiff are enl vessel — if ^ictou, the may say to ceived at trusted to Itiou, made 1 ^e purchasi Ih'eving in tl [to us, are yc lyour agent's [and justice, The autho 'to make the i 1%, 1 Ad. A md learned t ought to havt \^^, the langui meto the/rai 'repudiated th m Court was tlio qnofltion oi ; arid it might 1 authority t„ receiving of a tin-boat hiid in idonco to war- int's letter of ■hethor, under Joivo delivery irke, 80 a3 to •ucter, and in 10 def ndants I not without i^hich Bourke gent of the orputrator of MlCnAELMAS TERM. 1865. not ial might bo upon thera ; respects, its the question (ary to give, of the case, laid below, ter, and as- t of Bourke lasmuch as thera in his at delivery 3 acquaint- occasioned the protec- give them 3foro they ould seem Q the pre- ^)) unrea- I innocent hetlicr or In Hanlmmi v. Sdlkouse, OM.&Wmn M, m, .ndoe,l, ;„ relation ,o a somowL !?'/""" "' ' "P"""^" act of t(,„ will. Eve V rocrn "'"''"'"^"""> "'^'e must be «„ , Nor cnn the V^.l.tS IZZ Z T rT''^'" boforo roceivinR the vos,ort. „ '""f"'"'^"'' "ere bo„„rt, salve, or thJ.el27!'l"vr"T:' '""""^'" 'V 'Lorn- ".igLtknowwhetlL hecar'T'.K' "'" '"''"• """ '"°r of l.or. The „„s„er ! Tn7" "'," ,'••••?'•''»'•■»'»"""» made "oep. and threw the defe'„,t t "fft T ?"' "•'''"'"' *" naCon that prudence otherwise ,nLh T"" "'"' """•''• will be remembered, is one of the e '''"'"""'• '^'''''' " n..;ropre.e„tation,, to w",io td^er^Cr ,"' '™"''"^"' referred. ^°^ '^S'^'" arnl again have ^ti/r'e'nrneTfr;:^':" '7- ""'»"«^ <"• «- Plain ves,el-if she was tVbe re „ ^ *"«' """'"^ ^"J""'"''' "- Tictou, the answer is still t^! /"'""""•"'''''' "'»'°^d of ""y say to .he pla t ff ZrT~r'; '''"' ''«f'""'""ta !«ived at SummersKle and?r„„' ht : p"/""^' '° ''" - trusted to your ropresenta i,™ of ,er" e^ "' '"°''"™ ""> tiou,madebvvouraDt)oinf,.Ho I ■ '^'"'"'"or and condi. wo purchased; and T t las,"" ' ""' "" "'" '»''"' "' -h-h ieving in the truthfL;, of t ,' ""' '"P""'' "» '- b- to us, are ,j„ur representatioL You7;:""''"°":' "'"•°''' ■» your agent's misconduct for whiT '""' "^ """ "■«'"" "f M justice, be answer:ble to yl;, . ' ""' ""' "''"'"■'' ■■" '^ "lo authorities in supnort of ' ■ fo mate the selection the on I v ,„„<,,■ "°'%'""^ '" ""'""''""t as K 1 Ad. * Rlli,, 41, titt ■ r ""• '" '''™^«^- ^'»^ MWn^rfthatanimp t tntdb'"'''^ ''^''''■'''"^''•''^':^ ought to have made a sta d - x„ \T ^"""''"'^ ™ ^'"'- >« k the language of Lord Inger C T" ^^T ' ■''• * ^• fa«„ ttc/™«rf he should hive d ;■ ^' """' '" *« I-pudiated the contract" TrL'^^:"':!-''.."'o_ work and r court was that the Pureliaserof ^ r^^ireirr;,;' 3S POPE V. THB PIOTOP STEAMBOAT eOMPAWr. pe.ty lad become vested in Id™, ceuld not b; hi, own a^ revest tl.e property in the seller, on the ground '„, tot»lI"l, .^ of the consideration. I!„t certain exceplions were mad ft^m o. said (p. 540), that ho instructed tlio iurv in fonfnrm.-f w,tht olawin ,>reet.. JUa,, and the CoZ' ZZTZ aside the verdict. There the money had been paid and the horse delivered and kept by the purchaser for soml til and hen retnrned for breach of warranty. The jury wo"o to d that ,f the contract of sale was made under circun^^tances araottutvng to fraud, the agent of the seller was iiSd In -tmg upon the purchaser's right to rescind, and rertg'hi: tJir/rV™' '^f™'™ ""^ ''"'^"'■»» oonolnsively, and the fiist has been spoken of as a well considered case Tb„ o„« sett ed the general rule, the other was de Id olan « caption to that rule, being the same in principle as lilt Z have under consideration. P"nc,pie as that we There are cases in which, as in Street v m„„ .1 .^:::^"r:-:dZpr„rth:;"'^;cr J^nsider it as generally correct 'tot^^h:; it s' nlfun^uZ There does not appear to bo any determinate rule as to the t™e when this decision must be made; and we find 1^ t! c»ses various intervals of days, weeks, 'and m nth ,be"v t. e delivery and rescinding, without objection to the delav ; 514 where a metal vat was sold, delivered and 1 „t nTt'ha'vtIr'' """""f '" ""'^"- '" "^y ".« -ietdaC «: mr;:i":!" •"=!'■"'"»'• "■ ?"«"-! "y letter to pay. Oa — m.„„.,on „„ vat was ascertained to be unsound. ' In .0 MICHAELMAS TERM. 1866. • gj thcght deceit had been ^raSed ' ''"''"*"'' " "'"^ anXrerZlr;;';;^-'^^"?/''- ""' 0-'ose,w,-th J/n -^^f™"-" -«»ve.t;c;-z;::— -:-^-;;^^^ 40 * * rOPE «, THE ncTOU STEAMBOAT COMl-ANr. by the latter. "'' '" "'" '"--•■"•'""'"tatio,,, mad„ tl.o objection. TU, TC?, """"" '"" "'"""'-»» ■" on then, «„ expo it .'""^T"."'''''- ^^''•^- ""!"'«• If the .lo.on.Z,:l';™: •'■"-"'""» "'■''"'■""^'"«' tiff for tl,o e=,„o.,-„ _ i ! 'f"""" '"""• '"' "'" I''"'"- in ti.o di-po«,ie,::ri„'ro!:',: z'::^'"--' •"" -^ -"- of n.aki.,g .„e ri^. i:::::^ x;:Et:,''"'' ;'"■'■"" V'"" subject of tho ontruct T|,„r„ " ■■"'""' "^ ""> wofi„d,«ccorted, «,„.„„„, „,„ .,;' : ; • '^; 7' -» ""o-od m «ome c«,„, i, e„„|d not bo JumLi ' '"""'""' ^ off^t:::r:;::;t::,t:t'■™''Trr' ■""^■••'« -'■•-•■■- «»d receive it, tlu. ; li I i» Wd " , " "'" '"''"""•■ "• o-mo mit to take Ibo prooor ■ ) ''" ""'"I"'")- "'"""t m,\u «-ons are a.ig„ed. l,l„„ i-I Jt ..''t:::^ ' "'"' "'- ^, tr;r;:tr;tr„ i-r ---"::.:::• thircVi';.:t:!x^ oonveya tbe clearest intimutiouTf .!,.., 1 °"" throogbo,,. the contract ,vae annulled an 1 '^" ''"""■• "-' """ »»' -rd absolntel, bonnd Sljlttlr'r: "'"" "•""^"'-■ tUen as though it had nol bee, !!.":., ^'""'' ™"'™«' -va. party aione had Dor)D, J flovonil of In tlio lirn the piiitiefi tuto, parol diet, varv, tlio rojocti reduced to presenttttio contract; li Jioscoe in i in general, tJier it be proved by vided tho pi cites Doe. d authority. ; plaintiff, -12 point, Htill L( Court says (j action of doc( the thing soh the buyer ha if he do 80 in IPANV. vessel, on tlio >ntutioi)8 rnado >t Buflicioiit,— •«<>', or at JouHt fouinJiioMs in ^Vliy iinpoHi' uij(lort)ikii)^? on tlio jjluiii- luvo IiikJ,— to ulsu : hotter (•oijvonioiioo tlio Eiigli.sli l>riMg nio to casus — :vs I ""just, that 'turn of the " wliioh tlio i-opor; and fH of liorsoH * expunsivo 't; 1)11 1 wo 'US allowod rotnrneii: MICHAELMAS TKRM. 1865. ^j .u.hority „„r r„q„„,t to ,«b„ , ,, '■ ,,"" ,"!""''"' ■"""""■ did «,„„„„.„„?,„«,, :„';■..,:; :;::;',:;• ;-'"';••» anil positioii, unci tlioru worn u I . , f 'mMiUoB during »un.,;or w„„t :,;7;r t 1 ,t I " "T" '>' I ^'■"'•"'owmforunowtrmlouL'l.t Jtliinl- fni r i ""fciM, I mniK, to bo utaohargod. mice ? I i'oughont timt act loncofbr- ract was one Imd '"ti.o ,!„t' pi..:i,' JSz".,:'":"'"'' ""'^™""'^'- t«te p„r„l Z'eo Z,Hd ,»r T'"'*-' '" """"^^ "'" ""^ die, varv, „r ,.,1, „ t Iwri " """ '••'""""' '" -""^- proBontution 1, «,o'i ,1^ ° '."r '^°?' ""'•" '"•■■""'' "•• '"i»r.. contract; J di '?"•"■ "'° '""'^' '" ™'- """ "■» i» general, I,^ ..Sfi,/ ' """"",'■' "^-^ ''-".V- 'l-t, tlier it bo fmud ft. '" '''""'™„l „„ instrument, ,»l,o. prove,! by pa "' 1,1?"^'' ""'"■ "'°«"''''y' "'«" ™''y ke autliority 1,. „„„ „f ,1 • .•* ^"- * ^"'". «-19, for big point, , ill liTkh^lT ? "r'.'^'^'^-'off uponanotber aoti„„„/uoee f if ,„ f f "" ? ""1»™"<""'''ly liable to an tl.e bnyer l,a« „„t .„;..'_!""" ■■:.!".«<>"'« P»rfcnlur«, wbieh if lie do so in ,ur^b » „'"' '"""" """ "'""'«"' "' ki'omng; or m ,ucb a nianner as to induce the buyer to fotboar 42 POPE .. THE PICTOU STEAMBOAT COMPANY. I' to bo other hJ,'* 2? quality of the nrticlo sold to forbear raaWm! .^ " 7^"^= •"" '"> ''''^"'''^'i "i» and advantal ! ' ?"""{' "''"='"■ ^"^ """'• "^ '^"curitv applicable to any action who-e ZTr \ P' ''"'' '^"'"^ and the anthoritL are nlero„l tLT . '"1 '' ' '^'^"^^' ation are a good defence n auction ikTth "^'^^^"P--"^^- C. J., in Flinht V 7?o„/A 1 R 7 , '''' *'''' P''^«^"f- Tindai, i.Aiili ^ ^--liooth, 1 Bingham's New Caqoa Q7^ "All the cases concur in thf^. tj-.f , '^"^ ,^^«^8' 3'6, says: wilful or designed it al 7^ f .""'' '^' misstatement is !-,"«-*', It amounts to fraud* n.nH ci^.i. f„ i gene,-: principle, of la,v wni,!. ,l ' . '^^'""'' "P"" Here the ii,rv h.,v.. f "' ' ""e contract altogether." and de. g 7 o™ Z,, n "" "'"^""— '» "ere false opinion of T ,dal C J ■ "^ '" ?"'™*' "S^-"'"'''/ *» the «ame aide Wear; to t .V" ^'."'"'«^ ^"«» <=''«' o" the of being in i,?r,„'^ "l tCVS^ "'7'"'"j"'' '"^'^"^ 190. It was th.r» A I J , **^ "■ '^"tada, 1 Camp, brought jrth'lf^'fV";' "'r" "■' '"^"''° '- "-» and fhe puchrr doe/fr l',':""'':' " r''''"'"'"'' P"«' reduce .1.0 damage? obieo' t'T '" r' "'" '""'■°" °^ '» allow, the seller tf recover 1 verdfctrtr "/.'"^ .^-O^' >>„. npon, he cannot afterward, m,?, "" P""" "«'•■'«'' ground of the good, bein! of I H V""^ '"="''"'''" "" pnrpose for whfch 'tl; fre „ d J"' if r' """','" "■' law, then the defondnntl !,« .f"'™- If this case be still tbey have by defend n.th'' , "' ""' '"^"P"''' '^o course We, would be excludfd f " ""' "f™ "■« ^■■''"nds they redress, and wldd t l^T Z aTf t "f ""'"'"'■"^ apon them bv franri n»^ • ^ ^° *'"*'<^'e imposed (ectly „se7es ^^1.0 o„;r"r"'".'*"""' """ "■"■«" '^Pe'- therefore, „„ ofl L"^ ,r 'T "''J'^'' " ™' "^''e'cd. I. tbi- case! for 'ZTJ^T^^X :r '''''''' '^ ■T-which the contract was founded '"'*'^''P^»'''»'ati„n Uefore referrino- ♦« ^*i.-_ .i • .. " ° ^■■'"^^"' ""jeciioMs against the verdict, I Vaughan J. MICfUEUMAS TERM, 1865. 43 Iwill ,li»po,e of .point taken by the counsel for l!.o dofend«„te T ey on ondo,l ,|,„t the contract was not complete by the etter to he plo.ntilf, agent of the 26th May that the Stat, ,! re ectthoir offer; and, ,f they are correct in that respect then 01 action. B„t ,t appears to me the letter contains everything necessary ,„ sa ,sfy the Statute, and when the /„„ wa deHv ' ered by the planitilT to the agent of the ,lofe„da„ts he eon estabJishcd through the medium of letters «„d .en,.,H.t» wr,tn,g.,, provided they refer to each other and to t « s^m" :1s t r : t;r;^'t™4trM'^°'^^ "• "^ ""■'• ''™- goiuK on bet ve M, M „ ?' " """"^Po^l^'ee had been purcLse of Z f '"""""' ■•^'I">'^'"'S the sale and ef . 'w L""'° '"•"^''-'-""" iMhe /«<,,_and the letter 01 to .bth was an acceptance of the offer of the niaintiff mentronnii!; the nrice nnrl i„i,„„ .1 . piajntill ered andfl,., «>"1 "hen the steamer was to be deliv. ta V .^ il if . ■■ """ '■«""'' '•>■ ""^ <='"""»»" a„,l secre olaLa „t '"'"'•''"'°"""'^' '■"^■""^ ™ -count of the company, and no <,uest,on was made, either at the trial or the argumon , respecting the authority of those person to negotiate and make the contract for tlie eomnauv 17 h!t the Statute requires has here been comp ed w tb at^ it ia -e L not sigi-ii'd' r -^trr zr:::r '::;: U^'fl'r ,, ""' '■"''' '" '^''«'' ^- -S*"", 3 Taunton 169, and La^t/warp v. Brjrani, 2 Bing. N C 73? .^1. contract is sufficiently authenticated if't has bee, Log i ed m riting by the party sued upon it, and that it is no obfectLn tH:":L-,',t"L'.''V™'' -"'-t «6-nst the plaintiff because v" -■, "" "" """»■■ *"S"«I it. In the case last cited Vaughan J., refers to what was said by Sir J. i^lfiM^ 44 m POPE .. THE PICTOU STEAMBOAT COMPANT. signed by „„„ ,„ rty wou d 1 f . '" «1""^ « <=o>>t™ct that it wa. difl-o're„t in W and °''.^' ""'' " "»» »»' ^'^-^ "nd thero is notw',; r. , " ""^ r''""-" »"•«»" of authority of tl.o S.a,„.„ tfa™ -Nr' •'"'• /""^''"^ "' "^ -"'d'' t>.o agreement' ponw.iehtei /'""''' ''™''«'"' -''''«' «'gned by tl.o party to bo charl f,! t '" '""""S' «"'' person thereunto by him ll^fl? ''"""°"""'' <"" "»">» «ther ring to the ease ,e,l Th cflri "^f ' """ "■»" ^"f"" ™ent which fulfil, the r „iS";;:C s r T"''" "" "«^- state, the consideration (L thlL.V . i "■'"''■■'™"'='' "» i' ;■« ».g»od by the party Le'Cd'-; '"'IT """""'■ *'"' to the letter of the tiuth it ,, llT / "^ "f"" "-efomng requisite, named by V „!:'" 'l"""' " ™"""» «"' «'t Statute. I, therefore think t 1 ' . '""^"""^ '° '""^^ the '» this suit i„ in uceicfrirhTs ::?■'" ? •"■'"- wquis'tos have been comnlid Zl , ?"""' "'"' that it, ^eofe, 26 L. J. (C. p ?""■''''";'""'• In H late case-^mitt v. ""« by the plaintiff of aTJ-.?' "'"^ """ » P""' aoeopt. defendant, cot'tit^s' ° „„ffic e „r 'l"""^' ''«"''' "^ 'he 'he defendant. ^°""' "<"'' "> '"iting to charge a vessel of a certai.f tonnag": U^^^L' " ^t"' t '"""^ ■*cts, required a rogistrv «n,I „ ij L' ^ '* ^'"P Kegistrv M'of ».le,I find i no nTets™ t •""'""'' °'"^''^"'' think, apart from that au" s C th ^^'^ ''"^' "P'"''™' «» ' their verdict. 1<"-'m«, th.y are ojititled to retain It was contended that (l,« ~,- plaintiff could notbensedasadTf"'"'""'","''"' """>« ''^ ""> hut that the defendants were l"o„ndt°° '" '° P™""' ■"='■■»■•. and, I admit, some of .he olderl r '"""'^ '" " ""»' ''<^«0" jeet. but the later o, e »„d 1 T' "' ""' "'^^ "^ "■» o'^^' "enable, admit tl»t the ;eprll at J^'" '^ '"» "'" •"<«' rea- » founded, where those reprentrn:'™ """'' ""' ™"'™«' he used a, an answer to the a !,„„ ,'""°"'" '° '■"'"''' "V aoid. Wd Ellenborn,! t '-^!°" '" "'° P"«o "f the article ^'amuda, ht in ET.«_1 su j.z3,'icr that It 'was tbo upon di unfit for to the V( case the and in t quality, i iritimatet tlio ca80 after tlio by the dc tations m purpuses given to dehvery c (h'ately vij letter of t refuses, n| the boat. defendants the contrai to the nlaii of the Ino the plainti weight; bi Street v. Bl the judgmc specific cha in no instan price on the fraud or exj of the vondi ception whe tracts. In c Cole, 3 Bing sold for the ( amount ; the purchaser tv whereupon p fiiaser; held. MICHAELMAS TERM. 1866. I 40 .0 tha vendor, or .0 give ,„•„ „„,ie„ to . ? , Lk I."'.!',' [case tho beer, t ho articlo in «nno*- ^" "'"'^ «nd ,•„ .,„ f.;„o,v,„;':,t"t r;t.::; " r,::" ;- v.; h"i>lity, and unfit for tlie puroose i„tp,,rj . " *""• i;..in,a,ed ,0 the vendor un' Col '''" .^t" ''"^ ?:"°' .r.i.e defend™;^:::," t::;\ir: et;:':x r^'"''-'' .at,„ns made o. l,er by „,„ ,,uintm u^ ' , „ X",>"' purposes for which sl.o „as intende.l „„. " "'" given to tl,e pluintifT ,1,.,. . . , , '"""«''""" "otico delivery of her T le .In ifl 1 "•'"*""" ^^f""-"' '" '"to ,. ^ , •' "^^ '"" plaintiff; in iis ev ilence siv. . i, i iliately upon (he arrival of the boat in I i ■,?!,% • I"""" loiter of the 6th J I,.." l:\JZL" ^ '"""""'' "'" I refuse,, „pon the part of ,! « '"7«P'"''»t™ Hie »«le, and I the bolt. It wis C^ V ,t ••'",''""•:'■ '" '"''•» -'"liveryof the contract, wi,ieh ho doni,.^ .1 ^' ''''"''' '■'••■"^'''«' 1.0 the plaintiff attlerrde mJT T'" '° ""'"' ''" of the 7«o, and no ZT^{ , *'"" ^'•'" '■" ""''P"''"'- the plaintirs c„ „,„rwo^W ^;;" F«ved, the „rg„„,„„t „,• Wight; bet here fra„,T„ ,,."'" """"'"' '" ™"«'' [the iudgmeuto, the Co,t „ /.tttrLut"'""'. '" *''""« specific chattel under «-«rra„(, I purchaser of a 46 POPE .. THE PICTOU STEAMBOAT COMPANY. the defendant, in an nctlon for monev had md mn.- i .. amount he had pa.d to the defo.KlanV Tind'l Tj" 'h " case says, (p. 730^ • " ft «Pnm. .i . i. ^'"^•"' ^- J-, >» that one without „ ,•„„ ,;„ ": crrL "f- H ;"",''' """^ ""' were „„„„., to „ee„„t ho,- uZ l:t^Z^!'lT c»n.,„t make any .lilferenco that the contn ^ ,' „ ' " authorized agent of the nhintifT ,,™";.""' """ ™>lo by an as a eo,.tr„ct lade JhttZLffT'' "^ ""' ''"'' " that the deioudant, har,etfd .f'T'' ,"',• ''''•''■"• ""'' boat aa he had sold tliom t !,T ■,, ° '''-''"''"' "'"=1' « -rvant. i„ ,.,,., iTanl t ^'Z' '' ■»,-- '-"--o their take,, to Pietou,a„d .he-^t'ol": t , 'L"::!: "/ 'T!"! be said that in that ease the plaintiff had fMlHM T " '' " by deh-vering to defendants'^o 12'^ b' ^l '" T""'"^' bottom, and which so m,„.|, ,l;n- , wHliout a zinc to .hem, that ZZ va u , f Ir tiT"' """ '"f ''" '""' ^"''' was purchased, and whiel, nut t,! , "•''''™° *^'' '''"'='' "I'" with? I cannot co'ilidet'e/'d' '"'''''' ""'"''"'""'^■'' the defendant,, „p„n the f'atTr v „g [ P^;:,"';':''' ™,T' back to the Ishinrl am u t> /^ '^'^ ' '^"^"j *» t^end her defendants 1 ,™ „,t I'Zf ^""'•'"' '^^ "- "Sent of the »tate or cond 1 1: i„ wW ' a m ff"""'™ "" ^'"' '" '"^ when sold. inhea,.g„:::tiri:l;:~;V'--.'o be bo extended to an e»ti-om« „„ , - "*?, I I'en it may boat without any „lrt of h ' ""'' ""' '''^''""^ "»"''"« th. in place of helH JJlSfTi "' " ™"" ™""8 ^"««l would be Obliged o accent !th Ik"'"" '"'''• "'" '''"'™'l'"'t» them back to 'he ll„T O ™r' ""^ ■"'""■' "^ »»-"l traeted to ,ell to the detn ."'/"Tf" *'" P'""'""' '"«• »"• tons, and ^iL^Ci ttz: ^t:[7T: """» -•• the Island for the purpose of Ja n;\ tjf p^ot' ^f"' '" be,ng brought there, and the bale openld^ it . ,1, ' T T" printed cottons T„ fh»t „°!,.Pf^"™''t contained inferior defendants were bo"i, S to' d ^Vl ™'"'' "»' '«' '"'•J the and I do not 1 how dtll^l.'''''' ""^^ *" '"o Is>and, andldonotseeliowitdFffe^Wri: coiiaiaera- ion. Th rticlu til Jig fraud ind whatc f the qui ivas unnec lotice to Ihey must very diiif. scertain ii f her, and lotico had laneea, I t isk of the Common rincipa) p( Diaintift". 1 um of £S,l live red by i pleaded, firs Vaudulent i lale, that no md seeondlj irae of the j lowing guarii nd VVigans io C. J., in that ition on whicli ^'tely us if the n, and hjinded the same hin- dl the defend- l.H them over defendants 1C08? And it made by un •nay treat it Piotou, and liver such a om— to their )80 of being •at. Could it iiis contract '»'Hit a zinc lie had sohj ' which she acquainted luld compel o Kend her :ent of the ■^no in the her to be Ijen it may 3nding the ling vessel defendants 31', or send ' liad con- vhite cot- agent in and upon d inferior > said the e Island, onsidera- MICHAELMAS TERM. 1865. 47 ion. The act of the niftlnfifr ;. i- 1.0 fraud 1,0 l,„d in tho fi nl: ' '""-""'" '" I«'-P<"u«te >..d whatever consoq,, lo^L MH./T'"",'' "'"'" "'■"" ' If tl,o ,,„c,tion had bec.„ ulm ,".? ""' ''V"""-«"^- .V.8 „„„„cos,arv dolay „„ TZ, A, Y!" "■'"-'"'" ""•'■•'' .0.00 .„ .i,e ,.ia,„.i/.";: ' „ 1 d ::""'""" : ^''''"^ lliey must h-ivo f um ... H ^''■""'" ^''" I'ont, "■ory dil,-«„„co, up . ' IX"; 'r ;""' "'"' -" .;cer,a,„ if she ea„'.„ „p ,„ ZZl^'l^l^ u'T *" '' I'or, »..d no injury „„, ,„„„i„„,| , ,,„' "f., ""'' ''°;'«"-g« lohcoliad boon Eiven to (l„. .J .{.'"'*'""'"■ "'O .-ee,, I tlnnt tl^rbl; . : '" ' ""'^^ ""- -rcum. "Hk of tl,o plaintim Tl,e To » "'" "''" "' "'" 10 Common liencl, N S 844 T„ ^'""'"■'»<"' ^^ 'nite et al, ;ri:.cipa, point rai.d'at'th 'ar;:::: by' °tL'?'" "', 7"' "■" Jaiiit B: The Diaintiff- *l,„,. i , ^ ° oounsel for the "". of X8,350 ?6 t^ le .■'""?'" "" """■°» '» '-^^over the »-«. by'the pt;i„r;: r :'f:,r: xt' "-;' ""• 'l»a o, I, first, that thoy wore inducedt „y bt t ,e f I"""'^ fnmdulent ropresentation of tl.o nlaintiff , ., ''° *""' »lo, that no snlphur had bo^ntod'trg J 'u'/r f '"" md second v. that lb«^r ^.vj . ''»« growth ot the hops; i- of the pLr 1 'Z tfainnr """"'': '" '"'<'*^"^- ^^ ««' losing guarantee °i!,.'^ ^'"'•' "'" '^"''"'"^^''^ 'I'e fol- -. wila.. agiLt a,!;ot ^":rcT^"- ^'r-' ^^'"'^ »o.lo of treatment on the no e, I '"' "'""S'' "■« 'taWe (o pav them any 1^! T?^' """^ ''"''' ""J^^'f l«e.tions were lef? tot.e urT , ? , "T"' ""^^''^■•" T»-o 'vilfally made a fal e ell IT;'" V; '"' '" "'° "'"''""^ '""» li«l no sulphur had beeruld ", "'° *""" "' "'« <='""™ot, ;>- "0 .,f hur ^z::^-:':^^:^-^f^io; luiderstood and intended by the t,ar.i ? , ''°P'' »"»» tr.ct,aud a warranty to thaltotTr " " P«" "f tho con- luestion in the negative andihe ... •■'"''V"'"""''"' "'<> «"« 'tey assessed the drtenorlt.o , i„ T.'" "«»«'■•"<"•«, and -on of the use of hr;u p ;:t":£to;V"; "', •"- '"^^ "^ laontly obtained to set asidVthevt'roni"" ""."""" 'he stipulation that no sulphur iLdll'' "".'"f^ ^r'""^ '"»« ■• -e i-ops did not amount to a .ondltio; t;7th: '^^J^^^U 48 POI-E V. THE PrCTOU STEAMHOAT COMPANY. 1)0 rojectotl if sulpliur had heoii iihp,? a* ♦» .4(1, Octol»r. «„,l woiBhc, the 2Gtl, h, presenn, of ,|1"" , Here ,. „o ,™ wa, cq„iv„l„„, ,„ r„,„r L-- el,„ |,om I ; :;:,i, '"■'iV'"""""' -^ "'"" '•""■•■ -'--'-'-" .t ui^nmont. 1 |,o nr^Mimont cf tlio cause was vorv full a I tl.o ca.es cited that appear to have ans^Xo ce t h^n in dispute. The Court held fl...f fi " • "[^"'"^ *" ^'"^ P«"it were «!,„; „ ,^ ITbr; l"'"" ;"","" "^ ""^ "'""'W ti.at c»,o, the plaintiff could „„t, i„ t|,o present form :/."•' '" 0«>«™rf( V. Lamb, , u. Tw kllttl ' ""^='" '" recover the nri™ ^^ „„.!.'. "''"='> ""»' »" Wion 1« 1 tion whic i8 not inai In a prev held that under a t'\ the opiiiic to, where misstatein such frauf altogether Hard on S The deft the plaintil a distance laid down i was requin Tno to the exercised b notice to re v„ ,. ' "'" '"''' '"'"' » <=»»• paid for it ; horo, al " theTrlv 7"r'" """""« "''"'"'l b^ «on which'huaontl^ltuod a d «' T" T'" '""' » «»»'''• In a previous case of £e«;^ v r" f.^ '"'°" '■"""od. ..eld that a „a„ colldTo" ^c'Ttt 'pri^'f '' '"', '""^ »..dor a fraud. And this ruling I auLil f "''' '"'^ tl.o o,,i,u„„ nf Tindal C J in ot- *,^ L "coordance with to, where ho state., t',a^' 1h th^l' " '""""' '"-'«'->■ ™'e"«d ™i.s..,e,„e„t is wi»„ " /I •'1;.^ il """';""" "''"" "'« such fraud, u,H>n eenoralnrLTi' '','°""""" '" f™"d, and altogether.' hL^ i^ 'l" t7'""''' "" """'»«'■ ;.arrf on &iie» 319 nrovil,, , P''*"'e" from .ff* T..e defendant In' s'T; Zd ' '^ "^ ""''"' •""«-•> «.e pl..intiff in another it 21 , 7 ,"^ '" '"'° P'-'""'"'^. «°d a distance fr„„eac 'other Jdll.S "" T "''' """^ « laid down by Hilliard a not'ie!t T/ ""''" "'" P"'""'?'*. was required of h m and to u "™"'"" '» ^^ '^a' /"»." .1.0 plaintiff ;;:wi'^^'',Xo"rd"r'' '° ™'"" «■« exercised by the defendants in f rcoverv'ofTher''/''™ or their s„bse;„ro:SLr:: s^t^^zr : ?-'' tbem w,, in the principle of a waiver „? tWr r^ht^"" '"" M.ntr.,.here.?r:;L'7o;S^^^^^^ '- H-x.., . am .uduced to extend n.y jndgme^V'by rrefe" II 50 VOVK V. THE I'lCTOU STEAMBOAT COMPANV. ence to another caso. Ponllon v. LaUimore, 9 lUy. ^ Oesg -59 was a contract for the h«Io of scorl ; tl.o vendor wan rantcMl .t to bo good now growing 8e. d. Soon ofter tl.« nalo the buy.r wa« told that it dul not eo,ru8,,on.l with tho war ranty, an.l ho afterward howo.I part and sold tho residue It ^ya8 hold that in an action hy tho «oIIer to recover the price of tho seed, It was competent to tho buyer to show fhat it m not correspond with the warranty. The jury lonnd fur the •lefendant, and a rule nisi wa» granted to sot a«ido the verdict 7^t\f"\ "'^'"'"""' '"*' ^'•"'-'"^'•P-'- »"yIoy. J., Haid' (p. J6J) : 'It Koems to mo tlnit it was competent to tho de^ fe..dant to show that tho seed did not corrospon.l with tho warranty. Tho nellor warranted tho seed to bo goo.l now g-ow.ng seed, and there was evidence to show, an.l tho iury have found, that it wan not goo"' » ™""»'"- but ^hon the June e stated "^f TT,""" " '"'""■"'»'''= i been burnt, the trelfo 1 X" iff 1 t :'' t ^"° '"«' •. j if he heard it fron. the plaL ff' ys:X'„', tj fTor'^' other person, then he could have obiecTdT. I ""^ the question, and if the Judge lid taken t dot '"'""/"« to expunge it from his minuses and Z t ''°*'"' f1"«' h™ .ot justify hi. upon his crrr •!•: atZMtt'I'.l^ "."..r ^proper evidence. 1 do not think, the«fo"rMh;;r;: 5d POPE V. THE PICTOU STEAMLOAT COMPANY. anything in this objection to justify setting aside the verdict and for the reasons I have imperfectly given npon the other points of the case, I think the rule for the ne^ trial should be discharged. m DmBarres, J. I do not think it necessary, nor do 1 intend to refer to all the points taken at the argument on lK)th sides. I will confine myself to those only upon which it appears to me this case must be disposed of. Adverting to the letter of 23rd May I most, in the first place, observe that it appears to me clear y to establish the agency of Bourke to give to the defendants, in the place and stead of the plaintiff himself, all the information which they required, and desired to have, as to the character and actual state and condition of the boat and that it also gave him the power to close the bargain with the defendants for the sale and purchase of the boat The first question then that arises is, whether the plaintiff 18 legally responsible for the false statements and representa- tions which were made by Bourke in relation to the boat to induce them to make the purchase. Upon this point there r;/.ir'*w :. ' "^.^•®°"'*^'- The general rule, familiar to us a 1 IS that the principal is bound by all representations or declarations made by the agent within the scope of his Bourke to give the defendants aU tVorma/tan. and to close the •ale, as it unquestionably did, it necessarily followed that all his representations, declarations, and admissions to the de- fendanta respecting the subject matter of the boat made at the same time, and constituting a part of the rea gestce, were binding on the plaintiff. Story m Agency, sect. 134 J!l™; '^!^J fi"' P'a<^«' contended by the learned counsel or the plamtiff at the argument, that as the contract entered mto between the parties was in writing, no evidence of any oral representations made either by the plaintiff or his airent m re ation to the subject of the contract was admissible to ddfendante, they must resort to a cross action. In support of that posite the case of Pickering v. iWn. 4 TauK ..«3 viwu, Dut i do not think it at all supports the view takeo MICHAELMAS TEEM, 186S. u of it by the learned counsel. That ™ an action on the caw for doce,t „. the sale of a ship, which the plaintiff decl.*j^ the defendants had warranted to be copper-fastened. T^ contract ,n wntmg was silent as to the ship being copper, fastened; .stated that the ship and stores were to betoken w.th all faults, and as there was no fraud, evidence of conve™ ations before the contract was very properly rejected; but if there ho-'baei. fraud, it is quite clear the evidence would have been admitted, for Chambre, J., said (p. 784) : " Where there T.l written agreement and no difficulty as to tho meaning, it is dan gerous to depart from it without evidence of fraud ; where there .s such, the Courts will interfere ; here I see none." Oibb, J in tho same case, sai.l (p. 786) : "In this case, if there had been any fraud, I agree it would not have been done away wUh In tl e case before us, misrepresentation and fraud are im. puted to the plaintiff by the pleas-it was the very ZZ b ubmittcd to and tried by the jury, and therefore to ho d tances of this case, would be tantamount to hold/- g th^ rand canno bo sot up as a defence in any action on a written contrac , which would be a violation of a well estabi hIS .gal pnnciph,, that fraud vitiates all contract,, whether writ ten or unwritten. Mr. Parsons, in his TreaiUe or, a,„tr<^ page 460, says : - If there be no express warranty, thela,^' general, implies none. Its rule is car«rf emptor, . • on" important and universal exception to the rule is, that it never applies .^ ca.es of fraud, never proposes to protect a eelle •gainst his own fraud, nor to disarm a purchaser from a de fence or remedy against a seller's fraud." And in 2 Taylor ^eking the remedy upon him against whom it is sought^and m that which IS the subject matter of the action or flaim". universally he d to be fatal to his title, and it may be e^lb hshed by parol evidence." That i, the doctrine laid dowit ^1 the cases and .t is too well known to require any authority to be cited in support of it. ^""nty tiff"tw r''\T'°"'^'"^ ''' ">' '«"•■'«'' "O""'*' <■" the plain- tia thatBourke'e roDrfl«entati..n- ...» , . '^ . tion.. not fraudulently »ad;rand„oU.lc;rttf ^ToeTve'I 54 POPE V. THE PICTOt; STEAMBOAT COMPASr. defendante in„m„cl, as the plaintiff had himaolf repre«o„to,I the state of the boat. It appears that the jurv b2ro w lorn this cause was tried did oot /ouk upon Bourko's ^proso^t io.» and fraudnlontly made ; and I confess that, looking at his tosh"' n.ony,oontrad cted a, U is upon all the es entia 1! t ' the witnesses on the part of the defence, I do not see W th^u y could come to any other conclusion than they did If ,„ Zr, ZrZ f,' "r;"'^ ■"»"" "'" ™P^o^->„ta«ons o . ,0 Zd ants which he did, believing thorn to bo trno 1„1 V would carry with it greater weight tlC.„ it does' But s '" she was returned to him as un'^^f.Jtu- ^ ' "^' could state to the r>z: z,xxi'"'::::i:v:::z luuiBiutj, ana inn boat havincr been HubmAr.j-n,i a* ni ottetown, they were not at liberty ?„ res ind the » * et T awcovery of the fraud practised npon then, by Bourke whic I regard as entirely destructive of the contract ti'h.« a^oe arrived at. I have not met with anv case in wl.: i, ;* ...... ,„^ ^..,^,._. _.j^^j invariably be made: a MICHAELMAS TEUM, 1865. jj notice to the vendor to take back the chattel i,. in many of the caae, where there wa, no frand, considered cnongh.and oq, , alont to a return, provided the notice bo given i^n.^ d,ately on d,»cover,„g that the article is not according to the order, or nnflt or the purpose for which it is intended That pnncple was la d down in FUh^ v. Samuda, I Camp. 193 where it was held that as the plaintiff knev/ i, July that the beer was „,.it for shipment and gave „o intimation'f t „^^ Dece„.her, ,t was to be presumed he had assented to it, being of good quality, and the defendant had a venlict. Ifere not a mo,ne„t was lost after discovering that the Ino did „„t „t „H answer the do,cnpti„„ given of hor by Bourke and the docep turn practised upon them, in giving the p tiff „„„eo „f thefr dotcrmmatioi, not to take delivery of her; and, as the nuvi^ ion remained open for some time afterwards, ho might, ifTo »d chosen, have taken her back. In OMt v. Smh, I Stark! 107 brought lor the price of copper pans made by tl™ plaintTff under a contract that they were to be sound, Ld of g"„d materials, liayley, J., held that if the dofendantL, after giving the copper pan, a reasonable trial, fonnd them insnflicicnt fof heir purpose and gave notice to that effect to the plaintiff lie was bound to take them away; but if no notice was given and defendants retained the pans, they were liable to TyZ mich a, the materials were worth. In Oroning v. UendL„ .M, page 2,57, which was an action brought for t\TpZ,l clover seed, which was objcaed to a, An inferior q 1% Wd FJ enborongh called upon the :ie(enda„t, at the close of pUintiff's case, to prove that he had offered to return the ..^ n fur the price, set up as a an „" to the act,„„ that the goods are of no value, I do not see X a vendee ,„ who™ a fraudulent representation h s 1 „!' and where the goods are proved to be of no value, as in th U to such an act.on, altlK,ugh there has not been a return of the property^ Wat are the facts proved here in relation ., L boat ? Dwyer, one of the defendants, states that if the boll had been represented as she really was, .hoy would not l„.ve taken her as a present, that she was not worth spending n,oney "po^ and was perfectly useless. Mark Talbot, a shipw Z •or 40 years, says: "I examined the /no two or three dfv after she can,e to Pioton, at the request of one of ^lltnl »t.. I found she had been burnt on one side. The ins.de burnt, and the end of one of the beams was burnt The pretty well timbered, but she was the.. . complete wreok The decks were ripped up in some places. Fro- vhat 1 Iv .1.1 , 1 thmk she would have been condemned." ,Hi» uXlZ here referred to «ree| v. Blay, and CampM y^Fle^T to the ent° » '" ""^ ''™''*"' '"" '"'» ■"" "' »" I'o-tato as totbe course they wore to adopt. They repudiated the con- h»ct the moment they discovered the deception that had been P~ct..ed upon them by Bourke, and took the earhest oppor _ „.,,, ,„.^^ ^ ^„g pwiniiu, ttud that they •ANY. ^as bound to 259, brought to bo good, d, Littledale, ;ed, the veil- ' tho vendor, an action for ight against reach of tho 'i answer to ithout a re. lality, in an an answer lot see why been made, , as \n this an answer turn of the ^tion to the if tho boat I not have ling money shipwright hree days fio defend- Hhe inside bers were rnt. The >nco been te wreck, hat 1 saw d upon a Lordship ninj.) 38itato as the con- had been »t oppor- hat they MICHAELMAS TERM. 1865. gj j would not accept the delivery of, or take any charge of, the boat, flanng done that. I think it was all they were required to do and hat as the contract became absolute! v void uu of noeifect by reaeon of the deception so practise.! upon the defendants they were, according to my view, under L legH obhgat.on to incur the expense of returning tho boat to L plamt.ff at Summers.de ; it being, as it appears to me, l' bu.mess under all the circumstances of this case, to take her I back at h.s own expense. I may say that this case is not to my muid. entirely free of difHculty ; but, aifcer giving it 'the best consideration which 1 have been able to bestow upon it I have arrived at the conclusion that, upon tho law and ovi-' deuce m the ca«e tho defendants are entitled to retain the verdict rendered ,n their favor, and that the r„l. for a new trial ought, therefore, to be discharged. I c'^u''''T'i' / ^""°"'' '" t''^ op'"'*ons expressed by tho rest of the Court, that the plaintiff, by his agent authorised to make representations about the subject of the contract in I question fraudulently misrepresented its condition and quali- ty, and that by reason thereof the defendants had a right to treat i as void, on performing the conditions which, in uch a case, the law imposed upon them. But I am of opinfon that those conditions have not been performed, and that, as a legal consequence, the contract was in force at the cummencement I of the action; and that, instead of the verdict being a. it was, or the defe^ndants, it should have been for the pl'aintiff. Before referring to the facts, I will state certain legal posi- tions governing, .s I conceive, the question. First-Where a vendee of a chattel seeks to annul, on account o/ fraud, the contrac whereby it passed into his possession, the law, wh ch 'lTd:'t1;t2'^"^"'^ ''''' '" ^^^'^'"^ that contact he shall do as htt e injury as possibh even to tho fraudulent vendor. Second-The vendee, in the .apposed case, is boZ «o far as may bo consistent with his own necessary right, by ^ nspec ion and inquiry, to test the condition of the chattei, in nl r'''''""7^'^^'''«'«^'« »«^ conformable to he I vendor's representation of if. tr, roa*«- m Which he was immediately Ufore the sale. Third.-The iiiiu tu the aitaatiou 88 roPE ,. THE PrcTOU STRAMnOAT roMI'ANT. von,l,m, in onlor t„ ro,nM,li„B. "m-t, in „v„ry ™»„, h,,vo (I„ OKco|,l,,,„„l, .,„j-l., „„.., „f u,„ duutol being foun,! I, • tl,„ j„r to 1,0 .,( „„ v„„„ w,,nt.v„r, oitl.or t„ tho v„„,|„r „r to co-l, ,./ M,. place u,hm ht received ddUfru of it. '• |(,.i„r„ • ". .t. .•...u.o.ti.M, will, tl,i, |„„t ,H,»iti„n, numnn, a,„l .«, ." , ..o.n v., at ,n n,„n, of t u„. in ,„„ k, ,: „,„„.". .1.0 0||n,vHlent , '.n««, " ,«k„ l.u.k;. .. p„„„„.,„ .. ;„.,,„,,■,„,;' tl.«t net n. p,„«M»,on „l tin, cimt.el vvlnVI, U ,„„| „|,„„ , .«v..H.,.l ,!,„ von,lo„ .itl, tho p,».o«»i„n of it." ,t 1 «• ...y, 1.0 o„n.lrno,I lo ,„o„n a m„,-o , „,„nt o( ,1 ' Jor, ( „ni . nnil Inko y„nr iiroperty." Si.p|u,,o a n„p,oiat.'o„ oon.lnoto,) l.otivoon M,. TaKorHnll „ atlcr to tin, fornwr, i,.. iI.oho wo,-,)^: .. j ,„,„„ „. , •" l."r.e, roiyin« on yonr rop,.„,„nlu,i ,. tl.at C:T^:JZ ,.nrp..« „,a,l„ known to vo , Y„,. „ .1 p,„„.„ ,,0^,-,,. ^L fcxoter, to „,y agon,, |,i, removal from v„„ „,„l,-, ,„ t|,;,"| una rnik lh„ h.,r,o ,h dol.vorod at K,t,..r, vrhnrc. .,0 trin! or ex«.mr!Hi,,«, a« to his »mlnl.leno«» i» n.«,l„- bnt „„ 1 U m..ropro«,...tio,. i,- t,,« von.lor, and ontiroK- .,,0 0,7 vH," t !' Y::rLv'''r""';'";" "r '"""■ - - "« •"" '^■™'' ti80l08», I Will not lako dolivory of him. Y,,,, i„ r«,„|„„ rlt "'-'.. ::,'". .r-:;,'"" ?,'-";■"« f- -•" Thi,, " Exol„ f -.1 I r , '""■""■ "'"' " """"nornido " for Court V •"";'' '" "'" P'-'"'i«'I.V'l.o caso hoforo tl,. Court. Now, can .t bo bolioved that any eminent V,Jil lawyer wonid give Mr. Tattor,all, in tho ,: ,po 7:1 £ .nt «d ,oe irom this, namely. "If y„„ ,Ji r. s„ ^.^ of «m horso, ho eannot .et „p, n, a dofonoe, that the c„„?™ . «vo,de,l by y„„r fraud, ovon if you have committed t™ irrid\r::r,:'r...'''^'„''- '»«- «e.io„ bron^i,:;: 'U 10 juu, ut r-xetei, wliere he received it, tho pO0HOB8IO! leariKul oi irinciplofi xproHs ){ f Hiilo of rhuro is { linlontion ifloring tc iiiuiiiior, flcr »li8C( elntioii to itil p(>HH( hut KUcIl *l«rn tho OMiOH, aiK [v.- re ordoi v.Luno. If Ipruporty to ;o biuino, si lid at I'ictc I tuko tli lllnstnitea t \^ it wns, w ;ho snlo of •uyor's cxp tofiBciously ened, and, { ight to rose iuimal, his ( jreturnod, ns [bound to 8ul ing it to tho laid down th 'this case, am [etato tho load I>i8 judgment 'y the fraudui chase, he maj ji> the situatio p'JW principl, tPANY. ml l»y tlio jiirv nlor or to till (tlia voihIoo'h ^'. " koturn; iiiul can onlv oxpn«Hsod l)v " ro-dolivor." voinlor witli hud wiion lu " It cHniiot nnioiit of the MICHAEF.MAS TERM. 1863. TftUorHiill, 1(1 '»» of a hor ;t> asHoc! liy the jo huy the ^i:ooliv'» ;• liiiri a'. e to tlio last I lore i!o trial but. on hi) 'f fruuduloiit 'loss for the f tho fornior. tho horso is in LoikK)!!, ploaso, hut m.." Thii., jrsido " for) before the int Engh",sli case, differ- •r the price Je contract tted it, 11 n- 1 rought, he I ived it, th«j 50 ..« of tho horne?" Can it he donhtod Ihut if B„ch a W, counsel an ia Hupposod wore aHku.f to oxphu . L «! al ,nnc.ph,8 governing tho case Nuhn.itto.l t» h L . ' m .xproHs himaolf tothiHofToct: '' Frau.I llv 1 7' ''' ^««.eofachatte, tainted .ithit,::;;^^^^^^^ I ore Ks only one way wherohy ho .an em^tually gn^^s* onfon to avoul t, and that is Uy returning, or li"^ ! efrorM.g to rotnrn, the chattel to tho fraudnlont Hcllor ,c^ |« manner, and at hucI. a ph.ce. as will, „o fi.r an is pn c ie^ ,, Dftor discovery of the fraud, restore him to timf ' .^|tiontotheeh.Utelinwhid.howasX!::^ Pltli ««»oic»i„i, „f t to llii) hiiviir" It !. • ''""1"'™" Imt «,d. i» tho iHw. ()„ tl,, , ,", ; , ' " ' "-" rovortihlo , u,r„ ti,„ oi„.t.„,, ,.tiei„» on.: : , tt,: 't:;':." '" t -1 If ti: ; ;'°7'>; "-•"■• I <=,.,„,, ,Vo„. thoir ve V .....ijro. It these defendants must incur costs in mt,,.. : *i' proper.,, to .S,„„„.„,.,iJ„, t,,„, ,„.„., „,,vi„ ^ ^I'l' „« kobh,„o s.„o„ ,y doing „t S „,„™Ma wl,. U tho^ . Wwul i.< «. IV o„, tl,o,o coatH wo„l, v„ boon provo^to | I tiiko tho CU80 of Perki/ v. /talch 21 l>i,.|, o«, ,• , ..t™.„. tho position. thu^n,av„ t, „ '-^.J^,,:;^::^ ;„,r "" ""; '"I'™'""""' ''.V tho soller to !„, ,it to the o„.cioiwy to tho Holler, (li»o.i8o i ract voidabl I will now illustration o ummer of 1 u, to the pi steamboat ; letter of tl 'n the interv ubjeet of th klse and fra igent, in oral fat Pictou, wh fPANY. . l>o umlorstodil obligtitioii to i 1)0 viewod in ;o of doing to, d to ftHcortftii; r'g roproBouU. and Anierioui MICHAELMAS TERM. 18(5fl. •1 ho rulo: "4 tlio ground ofj jn tlio disrov tiin 11 roiisotij^ noli othor ; or a view to re- 10 property ii )rd8 " an offer if tho parties rnply, in Huct ndco, to offer ■o tho diatant the vondor- le time mon- it settles the ound to offerj led Judge, ig dant rely ot proptirty U Judge most dant's COU& .286): "Ifi Jefendant ii 3fendant8 b< 3erty at the feet, WHS aU jcinding fori ; uotices of ard withontj 'eceivcs the n, though it _j ji ji CM ifiC VCTiSri r'n door giving him noticed liuffington v. Quavtin, 17 Ponn 10, ctod ,n TTilliard. 308, „. Again: " I„ caH., of exchange .etwoon A. and B., ,f A. oloctH to rescind for fraud in B ho sannot maintain un action merely l.y notifying B. to como and ■ecoivo the goods, but munt actually return them." N^tony Young 3 Oreonl. 30, and othor cases cited at tlm H«n,n nlaco' ow observe that to decide in the last case th.U A. cannot laintain an action is equivalent t<, saying that A. cannot •oHcind for the action would be necessarily buHo.l on an .ffcctua rescinding. Tho rule which, in cases of rescin.,-t ^y £ ^^^^^"0,:^^ mw 63 roPE V. THE PICTOU STBAa»BOAT COMPANY. of May tho UofenduntH, by thoir Hecretary, ttd.lres^ him (wl„, having boon oraployod by tho plaintiff to nogooiate and clo«« a contract w,tl, the delondant., had then closod it and exhausted h.H powers, and was, thoroloro, no longer tho plaintiff'^ agent save for the purpose of convoying Lu him tho letter under review,) ,n tho8e tormH: « The I'ictou Steamboat Company at a meet.ng held thi. day, resolved to accept Mr. Popc'8 oirorl for the sale of the steamer Ino, the price being |13G0, HalifaJ currency, fur the whole hull, en^.ne, boilers, and all materialj and furniture belonging to her, the same to be delivered to you at Summerside, I». E. I., and to be paid one month after sa^d delivery, and you are hereby authorized to conclude will, Mr. lope on these terms, and to bring tho boat over to tl.ij and risk ''"Tlu" . '"'"," "' ?^ ^'"™P"">"« ^P^'^ am risk Ih. ^vtts selected and appointed by the defendants M^,; :,^^.,ul to receive from the plaintiff delivery of he chattel. ,n -ntioned in the letter; and, of course, it was for him, .n that, capacity, to determine what ho would, or would not, receive ... such. We must bear in mind that tho de/endl ants thus proposed and nam. .u„ p.uce of delivery, and it iJ a fact, that, neither in this letter, nor in the whole testimony does It appear that the plaintiff expressly or impliedly coD-'i senud that the subject of tho sale should be taken over J rtdv',, in order to inspection and examination by the defend ai.ts there. He knew the boat was intended for Pictou but there ,8 not a word in the contract from which it can be inferiod that he contemplated the boat, when there, beinj Hubjeet to .ny condition as to rescinding there. Hourke charged with tho letter, proceed, d to the Island, an.i crmn.u.' nicated Its contents to Pope. The defendants' agent, w.hont inst, ut.ng any examination at Summurside, or elsewhere od th.. Island lu order to ascertain whether the representationJ made by tho pla.at.ff were true or false, took delivery of the boat etc., at Summersido, and had them brought over tJ Charlottetown, the capital of tho Island. There, from what cause and under what circumstances, does not appear, .he lo^p'cl'o?''^ " ''"' '"'"' '• ^^ '■^"''' '^'' ''^' towed over Subsequently to the delivery at Summerside the plaintiff J 4 ^ .:.cv*ivic« .. jj,u iUQ siiujectoi the sa MICHAELMAS TERJ/, IBM. •» fc„.„y m» „or wlmtever. Tha, tW defendant, took .I.-livory h tl..- b«.t »t Suu,m„r.„l„,„„d brought i, „v„r I., l.,o ,,l,.co ,.f l,e,r om, residence ,U I'ict. .rlK.r. ;r.tt,„ tJ„„,./our yun a/lcr lie, .„„,« u i^er tl„..y c»„.„d it t„ he Cn' hno, „nd «v.,«,od t.,e,r intention to r.,jcot it, on tho ground of fcl,o ll,cro dMc.,v,r.,d fr,.„d of the , ntiff in relation to it I We ,ave »o„„ tl.ut in ordor to their doin^. that, so ,« to di,- .nnul the , ,,ntmc , thoy wore bonnd to re rn, or, at l„„,t, t^ l,irer to rotnrn th. properly to tho plain at S^n.n,erMe. %otm ,e„ ,vlu.t they havo done in relation ,„ that condition M law. ope H,y, „, his evidence: "The boat vva» never retar„e,l to me, nor wa, it tendered or olferod to n,e - „„d there ,s nolhn,g in the evidence that contradicts thin. )„ the Icentnoy, the delen.lants have n„eq oeally „,„„i|„,i,,l their I leter.n„,at,o„ not „, redeliver, or offer to redeliver. Thoy lor.^le, merely to abandon at PUtou. The jury, let „, bear n nnml have not only not found that the proper't • was worth e,» the sel or, bnt there is no pro.d' that it w ,» ZZt. .erthless to the buyer or to the seller. The defend ..."atr ,e,r dec,s,„n to rescind, address a letter of the (ith Jit bach hun at .Sumn.ersido, whi.* contains these words- " Z cannot snbm.t to take the property." ■■ We have notified lelivory." Thus. .e eenneetmn) " that we will „„t ,„k„ d„,„„^,, .,,„„, espeetn,K M.e property, which, „, ,|,eir own request, 1"!^' r ' 'Ir^i '" '.'T "' """* """' '■■'^""«'" P-viou,ly t ey »•. "We wdl not take it." They content themselves wi'h uformn.;. the plau.tiffof such their iutentioi.s, with abando k the property and leaving it to go to ruii at a w 1 f : fVtou, to Mch thoy had brought it. I must not r.it this part of the ease without observiuR that C under tl r "'"^ ''°'' "'" '■"'''■''' '"' "•«•" ^-^ been (eand under that impression. I ara aware that misdirection >uot n,ent,oned in the rule, but, nevertheless, t TtCZ I^Klered whether, in ,,ucl. case, the end. of iusticr d" n7 Idemand that a verdict formed under misannrrl.l:" ,""' » . pon,t of the very essoneo of the case; is ™T ineff^'t » 64 POPE V. THE PICTOU STEAMBOAT COMPANY. verdict contrary to law in tfmt res[.. ot, and one that, therefore, j ought not to ho allowed to Btand. My learned bruthcr's Ian- gunge JM iW\A : " If the defendants, acting upon those ropre- sentationK, holioving them to be true, were induced to mak." the purchase, they were not hound by the contract, but could I disclaim it." ''They were, however," he added, and this in all that ho said on the point, "in that case bound to disaffirm I it without delay, and give the plaintiff notice to that efTect." The jury could not but infer from this that this was aU f'mtl the defondant.i were required to do. All this they hav y done.] but, as lia« been ahown, there is another thing which thoyj have not done ! Had the jury been told that the contract, J point of hxw. had not been disaffirmed, unless they were 8atisjied\ thai there had been by defendants a return, or an offer to return. ' toe cannof say that their vt diet would have been for the defend-. ants! In Toulmin v. Hedley, 2 ^. A K. 157, where, however, the point of misdir ction was in the rule. Pollock, C. B., said (p. 161): " In terms the direction of the learned Judge is not open to exception ; in what precise sense he used those terra J does not appear. The question left to the jury was certainly one capoHe of being misunderstood; and I believe the Court agree with me in opinion that there ought to be a new trial.' In the case under our review my learned brother's language could not but have misled the jury on an essential point of law. The jury should have been told that if there were no offer to return proved, the plaintiff, unless they could believe, under the evidence (which they could not), that the property waj worthless even to the vendor, was entitled to a verdict, under the general count, for what they believed the property to have been worth when it was delivered. OrounseU v. Lamb, 1 M. & W. 352, concedes the rule of law •' that, where there ii nothing exceptional in the special contract (as there happened! to be in that case), a fraudulent seller, where there has beeo no return, may recover on ;» quantum valebat, the real value of the chattel sold." It was assumpsit for a machine sold and delivered. There was a condition in the contract that if M machine did not work, nothing was to be paid for it. It wai held that, though it was not proved to have been returned tof the plaintiff, he was not entitled to any damages on the ^uanL turn valebat. without Hhnwincr anma naw .'n^»i:»J t. A -„•. ■ J. .!VTT jjij|/iiva vuu»i aui Stir = MICHAELMAS TERM. 1863. Lu„ „i,i.,! u. pS;!; ,r tit: ;r,r r ^■■•»' -■ «ion anMtcd to it, which vremnl,.! ,, • , ! T' *""'"» " «»'"'•• Miv implicvl c„„tiact arisiuK frora ll.o .Inf', ?. " '""" dc.aii,,« „,,, „,„ ,„„j, ,, 54:^' 't. X: Tstf " should only ,„,y so muol. as tho c, t„,1'„ !",' " '"'r'"'"" WM n-ortii ; or, if it w„. „f „„ ,' " "' """""'ni state, «.-... to stand by, and^'to Z^^tZ^T' Without examination, they romovfirl f I.. contract, when, ™™do. T„o defendant^ ^t^^lC:!:'^ to di8c agent to tn/n'':' , 'L tV^EitT "' n.«Je Mcre,tl,o course would Wo beomosThuS m" frandulont seller than the eonrse actually aZtod A ?■ " they had, at S.ininiorsido, the means nf 1L„ ♦'^^ • ^^ "'™' subsequently Jiscovered at p" o," thev n """."^ ""> ''''"'' lion, for the purpose of the rrese^ti^;"^ "°'°'"'''" taken to have had there ac/„/Z« ^S'/^'lf '" fixiDg tho per bd for inqnnof ;«,, i *^ . ♦'^'*" "' ^^ .ot limited, a, a LLjXlL ? ^^'""'■""ion, they were possessed ihe ^ZTz^X':t:z:''ir'7^''' quenco would follow, namely thaf Lft ^.1 ""^ """"°- preporty at Pictou, they we^' „ 'fbf ^1 £ ?'"'''"°'' "■» «otil now. It is unnecoslrv in .1 ! '"^"' '" '*'"»'''« tbe point of a rJZI^2 fcr e^ra.ilV''"'''''': '"'°"" eyesef the defendants beheld he "r'a'Kot''"".,'''' wre, U fact, enabled to discover the f^ndf I '• *^^ case i's Ln'd I r^i"/ 1""'™* 'T" '" '-^^ i"n«„ was ,i.e necessity fJr keeping "this ^ prop:rt;'Zx: 66 POPE V. THE PICTTOU STEAMBOAT COMPANY. Ml ( ;k amined during the whole period occupied in taking it from Summers ide to Chftrlottetown, and keeping it there twelve days, and afterwards removing it to Picton ? There was obvi. ously none I I, therefore, consider the effect of all these last mentioned acts of the defendants from this stand-point, namely, that, in point of law, they had actual knowledge of the fraud hrfore the property wa» removed from Sunmeraide. Paraona on Contracts, vol. 2, p. 279, has this passage : "A mere lapse of time, if it be considerable, goes far to establish a waiver of a right to rescind ; and, if it be connected with an obvious ability on the part of the defrauded person to discover the fraud at a much earlier period by the exercise of ordinary caio and intelligence, it would be almost conclusive." The defendants dealt with this property as tl>oir own, after they so removed it from the place of delivery ; then, on the authority of CampbeU v. Fleming, 1 Ad. & Ell. 40, they had not the right to rescind at Fkt&u. In that case, the question was, whether a party who had been iDduoed by fraudulent misre- presentations of the seller to purchase shares in a Mining Company, and who, after discovering the fraud, sold some of the shares, could rescind. It was held that ho could not. Parke, J. (p. 42) : "After tho pkiintifr, knowing of the fraud, had elected to treat the transaction as a contract, be had lost his right of rescinding it; and the fraud could do no more than entitle him to rescind." The question, as to whether those de- fendants doalt with the property as their own under a contract, may be determined by an obvious an twer to another question' which is this: "Did this plaiotiffgive, expressly or impliedly, authority to the defendants to take the property to Oharh^e. town, or authorize its being kept there for any purpose what- ever for twelve days 1" There, the barge and her engines, from some unexplained cause, were in a situation under water which must have damaged them. What evidence exists that the plain- tiff sanctioned this ? Absolutely none ! Even supposing she ffunk at Charlottotown, not from mismanagement of defendants' servants, but from inherent defects existing when she was dilivorod over by plaintiff at SummersJde, and supposing that urged to him, what would uii natural and irresistible answer be: J' You might hare ascertained the defects at Snmmerside. wa I, III no respect, oonwoted to your taking her to* Charlotte- MICHAELMAS TERM, 1865. g- yonr keeping h„ Iher re.veXrWer'''''"'"""' '"<■ plated, much low wnotioned -' ' * ""• "''"'•'»■ did, ^fter .heir i.Xd k owT wtjv'^ f "« '"»' "-^ de.lt with the eubiect of tZ.ofT . 5^."''' *" '""P'^'ely plaintiff in CamSt fLr^. .?* "f" '^' ■" '^''^ "'« Company. « xlVdM ^^™T' J "" ''"'"" '" ""^ «'»'"8 have done, at Sultl""' '' """' "*'"'' " ""^ »•■»"« warranty, k tJpJLtlXlXlVr/r" dence of expreaa affirmation, made by Bourko a. to L v ty and capabilities of the nronortv .„M « . ^' ■»"»''• .nd not of opinion n.ere^r^C'ih^M;:^^ ri" ' *""' t.on had been submitted to then,, could ZTmH ^"'"■ prea. warranty. See irajiarrf o„ &J^ ,7 i Hm T" C*ip«a» T. JfarcA, 19 Johns 290 l7.k! ' ^' ''' ''™ ranty, then Toul,.L y. fiX 2 C * K 157 IT, 1"°'' ""• of consideration. -s ^- * K. 1 57, would be worthy Tenterden in Ct 'Z^ B.'lTd ^62%"' f .'r" advert. .„ He doctrine heic', he .ay. t a certSn 7 '""fl cases, to the effect "th.f -k Tu e«™in class of 68 POPE 1). THE riCTOU 8TEAUB0AT COMPANY. I. on t!io part of tho seller, may (performing certain condiliona) return tho article, and revest the property in tho vendor. To that extent only ia tho case an authority to affect this. If, however, any person would venture to contend that Lord Ten- terden's words, used in connection with fraud, namely, which destroys the contract altogether'' are to bo received without qua- Ujication, ho would And that, taken in that unqualified sense, (in which sense I am quite certain tho learned Judge did not moan to apply them,) they are not law in 1865. There is no rule in tho law of contracts more absolutely fixed beyond con- trovorsy tliaa " that fraud, however gross, in a contract of Brio, does not ' destroy the contract altogether,' but only ai the election of the buyer.'' An express opinion of Lord Tentordon, that a vendee, hav- ing accepted and received a chattel that came to him by fraud, could, nevertheless, avoid it on the ground of fraud, though' there existed a warranty, would be accepted by me, not merely as a positive authority by which I would bo bound, but as according with my own humblo views of the law ; provided the learned Judge meant what I am sure he would intend, an accepting and receiving, not for the purpose of dealing with the chattel as the buyer's absolute property, but for tho pur- pose of examination in order to determine whether fraud existed and affected the contract. Lord Tonterdeu, as we have seen, put the caso of fraud as exceptional to the general class of cases of accepting and re- ceiving a cliattel whore there was a warranty, " because fraud destroyed the contract aUogether;" but we have seen that fraud in such cases does not destroy the contract altogether. Where, then, it may bo asked, is the distinction in principle between tho case of a specifio chattel sold and represented un- truly to be fit for a particular purpose, and the case of that same chattel sold and warranted- to be suitable for that parti- cular purpose? If the two cases are subject to tho same legal incidents, then, if the jury could have found an express warranty hero, Toulmin v. Hedley is an authority that those defendants, having accepted delivery of the property at Sum- morsido, not merely for the purpose of inspection and exami- nation, but as an absolute delivery of it, intending to roly on -..vxs ..aiiasi,^^ wwro &0ufiu lu Aoep the property, and have UICRAELHAS TERM, 18M. reco,,™ to tho warranty. I raako tl,o«o ohsorvalion* boca«,o jury, ami, ,r a„sworo- '"' '"' "-<'/ ™ "- 'v.„,anty only.- ..,„ „„^„5o upon ,„y,ou io say absuiutoiy that 'hat ease governs this, or would, if au expre« warranty had beeil 70 POPE 0. TDB PICTOO STEAMBOAT OOMPANT. the Mlient point, of .t .ro ,o strikingly ,in,il„ t„ tho.. of tho thorn would bo .n i.nneoo,«ry waeto of time. In connootion one „? 7"" ° •"" "'" •>■"" O"^"''''™''' I "■V """k ti." Tune V " wh': r'.E"' "-r^'fT^ J- - W-t. to n,y n>ind to h.m of the particular owe that could be taken, would not be entitled to the practical application of the follo;ing Ameri- can decLion noted in Bmiard on &fe., 319 " : " Where the ^.jnt^ agreed with the defendant to'nianufact„r?frhL certain uteueiU of trade at a specified price, and that they .hould bo sound, and mad. of the best materikls, and the artt cles having been delivered, in an «=tion for the price the defendant contended that they were unfit for the inteSdod u» «»; ir' r ''•'•"T>' '^J'»TI ' "hither the defendant had used them longer than was uece««,ry to make a feir trial of their quality.." Assuming, as I bave contended, tba "the ^ZfT , ■'"'."'"'^ «««'"»'»«'•«•*, the application of the principle involved in the caae just referred to from HOliard «rnT 7" '"'! ""■ ""'"' I""""""'" '"".t-obtrZ; »pon the mind munely, "i. it j„.t that this verdict should .tond aj^inst this plaintiff, in a case in wbioh the jury have the point of time when the delivery was actually made ?" Whatever speculations may be entertained about some .7t"he a'T" V ' ^""' "'"*'*'"'" " o-viewof wb"l .1 the authorities and text writers, without e«eption, English and American, place beyond the region of specula ion It may be shorOy put thus : There existed a con.Lt of sale-a Prince Edward Island. Thence defendanU removed it to Pictou,on the mainland of Nova Scotia, and, there on dit covery of the fraud, notified the plaintilT Ibat they iLffina d h contract on the ground of fraud, but they never offeroTto LZ Pj^""' •'"• *•"> property and the po«e.sion of it « L :n' ^''\ '''"."""'° " ""P"""" "■'"'em to do' ."d vl't r.'Ari.l!?. "'A"" -.'.'™.»' - ■-' r«»oinded, -.. --—uiWj ami „a ii; iii^i-o wjii jjQ ft judjgmeuj; MICHAKLIUS TERM. 18W. 71 agaiDst tlie plaintiff For the reasons stated, I am of opinion that this role should bo made absolote. Attorney for plaintiff, WUkins, Q. a ^"^ ^^<^1^^9^d. Attorney for defendants, A. C. McDonald. QARVIE V. PENNY. J)tcmbw 11, 18M. Neither the Court nor % Judn fata thA nnw.« *» — »k « to io^ in aen^nrrer. unle.. „ ':t':Z.TZt::i':.rZ::r^^, McCuLLY Q C, for defendant, moved on the first day of Term to strike t us case off the docket as having been impro- perly entered. It appeared that the cause had been entered for argument on demurrer by the plaintiff's attorney, who had obtained an order from Johnston, E. J., on the 20th November, allowing him to join issue and demur to several of tho dofend- fh of.' V ^'^VP'*'"*'^'^ *«orney served tJ,e demurrers on Uie 23rd November, with a demand of joinder in demurrer attached thereto ; and on the 27th November obtained another order from Johnston, E. J., giving leave to the plaintiff « in consequence of his having been delayed in obtaining his order to plead and demur," to add the joinder in demurrer himself. The plaintiff's attorney thereupon prepared the demurrer- book (adding the joinder m demurrer thereto himself,) and filed the same on the 28th November. This joinder in demur- rer was not served on the defendant's attorney. The first Court J. W Nutting, Prothonotary "-the last by tho Judge himself. 'H.e defendant's attorney joined in demurrer on the 2nd December instant. It appeared that the demurror-book 1.1. fo.°" °' ^^^""'^ ^^' ^^'^' November (licvUed Sia. lutes, chap. 134, sec. 228), or tho cause could not be argued during the present Term. ^ HcOuUy, Q, a, contended that the order of 20th No- vamber was invalid, as thn E«u.*t' n«"-* i-^j grant such an order in a common law cause. Our Act {JUv, 73 CRAMT V. HALt. Slal. chap 734, .«. 70,) allows ton day, i..r j„i„,„„ [„ ,,. »»urr.r; tI,o Kngli.l. Act only give, fj ,,«v./ 7 IJ 000 TheJudgo md no p„,v„Mo grunt tho ordo/of 27.1, V v„m bor. 3Z)o,rf 533; 4 A,f£.3I3. Tl.o Court „„lt e;." « par.,- ,0 jn,n in domurror boforo tho expiration of , ,„ to™ liraito'l thorofor by tho Slatnto. 5 M 4- If 141 ,,' , ^. to. obap. 134, .oo',. 00, I09!) ' l!/ncl, Q. C.coKM. Tl.oordorof27tb>fovombori8bind. me unt, uppoalod from. It „pp„„r» from Hulkn .f Lea em TdlT' ""''"?'' "'" |''"'°'"r-"not hi,„»ol( add .1,0 io , I; Jn demurrer a« ho might tho joinder iu i.,„e, vet ho mav il/cCMy Q. a, in reply. A party iVmaihim] with a Judge's seUside. 2 6%. Arch. Q. B, Prac. ( lOth ed.) 1537 ; 8 Doivl. Cur. adv. vuU. YODNQ, C J., now dolivorod tho jud^mont of the Court. Bot be author,.od ,a any chh«, by the order either of ihe Court favor to the opposite party. The Judge's order of 27th No. vombor must, therefore, bo set aside. Jiuk accordingly. Attorney for plaintitT, Lynch, Q. C. AUornoy for defendant, lilanchard, Q, C. GRANT V. HALL. Decmber U, 18M. A rule „,„• to .et whb .n award mutt contdn tho grouiuU of obl«c»i«« „n which th. p„r,y „.o,l„« Uu.«fur Intend, to rely, aud mL II! "1 "If""?!!! rVSiMMB Mtu itMritni. nr ■ nnn» «r u "i — ^«B %..« iiwitru, or B copy of iv. Ejkctment I the doftMJCo i At the tria {verdict passe [Court. Tho case ^ \ Solicitor Oen (and Mc Cully, points taken t ment - XBs ruM men ninnr fn do- ' Ihid. COO. nil Xovom- iiiot compel •f tlio torni (Citea ulao )or is bind- Leake, G94, tito joiijcler ot lio iniiy iglit otiior t tt Judge's to have it ; ^DowL iv. vuU. 'Jourt. fc V. Jilake, rriiMx can. I lie Court for Koino 27th No- MICHAELMAS TERM. 1865. 1^3 E. n. HAnRiNOTON, for phxintifT, moved to muko absolute a |rulo nm to set osulo the award in this cose. Attorney General, contri, took a preliminary ohjoction that the rule did not contain the grounds of objection to tho award and must therefore, bo discharged.* Hev. Stat. chap. UQ lec. 14. McDonald ei al. v. Mannaiul, 2 Thomson's Rep 79 ' 3 iy^. cC M., 203. There is another objection, that the rule iJ not drawn on reading the award, or a copy of it, which is hndispensable. 2 ChUty^s ArchbolcVs Q. B. Prac. 1C18 (lOth ed.) ; 3 Dowl. 340 ; 6 Dowl. 597. Thk Court. Tho rule must bo discharged. Attorney for plaintiff, D. Macdonald. Attorney for defendant, Attorney General. Hide discharged. PEART V. PEAUT. Dectmber 16, 18M. Where . plaintiff in ejoctmene claim, the po..o..ion of I«n.l. by decent from . coMcd tenant for year., he mu.t produce either letter, of pn.bate or of aZn! iUtraUon. a. ho I, not entitled to .uch po..e..lon .-u heir The Court will rectify an error in » deed, where there arc clear identification Md proof of what land waa intended to he conveyed -and wiLr . ? 1 [h« been cau.ed hy the fr..d of the party .eek.„/to de.:: tleXi'" """ Ejkctment for lands in Antigonish county. Pleas, fenitowr the defence to part of the lands claimed. At the trial before Dodd, J., at Antigonish, in June la.t, a The case was argued early in the prtt ent Term by the rv/.^f'*''"^ ^"^ "'" P'*^'"^'^' '^"d *^'« '^^^^ney Generai and McCully, Q, a, tor the defendant. The facts and the Imnt ""^ "'^ t^rgumont aulBcieatly appear in tho judg. \^^ -^ '•^^ "^ *"^ ■*'*•'**-' •"' ««'««"«'J •«> a"*""-!* *!»*»• 74 P£ART V. PKART. YOUNO, 0. J., now delivered the judgment of tho Court, i Thia ejectment was brought for two lota of laud of 15 acrej and 6j acres re«pectively ; but the defendant's claim wa, limited by h.s pleas to 6 acres of the one, and 1} acres of the other. The defendant laid claim to both as a purchase froj the tenant in dower, but it appeared at the argument thai the assignment of dower had not been approved of by tb. Judge of Probate, as required by tho 45th and 46th sectioni of the Probate Act, and the title was, therefore, incompletj The defendant claimed, also, under an administrator's deed and the inquiry then turned upon the title of the plaintiff. As to the 5 acres, Clark, the intestate, had executed a leas. for a term not expired at the time of action brought to Thomai L. Peart, the son of tho plaintiff, who died after action broucbt r«rrr i ° p?''°''^' ^^ ^^^^^^ ^^^ ^^^^ ^^^^^^ ^^^^^^ sJ\j 46th of the Practice Act, entered a suggestion of the death o/ the son, and that he was the legal representative, claiming th. right so to do as heir at law ; but the term did not vest in tL« plaintiff as heir, but belonged to the executor of tho son, if h. loft a will and to his administrator if he died intestate. The plaintiff, therefore, ought to have proved tho truth of the suJ gestion at the trial by producing letters of probate or of administration, and not having done so, and it being a fact admitted tha neither the one nor the other wa« in existence he IS not entitled as to the 6 acres to our judgmunt. The same objection is fatal to his claim for the 1} aorj under the lease ; but this he claims, also, as heir at law to hi, son, whom he alleges to have been the owner in foe. The IJ acre .s part of the 6* acres which were conveyed by Charle, Wheaton to the plaintiff in 1845, by a full descripL,w2 metes and bounds. In 1857 the plaintiff sold these lits of land one of them being the 15 aore lot adjoining the 6i aoreJ and fully described in the deed to William Clarlc. When the tZ7 .u\!^' "'':?^'' '"' ^•^"^ *^ ^° '"^^^^t^d' it agreed exactly with tlie preliminary part, and with the blse line of the de.cnpt.on of the 6| acre lot in Whoaton's deed, hJ ■topped there, omitting the side and rear lines. The descrip. .on, herefore, IS imperfect, though the intention to convej the 6i acres to Clark is sufficiently obvious. ' This mistake balnfy knnon •» - ^ '• _<...-.. MICHAJBLBUS TERM. 1865. U Unown to Clark; fche plaintiff, 18 months after, executed a bed of the 6i acrei to his son, Thoa. L. Peart, under whom b now oJaims. If the question turned altogether on the Ian. hsge of the conveyance to Clark, we would have some diffl. luity m holdmg that the 6| acres, or any particular portion of \, passed under the deed. But it does not turn altogether ^poD that. The witness who prepared the deed to Clark at he plaintiff's request, says that the plaintiff had one or two leeds with him at the time the deed was so prepared, from "rhich the plaintiff read to the witness the description of the bremises. The witness observed to him when he came to the lescription of the 6| acres, or rear lot, that it was deficient, bat does not recollect what the plaintiff said, and tho witness hoderstood it was all right. Now, here, beside tho identification, and proof of what was neant to be conveyed, we have the plaintiff, with Wheaton's leedin his hand, professing to read off a description of the tear lot, and giving an imperfect description, which has led to ibw question. That there was mistake or fraud is obvious: Dd if only mistake, it became fraud when the plaintiff exe- ^uted, and, after the death of Clark, recorded tho deed to his OD. We think we are not obliged, where the plaintirs title I thus founded upon his own wrong, to recognize it in this ^tion; and, therefore, as to the 1} acre, we also give judg. Dent for the defendant. ^^ Judgment for de/endarU. Attorney for plaintiff, Attorney Oenerai. Attorney for defendant, Cam^fbeU, Q, C. SMYTH V. McNeil. » I>«em^ 16, 1S8A. ITl •'""'^ '""l-^l^Jw'ongO,, •ecuritiei made roid by th« 16Ui iection If chapter 22 of Ihc RetU^d SUIuU., Mcoad «ri«, do«. uot ..Und to ^Z tommeaced before its puinffo. -wmv*. Jhj. word •••grwm.iit." in tb. iMt-naioed ttction do«. not include " noeomte ff, ihougl,| ASSUMPSIT for good. «>ld and delivered, and on an account 76 BMTTn V. McNMl. stated, tho particulars being :-" 1859. Oct. 1 4. To anioua of balance luo on scttloraent of account--X73 '^d 6d " pL famong ot^.-rs) that "the halanco or amount' of 'accoua alleged to bo stated includud intoxicating liquors sold quantities K hs than one gti. n, and that such alleged sotti*i ment was mado and agreed upon therefor, and was ^ .id J At the trial, beC ro Dodd, J., at Port Hood, in June, 1861 1 appeared that tho defendant had, in October, 185D, urkno'J lodged the amount claimed to be due, and had signed a mo J randum ,n plaintiff's book to that effect. T},is balance m, ^ased on 8evor«' ''ormcr settlements, In the first of which wer^ included u tow charges for liquors, in small qtantities, b tween 1^39 and 1843. The jury, under the diioction of tb learned Judge, found a verdict for the plaintiff, Bubject to tl opinion of tho Cour^ as to the effect of tho License Imw hd a rule m,i to sot aside tho verdict was granted accordingly. .1 ^''**o?' f ?' ^"^°- ^^' '" ""PP^''* °^ >•»»'«• Section 16 fl chapter 22 of the Revised Statutes, second series, enact. tl,i no person shall recover, or bo allowed to sot off, any d .r. for intoxicating hquors, in any quantity less than one ..uiou delivered at one and the sumo time, and that all specialJ bills, notes, or acjreemtnta, given in whole or in part to socuj any such charge shall bo void. This Act was in force befor tho action wu. brought.* It would bo no groat strainin ' «| stated." 1 he Act of 1863, chapter 17, did not except pond. J actions, and tho eighth section of that Act provides that ^1 counts .tatc.i- .ball bo included among the securities . \ void by thf^ linst named section. ' Solmtor General, contri. A security may be void, and vJ tho debt may bo recovered. Pcakes AdJUioml Cases, 32 ! ll ^i>. 17; 2 htraruje, 1249; 3 Camp. 119. A bona /c/e deb J •Tho action wu brooghton tho 29th Oetoh«, iaai .„.i .u. ,^-_. _ ._ _. H«v«w autuiao came into fonso oo ti>« I7th Augwi, 1M».-Kti-. "^ " "" mCHAEI^AS TERM. 1865. 77 Dt destroyed by beiug mixed up with a usurious contract Wating to It. 1 Htn. Mack. 463. "Accounts stated " beinc bntioood in the Act of 1863 shows that the Legislature I'd not intend to include them in the former Act. Whore a W 13 altered by Statute pending an action, tho law as it Wstcd when the action commenced must decide tho rights of irties, unless the Legislature, by the language used ,how a bar intention to vary the mutual relation, of such parties \Ad. &EUk, 943. (Refers on this point to cases cited by ••" in ( juUon v. Sangaier, ante, vol. 1, p. 678.) Cur. adv. vult. Yoma, C. J., now delivered tho judgment of tho Court. The law rendering void all specialties, bills, notes, or agree- ents given in whole or in part to secure charges lor intoxi- ktmg liquors sold in quantities less than one gallon etc bpesrs to have been first introduced in the first series of the leviied Statutes (1851), and has continued in force ever since ^e all think that the word "agreements" in that Act, and in N Act of 1869 (Revised Statutes, second series,) does not owprehend "accounts stated." We are not called u lecide whether the Acts of 1851 and 1859 are retrosp. .vo b to subsisting securities, neither do we decide how far the lebt is preserved, though the security may be gone. Wo luuk. however, that we ar< perfectly justified in holding that 1.0 Act of 1863 does not extend to an action brought before Is passage, and wo, thorofuro, give judgment for plaintiff. Attorney for plain tiff, MacdonneU. Attorney for defendant, J. L. Trmain, Bule diacharqed. BOUTILIEK AND Anotukb v. KNOCK and Otuebs. Dtiw^tr 16, 18M. Ult'"'f !*"Jl'!'/"'""* *° n07toJ.B..«, appeared by the drawing or £11 r.r *"'•'" re^Urjr. doeU. for the co«nt/when.n/ lo Irth 't n * * •'^'on.panylng pU.. by a canl allogod to hare been drawa V we •»id J. B. in 17fl7 CthA data a* t^s &!•-— ^-' k.- "- - _ - MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 I.I |5_0 2.8 ■ 3.6 1^ 12.5 1 2.2 2.0 1.8 1.25 1.4 ^ APPLIED IIVMGE ^^ 1653 Eosl Main Street B'.S Rochester. Ne* York 14609 USA •-as (716) 4e2- 0300 -Phone ^S (^'6) 288- 5989 -Fax M m 78' BOUTILIER AKIJ AKOTHEB V. KNOCK AND oTmaia. the certificate of the registrar of deeds given by the registrar to J. B a.'l prored to be marked with the registrar's initials. This cart and the certiicr' were proved to have been continnouslr and consecutively in the pc,L sio j J. B. and those claiming under him. and were produced by th. plEff aJ 1 180^000 acres, being the whole township. Nothing was known of this hook ^ andqmty and the fact of it. general acceptance. A grant, which appea«i| aiK)ve 180,000. This grant recited a previous grant in 1766 of the whole 180 OM we^it'iri "T" "f " "•" ^"" ^''°* («^ ''^««» J- B- wa, not onl were all also ^antees under the previous grant, and their title and posses.io ?r„r»^ !. fhri.?.T. '^''"^^«? «°«««^ to judgment if D. R.'. name had been upon thfZl '^^' r the plaintiffs, under all the circumstances, were entided J the deffendants should pay the costs of tiie argument. ' Ejectment for lands in the township and county of Lunen-, burg. Pleas, denying the title of the plaintiffs and their right to the possession, and alleging title in the defendants. ,^t^ fu l"n ' ^f""'^ ^°''°^' ^' ^'' ** I^««enb"rg, in October 1865, the following facts appeared in evidence. The plain- tiffs claimed, under one Jacques Bojtilier, to whom the! lands had been allotted in 1767, as appeared by the allot- ment, or drawing-book, filed in the registry of deeds, at Lunenburg, and the aooompanying plan ; by a card alleged \^\ have been drawn bv the aAiA Jannn^n n„-*:!i— .•_; ,«/.- ,.t.} date of the allotment book), said card containing a description ) oth::rs. strar to J. B., an J J and the certifica la the pcsscssioo ofj the plaintiffs at ihi tained in the wiioie rn of this book ba| nt, which appeared 1,406 acres of tJa ' the whole 180,000 r. B. was not one] Itle and possesiiog ver, stated that tht Secretary's offlc*. title from J. B. ai (one of the plain- he other plaintiff;, the deed to D. B, uitiffs' counsel tt for the benefit of >r one of them, or i put in possessic: did not attempt ti alleged weakness Fences as a juijl J. B. in or before i' adverse to thtl 5. to D. R. ondants, and thil lehad beenupooj as plaintiff, were entitled to I >ic trial, and thit| ity of Luneuj id their right j ants. :, in October,! The plain- > whom the by the allot- >f deeds, at d alleged to\ III liQi (ins i descriptioo MICHAELMAS TERM, 1865. 79 of the lot correapondiDg with that in the allotment book, it being described therein as No. 15, Letter F, Third Division - and by the certificate of the registrar of deeds, given by the registrar to Jacques Boutilier, and proved to be marked with the registrar's initials. This card and certificate were proved to have been continnously and consecutively in the possession of Jacques Boutiher and those claiming under him, and were produced by the plaintiffs at the trial. The block of land allotted by the allotment book contained 180,000 acres, beinff the whole township. Nothing was known of the allotment book but Its antiquity and the fact of its general acceptance. A grant passed m 1784 conveying 71,406 acres of the 180,000 acres allotted by the allotment book. This grant recited a previous grant, in 1765, of the whole 180,000 acres, and it cor. firmed the title and possession of a number of the grantees 7 m^i? /''"'"r' ^'^°*- ^* '^^'^' ^°^^^^^' t'^^t this grant of 1766 had not been accepted, nor taken out of the Secre- tary s office Jacques Boutilier was not one of the grantees in e gmnt of 1784 The plaintiffs were Henry Joseph Boullier and Samuel Brookman, and they traced their title as follows :~ Deed from Jacques Boutilier to John George Boutilier, 22nd Jane 1822; deed from John George BouUlier to EeLry^. ^^"l r'" n m ^I""''^'^' ^^'^ •^"'^^' 1«*« '• d««d from !lT*. ?u '' ^.^^'' ^*'* '^'^'"'^ P^^^^^^ff) to Samuel Brook- man (the other plaintiff), 12th March, 1849. Brookman had conveyed the locus to David Rodenheiser in November, 1863 and the plaintiffs' counsel, in opening, stated that the action was brought for the benefit of Rodenheiser. It appeared that Morris a surveyor, had acted as agent for both or one of the plaintiffs, or for those under whom they claimed, and that the defendants obtained possession from him. Brookman, how- ever, disclaimed Marris' authority to give the defendants pos- mmn, and the demand of possession came from Rodenheiser. whose name was not on the record. Aaron Knock, the princi' pal defendant, appeared to have been in possession of the' focw for about fifteen years before action brought. The defendants called no witnesses, but relied oi. a motion foranon-surt. The learned Chief Justice declined to non. , ._,r.,,.„ s-uo pOtuts caKen. The jury found for the plaintiffs, under his lordship's direc 80 BOUTILTER and another v. KNOCK and otheks. tion, subject to the opinion of the Court,— the Court to be at hbertj to draw the same inferences that the jury mi.-lit have drawn. -^ James, for plaintiffs. Defendants wont into possession under plaintiffs, and, therefore, cannot dispute their title. Leonard Knock said that he and Aaron Knock went into posse jsiori under Morns, and it was proved that Morris was acting as agent for some of the plaintiffs. If Morris professed tc ict for Bouti- lier, although he had d.^ right to do so, still Boutilier could take advantage of his so acting. There is a legal title in the plaintiffs. If the plaintiffs had not a perfect legal title they had at all events a colorable title, and if so. the acts of pes. session proved here are sufficient to give them title to the whole lot. The filing of the allotment book in the registry of deeds at Lunenburg was sufficient to give title. Prov Act of 1760, ch. 8, sec. 3 (Prov. Statutes, vol. 1, p. 61). [Wilkins J. »Vas that Act prospective?] I think that it was The' neglecting to improve mentioned in section 3 must be evidenced by inquest of office. The exception in the section is confined to the peninsula of Halifax. Cunard v. Irvine, James' Rep 31 IS aistinguishable from this case. A party occupying lands with the permission of the Crown has sufficient possession to maintain trespass against a wrong doer. 4: B & C 754 [Wilkins, J. We have settled the point that where 'there' 18 no adverse possession, a grant gives seisin to the grantee] J. W. Johnston, Jr., contr^. It is sufficient in this action to show title out of the plaintiffs and in a third party. No pre- sumption is admitted against a party in possession. The plain- tiffs case IS made up entirely of presumntions. Brookman's dis- claimer and purchase put an end to .-is' agency. The acts of an agent must be either distinctly adopted or repudiated by the principal. 7 C. <& P. 406. The plaintiffs did not veu- ture to ask Boutilier a question as regards Morris' agency A grant may be presumed after a lengthened possession. 1 Jac. ^JPaZ^er, 159 ; Cowper^s Hep. 103, note; 8 Ves.m-, 11 East, ent boo^. does not prove any drawing,--it is MICHAELMAS TERM, 1865. g, Bothing but . bald indeK. Boutilier could not. brio, the act,on, bocauee ho had oouveyed to Brookman ; nor Broot man because he had conveyed to Rodenheiser. RodenhZr could purchase legally, notwithstanding defendants' possessr Cur. adv. vuU. Warns, J, now delivered the judgment of the Court. fhe reasons, upon which the doctrine of presumptions i, apphed o supply defective evidence, are ..ell stated by Mr Jus.,ce ircher ,.JBcaU; lessee v. Z,nn, 6 Harris & Johnsl; 361. (oee note (J) to Jackson v. Lunn, 3 Johns. Cases, 124 '^Pre,„mpt.on ,s often resorted to for the purpose of sup pymg defective evidence; and in this country (U„ Ue^ States ,. not oftener applied to any subject than to sunllv defecfve t.tle to lands. It would be difficult to make out the t.tle tomnyof the elder tracts of land in this State by a r gular deducfon of title deeds from the patentees down to present proprietors, without resorting in some stal „f h m to presumphon. Records may sometimes be !of* or destroyed, ancient title papers may be defectively e«cuted Agam. -'Propnetary grants, under certain circumstances are presumed. In general, these presumptions are bottomed l„n the «,stence of certain facts, which can leave but HWe doubt upon the mind of the truth -.f the fact which we are torce and efficacy from that vigilance with which the law It, f 1 ^"^'"^^'^' P'-*™""'^ tHt they had in contract a rightful commencement." mtbT^'"\'' l^T*^ " ^- ^- ^■"•'•- » Johns. Cases n^lJ, "^^ ■''«" *•>« presumption of a grant from the origi. rsri-T''"™ ""' P'""™''' "-'"""^"ine in the year ter'slt;:^ 7;4»'"' "^'-Tr " ^' *""' "' «■«'«*■ that a "nl»;„.-ff" "' T' ^P- '^*' • '^ " " "o <*»»'>' t™e "tot a .plamtiff .n niectment must prevail by the strength of 82 BOUTILIER AiTD Another v. KNOCK and Otheim. his own titlo, and if a legal title be shown to exist in anotiier, ho must be defeated of his recovery. But such an outstand- ing title must be a continuing or subsisting title. It is not sufficient to show that, at any distance of time, it was vested in another. If that were sufficient, it would be in the power of a defendant in ejectment, on most occasions, to hunt up the original grant or patent, comprehending the premises in con- troversy, and oblige a plaintiff to deduce a chain of paper title from thence. * * The possession may be shown by acta of ownership applicable to the nature of the property." Kent, J., said (p. 117) : " Patents and grants are, in a variety of cases, to be presumed, even within the time of legal memory, for the sake of quieting an ancient possession." In Jackson e. d. Oansevoort et al. v. Parker, 3 Johns. Cases, 124-2, it was held that where the legal possession of lands was in the heirs of A. under a claim of title, and a descent in 1762, and B., afterwards, entered on the lands, and made im- provement, and his possession was continued for 37 years; but it did not appear that he entered under claim or color of title, or hostile to the heirs of A., whose title was not disputed until after 1783, the legal intendment was that B. entered under the title of the heirs of A., and that the Statute of Limi- tations could not begin to run till after the possession of the defendant was held adversely to the heirs of A. It was held also in that case that an entry adverse to the lawful possessor is not to be presumed, but might be proved. The Court said " the possession of the premises at the time of the entry of B. being in the heirs of A., under claim of title sanctioned by a descent cast, and his entry not being under any claim or color of title nor appearing to be hostile, the intendment of law will be that he entered under, and in obedience to the right of the heirs.'' Now to apply these principles to the case before us. There appears nothing in it to preclude, but sufficient, on the con- trary, to warrant, a presumption that the name of Jacques Eoutilier \?a8 included in the grant of 1765, — or if not, cer- tainly in some other grant. It appears from the recital to the grant of 1784 that the former grant actually passed the Great Seal, and that it included other names and other interests than the names and interests of those who applied for and procured « MICHAELMAS TERM, 1805. «S the inhabitants) ravbo 7Zf71 T"'""" '"'°""'»' '° «« tionor.) in due kr and the ^ " '■""" '^' '° ""^ ?<>«• thorn." It may brtC,,",! !^^"'f.T" "'"""f <^Jlrmcd to .ion were contoC ,o 4 1 Th! it,'' ,"'"',r''T' '" '"" ^''■ title derived from the oLLi ° "'f^ ,*''"" ■""'- -"""^'y. » and does not aplr to hTv ° b/™ ' •?',"'' """■'"'"'^ «'«'»<)' tion tl,ere„ith onX nreldin " r"''''''' ^"^ '"^° ■'■> «<""■«<'- then,-a„ act Thbh ?hT ,^' -f , '?^'"« °"' »"'' l°=-«"g " to tJnles,,i„deedJh sLfV hi ,tT' '" ''^" ''^™ <'™«- for and obtain t.!: g'ltnsVtd If^ t° ''" ""' ""P'-^ to fall back upon or snm. 1 ' "'' '""^ S'^"' "f "65 .hoy, reprosonrg To 59 ^reTorof ^r"',." '''"*'■ *"- which the whole tract derorih^d • T ^' '*"•'*'"' =""•«» »f had no title at all That ■»!! '° ^'■*"' °^ "^* •=™"'^'^'^' .rant of 1784 ^Itsed to No 15?/^ 300 ™'"'; """^ ""> boon " located and la d out " to .T»V « *"f '^™ '""' ''»'' appear, by the allot Jnttok" tZZZZtlV'''' "' shows it had been allotted tn hJ '^^'"'*' *° ""e 'a'er grant and that the older gZhadttt^i*'™'f """ ''■''»b"»te, to establish their loTatls ' ""'"" '" "''"' ^'^""""^ snl^or^VeHnft'tLT"' °"^ ^'^P ^""'-. »"<> P- in the old! grant ^'rnomt "T "' '^"'^ ^""''"'^ '■>» forthcoming. The raroflTes ," •^'^"" '""""' '^ ™* "<"- Groat Seal, the title audllf- "^ ""t"*"/ passed the evidence that aZZ nf ♦!,. ITovince, and we have no seem scarcely possible ton'r! ." evidence, ,t would eiy possible to presume such a concurrent deter- Bi BOUTILIER AWD Anothbb v. KNOCK and OrnEiw. mination that would necessarily affect the rights of so many of those who possibly did not desire to reject the grant. On common law principles it would be difficult to conclude that a mere verbal renunciation of their rights, even by all the grantees, without a formal disclaimer under seal could prevent the operation of the patent. Let us consider, then, what grounds we have for presuming that old Jacques Boutilier was one of the patentees under the grant of 1765, or some other grant. The evidence is cer- tainly very strong. It is proved that he lived in Lunenburg for a number of years ; that in the early part of this century he removed to Cape Breton, and about the year 1811 ; that, sixty or sixty-two years before the trial, the card and the accompanying paper, both indicative of the lot in question having been allotted to him, were seen by the witness, Henry J. Boutilier, to have been handed to Jacques by Rudolf, the then custodian of the county records, the initials of whose name are subscribed to the paper ', that these indicia of title have been in the possession, consecutively, of all those per' sons to whom and through whom title purports to have been transmitted to Boutilier and Brookman, the plaintiffs on the record, who have themselves produced them as evidence in the cause. If we go back to the original of these documents we find the came of Jacques Boutilier in the ancient allotment book, and on the accompanying plan, as the designated prO' prietor of the lot in question. We £nd that the lot was surveyed when old Jacques originally drew it. We find himi in the exercise of assumed dominion conveying, and with the conveyance transmitting the card and paper to John George Boutilier, upwards of forty years before the trial. The de- fendants' possession began fourteen or fifteen years ago. It was never adverse to the title of the Boutiliers if Aaron Knock entered under Morris as the agent of the Boutiliers, of which there can be no doubt,, provided an inference can be fairly drawn, as we think it may, from the evidence that Morris was acting for that family ; but even if the possession were -adverse in its inception, Jacques and those claiming under hinOr if they had title, as we think they had, by grant from the Crown^ \\a.H pft'x'f riTti«"» nnaaoaoinn frnm ihci ftnoffint (\n.fA of t.liA orrant- ttrtiti t-ryiiol/i «vvt T x/ ^v«^t»v»^-'»"-— .-*J,^*- ...w ■...^«. 1 ...» ^.»....^ iand a possession, therefore, against which, of course, Knock's MICHAELMAS TEEM, 1865. » pcBession for fifteen yea™, if adverse, could not prevail. It Ztia? .7: '" ■"""'' l'^'^''' '"»' '"^'y A- before the trmi and five years, therefore, before the commencement of Knock's possession, Rhino liad, under Henry BoutilierThen aid cu some trees on the land in question, which is proved always to have been called " the Bontilier lot " In short, when we see an allotment of land, in the county of Lunenburg to the owners of 300 acre lots made and solemnly hf'^ " Tu?"""^ "' ""'""'' ''^'^'^ "^ " P'»". showing the name of old Jacques Boutilier as one of those owners and n.em„r,als of that ownership in perfect accordance ,v h that register and plan delivered by the then keeper of the allotmen book to bun and those found in his possession in Nova Scotia proper and m Cape Breton foryears, and transmitted by him to the successive owners, or pretended owners, of the lot under W e purportmg to be derived from him-it seems scarcely possible, even .f hese facts alone marked the case, to resist an mference that the allotment of the 300 acre farm lot was town" ""'""^^ "'"' producible patent from the My learned brothers entirely concur in the conclusion that I have expressed. They are not, however, quite so clear as I am ™ the point of a deduction o/tUle/rom the particular grant There remains one other point to be disposed of. It was nsisted by the defendants' counsel that the plaintiffs onZ record by producing the deed from Brookman to Rodenheiser! had shown title out of themselves. This is true in a strict sense; but we cannot close our eyes to the fact that the deed ast mentioned was deliberately put in evidence by the plain- tiffs counsel, and under an impression that its legal validity 7Zl ThT"*f ^yf'^"'^/'^ o/adie^eiJn by Aarm ^nock That such a disseisin had existence by -'means ertamly appeared; and, at all events, the juiy dia ..t pas, upon It. It being quite apparent, then, that it was in view of this assumed conveyanca alone that Rodenheiser was not made one of the plaintiffs, we have concluded that we shiSl .„ ' J """'•f ""^ ="0» °f justice by authorizing, as we do an amendment by placing his namo on the recofd, and^ving 86 MILLS V. SMITH. judgment for him in wliom tho title indisputably 18. The plaintiffs must have tho general costd, but not tho costs of the trial ; and they must pay tho costs of the argument. Rule accordinghj. Attorney for plaintiffs. Creighton, Q. C, Attorney lor defenduntM, D. Owen. ■n MILLS V. SMITH. December 16, 1866. The purchase and acquisition of real estate in this Provinc* hj a party vho has never resided or done business therein, either by himself or agents, is not sufficient to bring him within tiie jurisdiction of the Court as an absent or ab- sconding debtor. Cochran v. Luncan, 2 Thomson's Rep. 80 affirmed. The Solicitor General had obtained a rule nisi, which ho now (December 6) moved to make absolute, to set aside the writ of attachment in this cause, and all proceedings thereon, on the grounds of irregularity and want of jurisdiction. The rule nisi was granted on reading the affidavits of the defendant and of George S. Milledge, and the papers annexed, being copies of the affidavit of E. C. Cowling, on Avhich the writ was issued, and of the writ of summons and writ of attachment. The defendant's .affidavit is dated 14th January, 1865, and he states therein that he is now, aud has been for six years past, resident in London, G. B., and that he has never been a resident in Nova Scotia, or in any way en- gaged in business in that Province. He further states that the plaintiff resides and does business in Bangor, Maine, United States of America, and has no place of residence or business in Nova Scotia ; that the cause of action, if any, for which the suit was brought arose in London, and not in Nova Scotia, and that the plaintiff has no cause of action against him which arose in Nova Scotia. Milledge's affidavit simply verifies the papers annexed thereto. Cowling swears that the defendant is justly and truly indebted to the plaintiff in MICHAELMAS TERM, 1865. 87 $30,000 for land and premises sold and conveyed by the plain- tiff to the defendant, and that the defendant is an absent or absconding debtor. • The writs of summons and attachment are m the usual form, and the defendant is described therein as " late of Clements, in the county of Annapolis gentleman." Counter affidavits were made by B. C. Cowling, the plaintiff G. F. Ditmars, and F. Mills. Plaintiff swears that, on or about the 15th August, 1864, ho entered into negociations for the sale of a certain property called the Clements Iron Works, situ- ate at Clementsport, in the county of Annapolis, and province of xVova Scotia, with one E. G. Roberts, as the accredited agent of the defendant; that the negociations resulted in the sale of the property to the defendant for £2000 sterling pay- able at sixty and ninety days. Plaintiff also states thLt he carried on the manufacture of iron at the said works, and did business there by his agents, for about two years previous to the sale to defendant, and was himself frequently at Cle- mentsport in relation to said business. He also says that, during the time said works were in operation, E. G. Roberts' as the agent of the defendant, visited the works for the pur', pose of reporting thereupon with a view to the purchase thereof for and on account of the said defendant. He fur- ther says that during the time of the negociation for the sale of the property, and previous to the sale, he was en- gaged m business at Clementsport; that the negociation was entered into and consummated at Clementsport, and that the deeds conveying the said property to the defendant were, by the request of the said E. G. Roberts, forwarded by him plamt.ff) to G. F. Ditmars of Clementsport, for the purpose of being recorded in the registry of deeds for Annapolis county which he (plaintiff) believes was done. He also says that the amount sought to be recovered in the suit is the consideration money for the sale of the said property, no part of which has been paid, or security given therefor. Annexed to plaintiff's affidavit are the following letters: Letter from defendant to t^. G. Roberts, dated, London, 28th July, 1864 ; lettef from E (x. Roberts to plaintiff, . ved. New York, 12th August, 1864- etter from plaintiff to i3. G. Roberts, dated, Bangor, Maine', u V ^ ' "^ ^""^ "'=" "^ Lhusu ieicers piaintifi says ; rou are hereby authorized to negociate the purchase from m 88 MILLS V. SMFTR. your friend William 11. Mills, of Bangor, Maine, of the Cle- montsport property, for £2000 Btorling, to be paid in bills of exchange, to be drawn by William IT. Mills at sixty and ninety days after sight." Roberts' letter enelo.sed this letter from de- fondant. The plaintiff, in his letter, says : " I accept the offer of Mr. Frederick Smith, of London, through you, for my property m Nova Scotia." Ditmars swears that he has for some time past acted PS an agent and correspondent, at Clementsport, of the plaintiff. Ho also states that while the iron works were in ope- ration by the plaintiff, he (Ditmars) was introduced to Roberts by the managers of the works. Ditmars also corroborates the affidavit of plaintiff as to plaintiff having done business at Clementsport, being the owner of the iron works there, etc He also states that he had the deeds referred to by plaintiff re^ corded, and returned to him. P. Mills states that for about two years he lived at Clementsport, and acted as plaintiff's clerk- that he is " well acquainted with Mr. E. G. Roberta, the person who acted as agent for Mr. Frederick Smith of London (de- fondant), and that he first made acquaintance with the said Roberts at Clementsport while he was there examining the property in reforence to negociating the purchase of the same and that the said Roberts did finally effect the purchase of the' property for Frederick Smith, of London, England, as his agent duly accredited." P. Mills also corroborates plaintiff's affidavit as to the sale of the property to the defendant, plaintiff's pro- prietorship of the works, and his having personally transacted business at Clementsport as proprietor of the said works Cowling's affidavit contained nothing material that was not stated in the other affidavits. An additional affidavit from defendant, dated, 5th July, 1865 was also produced and read at the argument. ' ' In this affidavit defendant states that, as he understood Roberts came to London, in 1863, at the plaintiff's expense, and that he was, in every respect, as to the Clementsport Iron Works, the agent of the plaintiff, and not his (defendant's) agent; that Roberts visited Nova Scotia in 1863 in the inte- rest of the plaintiff, and to enable him (Roberts) to sell the property for the plaintiff. Defondant further states that Roberts returned to London in October, 1863, and from that time until the ^fifli JiiiiT mp^ '•—" ^^ • c — i. ^„.^, ioo^i:, yyaa cuaeavouriDg, as tUe agent of the Cle. 1 in bills of ' and ninety ter from do- the offer of ly property le time past •ort, of the i^ero in ope- to Roberts borates the business nt there, etc. Dlaintiff re- about two iff 's clerk ; the person >ndon (de- h the said aining the ' the same, lase of the I his agent 's affidavit itiff's pro- 'ransacted id works, t was not MICIUELMAS TERM. 1805. 39 of the plaintiff to soil the property,_at which last date, he (Roberts), hen the agent of the plaintiff, and not his (defind- auts agent suggested to defendant to purchase the p operly which was he farst negociation he (defendant) had for the pure ase of the sa.d property, considering him (I cherts) o be pla.n,ff's agent and treating with him accordingly. Defend! ant also states hat his letter to Roberts, of the 28th July 864 wa3 signed by h„„ in London, and that the body of it was not .0 h,s (defendant's) hand-writing, nor was it pre'^ared by him He also says that the contract of purchase made by him in Lon States of America; that the drafts for the purchase were drajvn at Bangor on him in London, and accepted by himTde fendant) t ere, and made payable in London. HeZut affirms bat he did not see or know of the letter of Rebel to t e pla,nt.ff of 12th August, 1864, and of the reply of pla n '^^'^'f'.f}^'^^^^Snst,mi,untilho received a copy of the affidavit of E^C. Cowling, to which copf ,s of such leUe were annexed. He also positively states that Roberta was not his known or accepted agent, but the agent of the plaintiff Solicitor general, in support of rule. The affidavit of E C Cow mg, on wh.cl, the writ issued, is headed in the cause wluch .s a fatal defect. Eev. Staiutes, second seres, oil' 141; Prov. Act of 1864, ch. 12; 2 Do«l. N. S. 410. In ali cases aga,„,t absent or absconding debtors the proceedings must always have been founded on an affidavit The sum .worn to by Cowling is too large, by plaintiff's tn Ihow "g No place is named in the jurat of Cowling's affidavit S iN.d, M. 378; 8 Dowl. 234; 1 D. & T„ 698. 1 B. d P ml ' u r """i"^' ^'''^ "'""'^ '^''"^"^■' -"""^ of the plain- could regularly have issued in this case, for want of jurisdiction in he n Tfi^" P""'"' ''"^'" '" E-g'^O' -'" the her in the United States, and the debt wa« „„t ^„^t™,.,.j _=.";' the Province, though it may be said that the subject matter of I i 90 MILLS V. SMITH. the contract is here. Cochran v. Duncan, 2 Thomson's Rep 80; Good v. Cood, 3 Now Reports, 275 (1863). Eaton, contri. (Reads affidavits of Edward C. Cowline of plaintiff, of G. F. Ditmars, and of F. Mills, above referred to ) In the affidavit of defendant his abode is not sufficiently stated. It is merely given as « No. 7, Mincing Lane," without stating of London or of any other place. In the original " agent " is struck out, and ".merchant " inserted, which is not noted by the Judge. 5 O. B. 511. The Judge has not indicated his office in his signature to the jurat, as is requi- site. Rev. Stat. chap. 135, see's. 21, 30. The seal is insuffi- cieut. The jurat to this affidavit is also defective in not stating the place where sworn. It merely says, " Sworn at the Judge's Chambers, Rolls Gardens, Chancery Lane, this " &q The heading of Cowling's affidavit is sufficient. 1 Ch ' Arch Q'^'Prac. (10th ed.), 704; Hargreaves v. Hayes, 5 Ellis & Bl. 272. Using the initial " H " for the second Christian name of the plaintiff in the heading of his affidavit is sufficient 2B,&P. 466. The jurat of Cowling's affidavit is sufficient -it was not necessary to mention therein the place where sworn. 1 J/. c6 >S'. 302 ; 1 C. B. N. S. 321 • 1 Ad. d Bl 190 Weatherhe follows on the same side. The debt is sworn to m Cowling's affidavit, in the form given in the Statute. The belief of the agent would not be enough. The grounds stated m the rule msi to set aside this attachment are irregularity and want of jurisdiction. Even if a larger sum is sworn to than 18 actually due, it is not an irregularity, (hchran v. Duncan shows that the amount of the debt cannot be inquired into on this application. The Act of 1864 refers to forms not in existence. The jurat to Cowling's affidavit is sufficient. 9 Ea^t, 4C7. Rev. Stat. ch. 141, see's. 8 & 9, apply to a defendant,~or, at all events, he must come in under sec. 13 or sec. 21. As to jurisdiction, the subject mat- ter of the suit being in the Province is enough. The de- fendant did business here by his agent, and made the bar- gam in this country. He registered the deed by his agent- It was delivered constructively in this Province. THa nm. perty was habitable, and that brings the case within the ji^ris- MICHAELMAS TERM, 1865. gj diction of this Court. The plaintiff has an equitable lien on the property. Williams on Heal Property, 392 ; 2 V. d £. 306. Solicitor General, in reply. (Produces the affidavit of defend- ant, dated, 5th July, 1865 (above referred to), which he con- tends IS admissible now, as being in reply to new matter in the affidavits on behalf of the plaintiff. The Court, after hearing Weaiherbe contri, receive this affidavit.) Interlineations do not destroy an affidavit. It is only when they are in an im- portant part of the affidavit that they affect it. 2 ChUtfs Sep. 19. In an affidavit from the defendant himself no addi- tion IS required. '^ The defendant herein " would be sufficient Roberts, from all the letters, was clearly the agent of the plaintiff. Cur. adv. vult. Young, C. J., now (Dec'r. 16) delivered the judgment of the Court. One of the main objections taken in this case was that the omission, in the jurat of the affidavit on which the writ of attachment was granted, of the name of the place wherein it was sworn was fatal to it. I have examined all the cases bearing on this point, which - .ne of very great importance. Archbold says that the place nnd countv where an affidavit IS sworn, if sworn before a commissioner, or abroad, must be stated in the jurat. 2 Chit. Arch. Q. B. Prac. (10th. ed.) 1550 The case in 1 M. & S. 302 was that of an affidavit sworn before the Chief Justice of the King's Bench in Ireland, and though no place was mentioned in the jurat of the affidavit of debt. It was held sufficient foundation for arresting the defend- ant under a Judge's order on mesne process. In the King v Cockshaw, 2 N. & M. 378, the place where sworn was omitted in the jurat of an affidavit sworn before a commissioner for taking affidavits in ,the King's Bench, and the affidavit was held bad. Denman, C. J., .-aid: "The commission for taking affida- vits m the King's Bench is confined to particular counties. It does not, therefore, appear that the oath was administered by a competent person.'' The affidavit was not allowed to be resworn, as it was a criminal information. In Cass v. CW, 1 n ■ ' 11 i*" It ' 92 MILLS V. SMITH. D. & L. 698, the affidavit was sworn before a commissioner of the King's Bench, but the place was not mentioned in the jurat. The affidavit was held bad, but leave was given to amend on paying the costs of the enlargement of the rule In the case in 7 Ad. & EUis, 190, the place was mentioned in the jurat, but not the county, and the point as to the suffi. ciency of the jurat was left undecided. In re Chandler, 1 C. B. N. S. 321, the affidavit objected to was the verification only of the acknowledgment of a married woman. The place where It was sworn was omitted in the jurat. There was a notarial certificate stating the place where it was sworn, which was in Ohio, and affirming that it was sworn there, and that the magistrate who had signed the jurat was a justice of the peace, and duly qualified to administer oaths. An application was made for a direction to the proper officer to receive and file the affidavit, and Cresswell, J., refused the order, but the Court thought it might be granted. In the case in 9 £ast 437, which was an indictment for perjury, the question was! whether the jurat of the affidavit containing the false oath stating that it was sworn in London, and there being an aver- ment that it was sworn in Middlesex, the jurat should be held conclusive as to the place of swearing. It was held that the jurat was not conclusive on that point. From these cases it would seem that the naming of the place in the jurat is essential where an affidavit is sworn before a commissioner. But the accepting of that rule, and of some of the other rules touching such affidavits in 2 ChU. Arch. Q. B. Pmc. (10th ed.) 1551, in all their strictness, might hamper us m future cases, and lead to great injustice. As it IS not necessary for the determination of this case, we prefer therefore, to leave these as open questions, and to put our decision on the main point of jurisdiction. Since 1841, the practice in absent or absconding debtor cases has been regulated mainly by the case of Cochran v. Duncan, 2 Thomson's Rep. 80. This case recognizes the doc trine of constructive as well as actual presence, and persons transacting business through their agents within the Province are held to be within the Act. The debt also must arise out of a contract made in this Province ; in other words, the de- mand "■ —--- • . « . mast originate oat of a transaction in this country. MICHAELMAS TERM, 1865. gj Bot Whether the feet of a contract made and to be fulfilled k™,w,tho«t any actual or constructive presence of the de fendant, g,ves jurisdiction, and justifies the attachment o? hi, real or personal estate, and the summoning of his debtors is a point which I do not look upon as settled, and on wWch i it unnecessary at the present moment to pronounce alol ion In this case the contract for the sale of the lands was made inwrrting, by letters of the defendant in London aid oHho plamtiff .n Bangor The plaintiff has been here, and he has -ion. therefore, is ^"Zt.:^^^:^:^^ he e, nor has he ever done business here throngh any agent Roberts seems to have been rather the agent of Mi»7,u f Smith, and Ditmars acted at the instanc^ of MiHs „d Z' we must hold that the purchase or acquisition of real estate in this country bring, the party, for all purposes, within our let which, we think, would be too dangerous a stretch of authorty.' diction of the Court in this case, but I found it impossible to do so without holding that the possession alone of Sy th" WttKira J I wish to be understood as not throwing anv doubt on Ooc*ra„ v. Duncan. The defendant shon d fither be domiciled within the Province, or the debt contrac edtre ir'^h I'T '""""'' '^ " '" ^''-"' - "bsconZg' I debtor. I think it necessary stare decisis. ^ Attorney for plaintiff, Cowling. ^""^^ ^""'^• THE QUEEN v. HENRY DOWSEY, JOHN C. DOUGLAS AND WILLIAM LAMBRUERT. ' January 3, 1866. = D., J. C. D. and L. were tried for murder. H. D. and T P n found guilty, and L. acquitted ^- ^- ^^'e 94 THE QUEEN v. DOWSEY, DOUGLAS, et al. -"^i? The tollowing case was reserved as to J. C. D., under Rev. Statutes, ch, 171 see's. 99 & 100 :— ' " Admitting the evidence to have been legally before the Court, and to U. worthy of credit, as the jury have considered it, is there any legal evidence in this case under which the conviction of the said J. C. D. is sustainable in point of law." * *^ J. C. D. was mate, H. D. cook (colored), and L. a seaman of the ves- sel on board which the murder was committed. The murder was committed at soa, and the murdered man was captain of tlie vessel. There was no evidence th.it J. C. D. personally committed the murder, and no direct or positive evi- <]cnce that he counselled or advised it. The evidence against him was wholly circumstantial, and was, in brief, as follows. At 4 o'clock on the morning of the iimrder he was enquiring for H. D., and went forward where H. D. was sleeping The captain, while lying in his bertli in his cabin, between 4 a. m. and 5 a m was struck in the face by H. D. with an iron belaying-pin. The blows were repeated several times, and H. D. then '« got on the captain and held him down " L. (who had previously been on deck, but had gone below, being sent for by H. D.) came on deck wringing his hands and saying, " The cook has killed the captain." J. C. D, immediately after this came up from the forward cabin. S. (a boy on board the vessel, and the principal witness for the prosecution,) then asked J. C. D. what was the matter, to which he replied that he did npt know. J. C. D. then went forward, lit his pipe, laid down on H. D's. chest •moked a few minutes, and then, with tears running down his face, told S to "go to the cabin nnd help Harry" (H. D.) S. refused to go, and J. C D then gave the same order to L., and M. (one of the crew), who also both refused to go. J. C. D. then rep.?ated the order to L., who then went. H. D and L. then brought the captain up and tlirew him overboard. The captain was not dead when brought up, but there was no proof that J. C. D. could see timt he was still alive. The captain groaned loudly after being thrown over, and hfked his hands up. J. C. D. was at this time crying. He then told M to throw the captain's bed-clothes and mattrass overboard, directing him and L to put iron in the latter to make it sink. H. D's. hands and sleeves, and the bosom of his shirt, were bloody, and J. C. D. advised him to wash the blood off. H p. then brought up the captain's small trunk containing the ship's papers, and handed some of them to J. C. D., who then said : '♦ We cannot do what we in- tended to ,lo." (S, on cross-examination, said : " I do not think he said 'as you intended; ' he might have said so.") S. then asked him what he intended to d3, when he said " that he intended to go to the West Indies and sell the cargo of coal; then he intended to go to Mexico and sell the vessel; but they could not do what they intended." J. C. D. then directed S. to burn the captain's private letters. He then said that the best thing they could do was to steer to land and sink the vessel. The vessel's course was then directed to the land by J. C. D's. orders, and when near the land he directed a hole to be bored in the vessel, near the water-line, and her name to be painted out. The whole crew then left the vessel and went on shore. J. C. D. stated to persons whom they met, and also when examined before a magistrate near the place where they • It would appeal' that the Ccirt still retains the power to reserve a oaae in this ojRsnsr. See Staiutcs of Canada, 32 & 53 Vict., oh. 29, seo's. 42 & 80.— Rbp. tatutes, ch. 17] MICHAELMAS TERM, 1865. 95 Lnded, that they had left the vessel because she was leaky and that tl,p„ 1, a lost the captain overboard. He denied any knowledge Voe fn A hole in her side, or her name being painted out. He also t«,Id M ITh .ustnot say that the captnin was killed. It appeared 1 '1 ex^T ,rrcot;:r::s:?cT::r '7 ''^t-' ^"^ -•-^"-''>"«nrbX bvH D anTtl';; J^ad confessed that the captain had been murdered by H. D., and tha he was the first who made this confession. This confcsln wasm w:it.ng, but it was not given in evidence, and was not MoZlZT referred to at the argument. It appeared th t J. C 1> nd H D had s«.le together before-the former as mate and the latt r s bolwain of a colored crew The captain's clothes were divided among the creT in the presence of J. C. D., but J. C. D. took no part of then.. S s'aid on cross-exammation, that J. C. D. seemed to %e afraid of H D • ZZ he (S.) was afraid of him too, that H. D. followed then up alUhe^ime on shore and when they were in bed, and said that if either J C Tar7 peached he would swear thorn down. S. said that J. C. D. was k nd and m mane: seemed to be religious-would not allow swearing. JoZoTrJZ have opposed the burning of the ship's papers. His eabin was ol ite the captam's, and within a few feet of it. opposite ine Held by Young, C. J., Johnston." E. J., Dodd and DesBarres, JJ -Wil kins J. dissent.ng,-that there was evidence proper to be left to he jury By Johnston, E. J.,-that the verdict of the iurv was a m,-«f„i,.„ .hat the Court had not the power to set it aside '" ""'' ^"* By Wilkins J.,-that as the evidence did not exclude every other hypothesis ut that of guUt, there was no legal evidence to sustain the convict on !n.J that the Court had the power and the right to quash it. ««"^>«tion, and Murder. The three prisoners were indicted and tried for the murder of Colin C. Benson, when Dowsey and Douglas were found guilty, and Lambruert acquitted. The following question was reserved with' regard to Done las, under Revised Statutes, ch. 171, see's. 99 & 100 --."Ad mittmg the evidence to have been legally before the Court and to be worthy of credit as Ihe jury have considered it. is there any legal evidence in this case under which the convic- tion of the said John C. Douglas is sustainable in point of law " At the trial, before Young, C. J., at Halifax, in November, 1865, It appeared that one Colin C. Benson, the captain of the brigantme Zero, had been murdered on board the vessel at sea There was no evidence that Douglas had personally comi mitted the murder, and no direct or Dositive fivir1enc« th»* he nad counselled or advised it. The evidence against 96 THE QUEEN v. D0W8EY, DOUGLAS, et al. him was wholly circumstantial, and may be briefly stated as follows. The murder was committed between 4 o'clock and 5 o'clock in the morning, the fatal blows being struck by Dowsey. At 4 o'clock that morning Douglas was inquiring for Dowsey, and went forward where Dowsey was sleeping. Douglas was mate, Dowsey cook, and Lara. bruert a seaman of the vessel. The captain, while lying in his berth in his cabin, between 4 o'clock and 5 o'clock, having left the deck about 4 o'clock, was repeatedly struck on the right side of the face by Dowsey with an iron belaying'pin. Dowsey then got on him and held him down. Lambruert (who had previously been on deck and had gone below at the request of Dowsey, who had sent a message to him to that effect by Stockwell, a boy, also one of the crew,) came on deck wringing his hands and saying, '• the cook has killed the captain." Douglas almost immediately after this came up from the forward cabin. Stockwell then asked him what was the mat- ter, when he replied that he did not know. Douglas then went forward, lit his pipe, sat and then laid down on Dowsey's chest, smoked a few minutes, and then,. with tears running down his face, told Stockwell to " go and help Harry." (It appeared that Dowsey was called Harry in the vessel.) Stockwell said that he replied, " You may tell me to jump overboard, and I will do it, but I won't go there." Douglas then told Lambruert to go to the cabin and help the cook, but he also refused to go. Douglas then gave a similar order to Marlberry, another seaman belonging to the vessel, and a witness for the Crown. Marlberry also refused, and Douglas then repeated the order to Lambruert, who then went, Douglas and Marlberry remain- ing in the forecastle. Dowsey and Lambruert shortly after- wards came on deck carrying the captain between them, lying on the blankets " with his face stove in, and all bloody," and his clothes on, and threw him overboard. The captain made a noise, like talking or groaning, just before being thrown over. There was no proof that Douglas observed that the captain was still alive when brought up. Stockwell, who was the principal witness for the prosecution, stated that he heard loud groans from tho captain after he was thrown over, and that he was lifting his hands up. Stockwell also stated that after the captain was thrown overboard, Douglas, Lambruert MICHAELMAS TERM, 1865. g^ and lie were crying, Dowaey half lauchino. »n^ i,oif • and that Do«glaa advised Dowaev to wfsh «,„ m"{'°^ hi, hand, and sleeve,, and the L . fhia shirt l,f was bloody It also appeared that shortly aft r the it am was thrown overboard, and about t,ve„tymL L aZ Lambruert had said that Dowsey had killed tl?, f • Douglas told Lambruert ai,d Marlberrv t„ . ""f """' the captain's bed-clothes andta ttre// wh "n "™'^°"'' beaving on the main deck, aTftrortood "TfuZ ^fMarrryT;?.,:: tor; t '-" ^^ if +« n 1 . P'tpers, and handed some papers out of .tto Douglas According to Stockwell's evidenceon h^ direct examination. Douglas, after looking at the Iperrsaid "We cannot do what we intended to do " M«l!^ ^'j . thevesse but they could not do what^hey had Tntended t:^^rt^:trthrcoZt^^^^ rdCtdtrr"" fr"' "^''-W- orders :aged; and directed to the nearest land, and when near the land h» ™ leakmg and shorl,handed. Douglas was the firs tth^t Wd the story He told some fishermen whom they met » 'ei..ated- the samV s^ory tLfl:%-Z:t%.I: / 98 THE QUEEN v. DOWSEY, DOUGLAS, et At. Riviore, and again at Lunenburg (after being arrested) before a magistrate and a Queen's counsel, when he was discharged. He denied to the fishermen any knowledge of the hole in the vessel's side, or of her name being painted over, — said some other person must have done it. Ho told Marlberry that they must not tell that the captain was killed, but that he was knocked overboard. From tho cross-examination of two of the Crown witnesses it appeared that subsequently, and be- fore his second arrest (which was at Halifax), he had confessed that the captain had been murdered by Dowsey, and that he was the first who made the confession. This confession was in writing (made before a stipendiary magistrate at Halifax), but ii was not given in evidence, and was not allowed to be referred to at the argument. It appeared that Douglas and Dowsey had sailed together before, the former as mate and the latter as boatswain of a colored crew. The oflScers and crew of the Zero consisted of Capt. Beir^on, Douglas, the. mate, Stockwell, the boy, who said he was in the place of the second mate, Lambruert and Marlberry (Germans), seamen, and Dowsey (negro), the cook. Stockwell, on cross-examination, said that Douglas seemed afraid of Dowsey almost all the time. He also stc-ted that Dowsey followed up both Douglas and himself all the time on shore, and when they were in bed, and said that if either Douglas or he (Stockwell) peached he would swear them down, and that he (Stockwell) was afraid of him. Stockwell further said that the mate was kind and humane, seemed to be religious, and would not allow swearing, — that he had seen Douglas trembling in the presence of Dowsey after the murder, but not before,— and that he did not hear Dowsey threaten Douglas. Stockwell also stated that it was left to Douglas to decide what should be done with the ship's papers— that Dowsey wanted to burn them, but that Douglas thought diflferently. Douglas's cabin, or stateroom, was nearly opposite the captain's, with a pantry and passage-way be- tween. He left the deck and went below about 4 o'clock on the morning of the murder, leaving the captain (who went below about half an hour afterwards) and Stockwell on deck. Stockwell stated that Douglas and Dowsey were often con- versing, and Marlberry testified that he saw them together the afternoon before the murder. MICHAELMAS TERM, 1865. deL::f ""' "''''■ « -""- P»' in, b, or fo, J The learned Chief JustirA foM *i * • tbat Dougla, knew MoZy TjP '"• * 'T ""^' '''''■^-^<' they two had actually formed Z I T '" "'" ''"''^".-"■"t the .hip, and that to a Zlh thtr . T""« "'""^ "■"« ^ t.>r was tho first preHmina I hn^T. '° """'" "^ "■" diu uot see the crime c„ZS7 ." f""' """ ^""S'"' that the law would be a mcXr ' f TtiT .'", """""e- ""0 under such circumstancerejul « it "^ ".f ^""^las, struck the blow. H;« uJ.x,- , ^ ^ ""' ""^ ">»» who evidence agaiL ^ ^7^^^' '° '''^^■"•••^- '''^' *■>« read to them extracts fmmfK , ^ •"'""mstanlial, and ho in Jf« V. .ff»rfy« n w,„ h ,hl 1 ^Tf "'■ ^»'-°° AW»™n enable the jurr the ease W ""^ "*™" «""<"• «"' *» cumstantia/ev^et)rbr Hnirr oT"t '^ ""■'- necessary not only that it »l,„„i,i k . ' «"''*■>"' " was that it should be'^he „ ;^tttf r -'"r" '"""'="<"■' '"" onmstancos would onabt ttZ ^ Hisif ? ^ f fead an extract from the char-m „7 r /., ""'''"? «''° ifefflpAres,', case where hi. I ?!• "^ Moadowbank in tbeir duty was to cls^er Zhatta:'!.''''''' '° '"^ J"^ «"" from the whole oircnlT»„ I roasonable inference explain the cturtancer»2 -■" " "'' ''°'"''"'' *" innocence of the loused or whl' T^''^'^"' '""' «"« d.-dn„tleadtoaresuTdt::iyt:t;e:e''^ ^""'™^' *«^ s"i%: in7<;c::itti LaUtrt '""'' '"'^''^- -^ «-«- Jhe reserved case now (December I8th) came up for argu- «."^tl-^ov"S:£rth:'"'™'''*°"^''''- -^"^ defendant -Bed it.' wS,,^™ ^"r""!"'' «■« -urdor, or coun! If there be any reasona^rT' If' ''"■'""n^'^ntial Eridence. neotion onhe^rm^tts'^etrc: wi.^tr;^'''^ """■ '-. .-^ia^ :;i; all^t-it^eX? Z 100 niR QUEEN V. DOW8EY, DOUGLAS, et Ah. hypothoHiH but that of guilt must bo oxcbidod. Ibid, 171 m. p. 140, 4th rulo; I Qreenlcnf on Evidence, 15. Tho guilt mU8t bo as oloiirly doduciblo as a mathomaticul propoHition. Proof that tho do fondant has previously borno a good charactor is highly iniportiuit in a doubtful caao. Wills on Oircuinstanlial Evidence, \h'l, m. p. 131. Tho want oi dosign in tho dufondant is evidoncod by his want of action. IIo did nothing, and re- eisted tlio burning of tho ship's papors. IIo first rovoaled tho murder. IIo took none of tho captain's clothing. Tho cook's calling on fiiunbruort in place of summoning defendant is deci- sive, as it hIiows clearly that tlie defendant could not have been his acooniplico. The physical state of body and state of mind of tho deicndunt, as proved, are inconsistent with his guilt, or his guilty pro-knowlodgo. Tho murder must bo shown to be a part of tho original design. [YouNO, C. J. The attention of the jury was expressly called to that point in the charge.] "Any legal evidence " in the case stated moans " any sufficient evidence." 12 Law Times Rep. N. S. 60« ; 11 do. 643 ; 10 do. 350, 681. Defendant might have entered into a conspiracy after the murder, though he had no part in the murder. When defendant told Lambruert to help tho cook, it was to throw over tho dead body. Defendant's scuttling tho vessel shows that ho never meant to run away x'^ntli her. The cook threat- ened to swear the defendant down if ho confessed, and ho did it. Attorney General, contr^. The functions of the Court and of the jury are perfectly distinct. The power of a Judge, un- der Rev. Stat. chap. 171, sec. 99, is confined to questions of law. Tho question is, was there such a case as should have been left to tho jury ? Have the Court a right to inquire into the quantum or amount of evidence? All the decided cases turned on questions of law. 1 Oreenleaf on Evidence, sec. 49. Absolute mathematical certainty is not essential to justify a verdict of guilty. SkirHe on Evidence (Sharswood's edition), 724. (Cites also, lUd, pp. 741, 742, 761, 768). Presumptions are for the jury. 6 €. dt P, 147. The guilt of the defendant is established to a moral certainty. (Cites Charlotte Winaor'a case *, Biarkie on Emdenet (Sharswood's edition), 7-60.). There- '/I'S a^id dotei Jwselythereo MICHAELMAS TERM. 18M. jX, i. « .tro„K pro,umr,tl„n «p:ai„«t a parly who ,Io«trov, ,,„n„„. tat^m„,.,» „„,,.„„ of „ „t„„^,y ^^.^,^^,^ ^^^^_^^ ^^^0 76-78 lh„ ,|«f„,„i„„t „„d ti,^ „„„|^ ,,^,, . Indies toffotlior beforo. »r tfcn.r«; f„llow» „„ «,« aarno .i,lo. VVuuM any wth gudt. rio c«,o» m 10, 11 4 12 /,aw 2v„„« VAvwrt, ^tl°v/ V"-""'"/','"' '"""" *''»"^ ™ 1"°"'-- ""at' ti?e Ju, T "" °° (^^"-''"O'''. edition), oh. Duty of n^. ^. Johnston, in reply.* Cmj'. at/v. rM?^. Tho Court bein^', divided in opinion, now (Jan'y 3 1866) dchvorod their judgments seriatim. ^ 'y^> '^^^) Jar ca e our attention has been called for the first time to the extent oi our jurisdiction and authority under Ilov Statutes V :r T::T p *.'"»'/-■"""■ "" '^« J^-en^i- lot n *T2 Tt .,' " P™"""" ""'^ '""8 »'="^'' "'■»'■« «"y "''joction was token on ho part of a doftndant, or ocourred to tho Judge on a nm,„al tnal, which the Judge deemed worthy of more ma nre cons.derafon, to take the opinion of the jurv upon the f IlT°j' T' '° "Tr "-^ '"'°=*'°" ^- *>>» ooLdorat on of all the Judges; and .f the Judges, or a majority of them, were of op.n.on that the objeetion either to the indictment o^ the evidence was well founded, the defendant was recommended Tas'itt f I ^\'r'™°"^* '0 '^"^'toin the practice under It, as It IS found m the Reports. a,f rf ''^T/^" <'«'"ai"s the cases that were reserved aad^determmed^he twelve Judges of England between 102 THE QUEEN V. DOWSEY, DOUGLAS, et al. the years 1730 and 1815. Thoy are almost exclusively on questions of law, and I find only somo four or five which turn on the sufficiency of evidence. In Girdwood'a case, 1 Leach, 143, the question was whether there was sufficient evidence of the prisouor's having sent a threatening letter, knowing its contents; and the Judges thinking that the case had been properly loft to the jury, the conviction was held legal, and the prisoner received sentence of death. In Wdah'a case, Ibid. '' , which was for coining, the Judges were of opinion that tvas a queiifion of fact, whether the counterfeit moneys were 01 ^he likeness nttd similitude of the lawful current coin, and the jury having so found, (hey hold that the want of an impres- sion was irnmaturial, and the prisoners were convicted. Henri- etta Radio. nie'8 case. Ibid. 457, is a remarkable one. She was indicted for putty tre.i^son and murder, combined in one count. The crime was commu -id at the dead of night, when no one was in the houso but the prisoner, and her mistress, the de- ceased. Tliero was no positive proof of the prisoner's guilt, but the circumstantial evidence was extremely strong, and the jury convicted her of the murder. Certain legal questions were then raised as to the indictment and the reception cS testimony, but none whatever as to the effect of the evidericr , and the prisoner was sentenced and executed. It is singular that this case is not mentioned in Wills. In JReeve'a case, 2 Leach, 815, both the questions that were raised were held to be questions for the jury to determine ; and from this enu- meration it is obvious that, during the eighty-five years covered by these Reports, the only case that at all resembles the pre- sent is that of Radbourne, where the decision of the jury was accepted as final. There is here a break in the authorities to which we have access, and I shall refer only to a few of the cases that are within our reach at the present moment. In the celebrated case of the Queen v. Serva et al., 1 Denn. 104, a question was reserved as to the jurisdiction of an English court to try an offence committed on board a Brazilian vessel, and having been elaborately argued, the conviction was set aside. So also in Garner's case, 1 Denn. 329, just before the passing of the Act in 1848, the conv. cticu wps set as'de for the improper recepiion of testimony^ Ji *>;9 Quee,! -r. MICHAEIJIAS TERM, im. 1,3 m, 2 Moody', Crown Caae,, 30, a„ objootioD wa. taken for an aUeged m,,d.rocti„„ by tbo Judge, but «,c charge wasulld lfvd;™V:7cf "°''* "^T' *'• '""' '" ^^'-case in he «a ne vonimo, p. 166, convictions for murder woro r^^nnJ^ * *u cmoo of n,an.Iaughter, a, was done in o„r?wreo«rt t^™ ^y> oa.e, 2 Thon.,on, 203. Case, on the rZ=epZ o^eS of ovidonco rieem to have boon t^tc t\ « other instances, in , i>c„:9S,T,2 "u; i 'A""," "^T.^f 281; and .n Bu.. * Sy. 6, ■. This last =as. t'lotZl' «Urape, ut the present l.w, which in England, as in thi. donee of the oflenco having boon committed. Tho prisoner had boon mt^rrupted and withdra,^ „, and the Judge W Z question to the iurv whothor ii,. . • "'" ■'""'ge jeit th« crime befom l,„ ^'.. J / P"'""" '""^ "o-opleted the cnmo before ho withdrew, and withdrew on that account The ury found that he had, and convicted him, upon whi h c.,„dge reserved the caso for the consideration of he udges and respited the sentence. In MiohaeluTs Term Tr th^rnS:'" ''- ^"- - -» -^"---'- I look upon this case as throwing a strong light upon the practice previous to the Statute. The Judge who Wed he but the Judges he d that it was a question for tho jury T.e Judge having doubts, would, himself, upon the received ru e have acquitted the prisoner, but the'juVy convicrd hTm atd uen^ 99, seven of the Judges thought the evidence of i^nilt whether here was enough to sustain the verdict on the indTct »en t, which alleged a solicitation to commit a capital offeTct .n the express terms of the 7 & 8 Geo. 4, chap. 29 Looking to the general scope of these earlier cases I o.„ fhe r n™ "' ' "■«•"' ''°' ""^ inelinatio onZUt of the Judges to control or ;«>.,.(■„. _:.■. .i . ,. ^. " Juiy, where there was conflictii^g-;;;- s;;*^^^!: 104 THE QUEEN v. DOWSEY, DOUGLAS, et al. and the case had been legally tried and properly and fairly submitted to them. The Judges seem to me to have recog- nized the well known boundary line between questions of fact and questions of law, and to have interposed only where the law had not been satisfied or had been misunderstood. Inconveniences and evils, however, arose out of the Judges not sitting as a Court, and the want of an appeal from inferior Courts having criminal jurisdiction, and this state of things, as Archbold expresses it, being considered inexpedient and anomalous, a remedy was provided by the Act of 1848. " By recent legislation," says Stephens (4 Stephens' Oomm. 526), " another method is now provided for protecting a prisoner found guilty by verdict, from having judgment or execution awarded against him, where, in point of law, it ought not to be awarded." The preamble to the Act declares " that it ia expedient to provide a better mode, than that now in use, of deciding any difficult question of law which may arise in criminal trials." And the subsequent Act, 16 Vic. ch. 30, sec. 4, recognizes the Court so established as a Criminal Court of Appeal for the decision of questions of law, and, at the close of the section, provides for cases where " some question of law, of more than usual difficulty and importance, is likely to arise upon the trial." Our own Act adopts almost literally the language of the 11 & 12 Vict., and the same construction must obviously be applied to both. The Supreme Court, sitting in banc, is a Court of criminal appeal in every case tried before any one of its Judges, but the appeal is limited, as I have limited this case, to a question or questions of law, as contra- distinguished from any question or questions of fact. There is no question here of misdirection or mis-trial, of the improper reception or rejection of evidence, or aflfecting the constitution of the jury. Numerous objections of that kind were urged, and, having been fully argued on the criminal side of this Court before three of my learned brethren and myself, were over- ruled. Neither are we dealing with some new offence, cre- ated by statute, as in some of the cases, and where the suffi- ciency, or the effect of evidence to bring the offence within the words of the statute, may be justly considered to be a question of law. Wo are dealing with a conviction for murder resting on circumstantial evidence, and the jury having passed noxinno flu" i^ere over- MICHAELMAS TERM, 1865. io5 upon it after patient and full inquiry, the question is, whethe^r the conviction is sustainable in point of law? If it be held that we have a right to inquire into this question as a question of law, and further, that in our view, or that of a majority of this Court, the conviction is not sustainable, the verdict will bo of no avail, and it will be our duty to make an entry on the record acquitting and discharging the prisoner. This being the practical result to which we are invited by this motion it demands the most deliberate and serious inquiry. ' This inquiry is attended with the more difficulty that we have not as full an access as could be wished to the practice and decisions of the English Court. Most of the cases we have are of recent date, beginning with the year 1861 : and the case of the Queen v. Mellor, which is referred to by Ste- phens as an authority on the point, is not to be found here except in a brief note. Three of the modern c. ies were cited at the argument, but several others are to be found in the Law Times Reports {New Series), all of which, of course I have examined, but none of them seem to me to establish the right that is now contended for. In several of them the suffi- ciency of evidence is inquired into, but chiefly, as I think if not altogether, with the view of determining whether some statutable offence had been committed. In 3 Law Times Sep. 338, the prisoner was tried for abduction : the question was whether any offence had been committed within the Act 9 Geo 4, chap. 81, and the Court held that there was evidence which justified the conviction. In 4 Law Times Rej>. 259, a com- mercial traveller was tried for embezzlement, and the question was whether there was any evidence of his being a servant, as charged in the indictment. Pollock, C. B., said " the evidence 18 ambiguous ; but is not the question one of fact for the jury " and the conviction was affirmed. In 4 Law Times Rep. 373 a question of coining, the Court was of opinion that there was' enough of evidence to be left to the jury to enable them to say whether the mould was knowingly in possession of the pri- Boner, and here also the conviction was affirmed. In 7 Law l^mes Rep. 365, the question whether a liquid given to a party which the jury had found to be a noxious thing, was a „..„,_ ,^ its naiuru, ana therefore within the Stat. 24 & ^5 Vic, chap. 100, and the Court was of opinion it was 106 THE QUEEN v. DOWSEY, DOUGLAS, et al. not, and quashed the conviction. The strongest case I find was a case of abduction under the same statute (9 Law Times Hep. 426). There a majority of the Judges were of opinion that the facts did not sustain the prosecution, and that in point of fact the crime was not proved. There was no difference among the Judges as to the law, but the evidence did not bring the offence within the terms of the Act. In 9 Law Times Bep. 454, the conviction was quashed, because the depositions had not been properly taken, and were, therefore, inadmissible. In the same volunie, p. 490, where the defendants were prosecuted for the concealment of treasure trove, Wight- man, J., was not satisfied that there was sufficient evidence to warrant a conviction against one of the prisoners j but the other Judges thought there was evidence to go to the jury, and the conviction was upheld. So in 7 Law Times Rep. 756, Wilde, B., thought there was evidence very proper to be left to the jury. In the same volume, p. 801, Erie, C. J., held that there was n ) evidence which ought to have been left to the jury. And this, I must confess, appears to me from the scope of these cases to be the true tost. If the Court find that a conviction has been had, where there has been no evidence that ought to have been submitted to the jury, that conviction ought not to be upheld. But where there has been evidence legally received, «k. in this case, and proper to be left to them, can this Court interfere and set aside the conviction ? The cases that were cited at the argument, decided sinca the year 1864, do not appear to me to go that length. I will run over them shortly. In 10 Law Times Hep. 351, a case for stealing and receiving sheep, Mellor and Martin, BB, say, there was surely some evidence for the jury, and Pollock, C. B., remarked that the Chairman could not have withdrawn the case from the jury, or given them a direction that there was no evidence of felonious receiving by the prisoner, and the conviction was affirmed. In the same book, page 429, which was a conviction for obtaining money by false pretences, the question was on the sufficiency of the indictment. Pollock, C. B., said it ought to have been left to the jury to say, whether the words made use of by the prisoner did really mean that which would make it a criminal offence, and that the Judge ought not to take upon himself to say they meant that. And because the Recorder MICHAELMAS TERM, 1865. 107 had done so the conviction was quashed. In both these cases It will be seen that the distinctive functions and power of the jury are recognized and insisted on. In 11 Law Times Rep 643, which was a conviction of the same kind, one of the ques- tioDS was, whether there was any evidence to go to the jury in support of the indictment, and it appears from the language of the Court that the words "any evidence " and " sufficient evidence" are employed as equivalent terms. The object was to find out whether they established a false pretence Upon the facts, says Erie, C. J., I think there was evidence to go to. the jury that the prisoner was a fraudulent impostor, and the conviction was affirmed. The last of these cases Begina v. Smith, 12 Law Times Rep. 608, decided 6th May last, IS regarded by one at least of my learned brethren as the most important on the other side, but for my part I cannot so read it. It was a conviction of manslaughter against a master for neglecting to supply a servant 23 years of age with suffi- cient food and lodging. The prisoner's counsel objected that there was no evidence to go to the jury, and the whole evi- dance was reported by the Judge, with two questions, the second of which was as follows : " Whether there was evidence to support the indictment which ought properly to have been left to the jury." Upon argument the conviction was quashed. Erie, C. J., saw no evidence that the servant was so under her mistress' control, or unable to withdraw, as to mako her mis- tress criminally liable for the neglect. Channel, B., thought there was no evidence proper to be left to the jury. Black- burn, J., said, though there is some scintilla (that is, some famt trace or glimmer) of evidence, that ought not, especially ma criminal case, to be left to the jury. Mellor and Smith, ii., agreed that the case could not have been withdrawn from the jury, but that there was very little evidence, if anj, on the only ground on which the conviction could be sup- ported, and which I have already stated in the words of C. JL Erie. , Now it is possible that a more ample investigation, than tinae and opportunity will at present allow, might modify my opinion, but these cases, with a full consideration of the whole --^^-.., novo iiuprosBed me with a strong conviction that if there is anything to be left to the jury, any legal, or in other 108 THE QUEEN v. DOWSEY, DOUGLAS, et al. words, any sufficient evidence, on which they have to pass and if they have been properly instructed, and have found » verdict of guilty, neither the principles of the Constitution nor the sound construction of the Act, will justify this Court in annulling or defeating that verdict. Were it otherwise, the want of an appeal against the errors of juries would no longer be complained of in England : in the words of a recent writer of large experience, " pardons would be no longer the only redress of innocence against the wrongs done by ignorance," for the laVv would have already given the appeal which it is supposed to have withheld. And if such is the law we would do better in this Province to adopt the Canadian Act of 1857, enabling any person convicted of a crime to apply for a new trial upon any point of law, or ques- tion of fact, in as ample a manner as any person may apply there to the Superior Courts for a new trial in a civil action, I I have some doubts, I must acknowledge, of the wisdom of this enactment, but would greatly prefer it to the supervision that IS now claimed over the verdict of a criminal jury. It is urged, however, that there was no evidence of guilt in this case— that there was nothing, in fact, which the jury upon legal principles had a right to consider,— and that the defend- ant IS entitled to an unconditional and immediate discharge. Succinctly reviewing this branch of the argument, I mu3l guard myself, first of all, from the charge of misconstruction. It 18 not my province, at this stage of the case, any more than at the trial, to advocate or press the conviction of this man, and still less the consequences that may flow from it. ahould his life be spared after the sentence which, as I think, the law demands, the responsibility will rest in the proper quarter, and not upon this Court. If, indeed, the evidence had amounted, as in Segina v. Smith, to nothing more than a 8ciniilla-a mere shadow, without form or substance-a mere suspicion, as in Hex v. Isaacs, Wills on Circumstantial Evi- dence, 76— sustained by no chain of circumstances, and op- posed to all the probabilities of the case, I would not have hesitated a moment to interfere and to have declared my dis- j approval of the verdict. But unhappily for the defendant I am unable to take that view of it, and think it risht. terape- I'ateiy but firmly, to vindicate the action of the jury, and in a MICHAELMAS TERM, 1865. iQg kw short sentences to review the leading features of the trana- action and the legal principles which apply to the testimony Much was said at the argument on the nature of circum^ Btantial evidence, and copious extracts were read to us from Starkie and Wills. But I know not that they can be better put than m the two ex. acts which I impressed at the trial upon the jury, and shall here repeat. In Hex v. Hodges, Lewin's Crown Cases, 227, where an indictment for murder was sup- ported entirely by circumstantial evidence, and there was no fact, which taken alone, amounted to a presumption of guilt, but the result of which I have been unable to ascertain, Mr. Baron Alderson said, that, to enable the iurv to bring in the verdict of guilty, it was necessary, not only that it should be a rational conviction, but that it should be the only rational conviction, which the circumstances would enable them to draw. So in Eumphreifs case. Lord Meadowbank said to the jury: "Your duty is to consider what 13 the reasonable inference from the whole circumstan- ces; in short, whether it is possible to explain the circum- stances upon grounds consistent with the innocence of the ac cused, or whether, on the contrary, they do not necessarily lead to a result directly the reverse." I will content myself with adding two passages from Sharswood's Starkie on Evidence 724, 768, and one from PMlipa on Evidence, 441 : "Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt constitutes full proof of the fact ; absolute, mathematical o^ [metaphysical certainty is not essential, and in the course of Ijudicial investigations would be usually unattainable." Again • I' It IS universally admitted that circumstantial evidence is in Its own nature, sufficient to warrant conviction even in crimi- nal cases, and the test of sufficiency is the unaerstanding and conscience of the jury." « In the history of the law several presumptions, which were at one time deemed conclusive by the Courts, have, by the opinions of later Judges, acting upon more enlarged principles, become conclusive only in the absence of proof to the contrary, or have been treated as wholly within the discretion of juries." f In the light of these prinGiples let us inquire into the load- I »ng facts of this remarkable case as they were in proof. First 110 THE QUEEN v. DOWSEY, DOUGLAS, et al. of all, there was no evidence that the defendant, Douglas committed the murder, or threw over the body. When I sav there was no evidence, I mean no legal evidence, the declara- tions of the cook and of Bill being inadmissible. Next, there was no evidence, that is, no direct and positive evidence that the defendant counselled or advised the cook to commit the murder. In the absence, then, of direct proof, his guilt could be inferred by the jury only from the circumstantial evidence surrounding the transaction before and after tho murder, There were five persons on board besides the captain. There is no proof implicating the two Germans or the boy. The fatal blow whs struck by the cook, the defendant, who was the mate of the vessel, being in his berth, at the distance of only a few feet* Up to this point, it is clear, there is no evidence to convict him. This horrible murder having been committed by the cook, without, as the assertors of the defendant's inno- cence must maintain, the complicity or knowledge of the defendant, or any concert with or promise of support from him, we next find the defendant in the forecastle, at five o'clock in the morning, a few minutes after the murder, light- ing and smoking his pipe, and telling Bill, who had been in the cabin, and seen the colored cook upon the body of the captain, to go and assist Harry. I am not touching the con- tradictions, whatever they may be or may be thought to be, between the boy and Charles, but am only following the lead' ing circumstances, omitting the minuti. Bill does assist Harry, and the two bring up the c?iptain, all bloody, and with his face stove in. They throw him over the rail. The boy saw the wounds on his face. His hands were moving in the water; he was lifting them up, and the boy heard loud groans. What was the defendant doing all this while? He had tears running down his face, and was paralyzed either by terror or by a consciousness of guilt. But he became active. One would have thought that the first evidence of his activity would have been to have called on the Germans to assist him, and to have knocked down and ironed the ruffian who had just murdered his master, and whose hands were stained and his sleeves soaked with blood. But no. The captain's bed- clothes are next brought upon deck, and it is decided to throw them overboard, and obliterate every trace of the crime. MICHAELMAS TERM, 1865. jjj It is a suspicions, and a material oironmstonce, tl,at about mg, the dofondant went forward to call the cook- and after the murder the defendant told Charlev to thro'w the ed.cIothes overboard, with some pieces of "old iron wh oh tbe defendant p,cked up himself and told the boy to bring Charley stuck the pieces of iron in the mattress, and fastened' them 'O"^'* would sink. Bill and he threw it over. The de- fendant told them to put the iron in to make it sink. This was about wentymmutes after Bill had told Chariey the captain ™ kdled. The charts and papers are then brought up 3 «ammed, and several of the captain's letters Jo burned The boy says, " the defendant looked at the papers and said te cannot do what we intended to do. The vessel has too iL roers, and, before they could get to the West Indies or to Me.,co she would be missed and they would be searching fo. He sa,d "he mtended to go to the West Indies and sell the cargo of coal, and then he intended to go to Mexico and sell the vessel, bu they could not do what they had intended " On oros8.exammat.on the boy stated that the defendant said, " we ^mt do as we mtended to do." The boy added, " I 'dol't ftmk he said as you mtended , he might have said so." Char ey says, "the defendant brought up some letters outof tte cabm and read them on the quarter deck. Then the chart was brought up I brought up the captain's instruments to .ee what place they could go to ; the defendant sent m down to the cook for the mstruments ; the cook was taking the c^ tarn s clothes out of his chest. The mate was lookfng at th^ hart and told B 11 te steer S. W. After this the cook brought t.p a lutle box of papers, which the cook and mate looked at :i"rf *''%™" "° 800d, and they could not go to the West Indies, and that the best thing they could do w!s steer to the and and sink the ship. The mate said do" ' be fngh ened, ,f anything comes of it, I will take the whole of he blame." Then the captain's clothes were divided, the mte recemng no part of them-the vessel is run into the hnd-attemp s are made, under the direction of the mate and cook, to scuttle her, which ar» nro-V— 'W!- i ' ■ . ", „„„i.„. .T „ ' — "•- p™"a"ui,.diiy doioaiea, — the crew land atLaHave,~m pursuance of an agreement made 112 THE QUEEN v. DOWSEY, DOUGLAS, et al. among all Imiulrt, the captain is ropresontiul to liuvo fallen overboard,— tho niuto goes before tho autlioritios at Luncn. burg, and unites with tho cook and boy in tolling so plausible ft tale that they are cleared. IIo is afterwards arrested, and makes confession, and tho two Germans, tho cook and hoy, being secured, the whole of tho tragedy, or such part of it as we have been jjormitted to know, is revealed. This imperioct sketch omits many particulars, and is by no means to be taken as a substitute for the evidence, which must be carefully studied to obtain an accurate and complcto view of it. I have assembled together those leading features to picture the transaction as it would naturally present itself to the minds of a jury. Some of tho facts which boar hardest on tho mate may be softened or explained away. It may bo said that tho design to run away with tho vessel had noi been formed before the murder ; that his numerous actions, so much at variance wi(h his duty as a mate, were tho result of abject, terror, and that the same terror led to his appiirent complicity and silence when he reached the shore. I am content, for my part, that he should have the benefit of all those siiggustions; for I am not arguing tho case in order to demonstrate his guilt. I am only showing, as I think, conclusively, that there was evidence — I need not say how much or how little, that is not my province— but there was evidence of concert and complicity on the part of the mate, which was proper to bo left to the jury, and which no Judge, as I think, that understood his duty, would have ventured to withdraw from them. I am of opinion that a jury drawn from the body of tho people, and subject to challenge, is a better tribunal for the trial of criminal cases than any body of Judges could pos- sibly be. The latter is the continental, the former is the Bri- tish mode, and I give it a decided preference. Juries, in the language of C. B. Pollock, are inclined to take a broad, gene- ral and comprehensive view of the facts, and not relying on minute circumstances with respect to which there may be some source of error, their minds are generally conducted to sound conclusions, and all experience shows that in criminal cases they lean most commonly to the side of mercy. I am reluctant, therefore, to eocroach on their proper functions, or to assume a rfisnnnBibi*lif\T \)p1ii«»1» do^a -nn* \xn\^^^ * — t..j~« Vfirv itv»». — 1- -■J ■"i^A/rwj rules of evid( MICIUELMAS TERM. 1863. ^,3 m. re,po„«Mt, .-. o..™s.o<, to another power, and no. Jota a X^r^sZaf, "?"'"" "'"' "•» -"-'-of cert »ho„,4 J]„~too:afnX '"" ""' "•"' '^" vokod"ZTih"'iitt;^X^rL"w"-"pp"""^^^ master of a vessel at sea wt? •. ■ P"P««™'e •V refined terieX rj' t-'r rT'""'' "''^J''''"^ Starkio, "to acquit noon Lh?!- , f '''"e'«'g« of Mr. Hoas aid remote o^etnfCTltu'l '-'ff"' """"-"• juror's oath, and an om>r„ V ' '"o'a'"on of the interests of 'society "!aarI/T-r^"""''° "^"■^ '"» •ion). 761, ra. p. 865 ) '■^""' "» -^»*«« (Sharswood's edi- ^'ir;;^s:::fdr:ttd7:\:f^^^^^^ "ce of ages, as the safest gSes in th!^ ^ .•' °^'^"'- criminal accusations in British co„l„f ?''° '""»"e''«on of tie refinements, barren technTlv •'I''''''*' "^ "<" »""'- t% are dedu ttn dmT™ ot?;'' "^'■' -"7 ^"'"''"'»»" • ■Mtore, and beine fon„d„T . t^ '""S''* '"«o human «.ry cirrent h^an actio™ u^ntV-T '"'' "' «'* «'*- tivea, passions, interest and aretl^lht""""' °' *"' "■»• (iiversifled incidents of lif. fT" , • .""' """y ""e" in the culated, to protoet the L .%•''''' "'""'' """y "o ««•• -4..e^ntr:::;rrx?^:is^^^^^^ -«^rt:i:!;ta:e:'S:cr 'iir-^ M to a^ incTdl 'm^ r." «"«?'•»"»' feil-res mast be submit- instihttTor To th, rT""'^""'""' *"* «'■'»<=''«» *o human v^rv. T^tJ".^^" ''fS" of tW» Court is committed o.. ™fe.f Evidence „t: ^"""5 '"™'»'"' *'"' «»"""i,hed evidence, unswayed-on the one hand, by emotions of I 114 THE QUEEN v. DOWSEY, DOUGLAS, et al. m i . .1 compassion, seeking to relax tliem in favor of tlie guilty, and, on the other hand, indifferent to the demand, however nnivor- Bal and just, for the condemnation of an object of general execration and suspicion, in whose case conviction would not, under those rules, be warranted. In cases of circumstantial evidence, such as that we aro about to investigate, close examination and careful discrimina- tion are peculiarly demanded. To the validity of such testimony the circumstances from which the conclusion is drawn must "be fully established. There should be a just relation between the circumstances and the conclusion, and the deduction from the circumstances proved must be conclusive and not indefinite. To use Mr. Starkie's language, " such evidence is always insuflScieiit when, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be truie : for it is the actual exclusion of every hypothesis which invests mere cir- cumstances with the force of proof. Whenever, therefore,- the evidence leaves it indifferent which of the several hypo- theses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be." {Starkie on Evidence (Sharswood's edition), 757, m.p, 859.) This rule, which is of fundamental importance, is obviously reasonable ; for if, in the absence of direct prcof, the circiim stances that are known are consistent with two suppositions— one of guilt, the other of innocence, — to condemn on such evidence would be merely matter of chance and uncertainty, violating the maxim of Lord Hale, that it is always better to err in acquitting than in punishing, — a maxim which, by its justice and humanity, has so comm m ded itself to universal acceptance, as to have grown into the proverb that it is better that many guilty should escape than that one innocent man should suffer. With these rules before me, 1 will examine the evidence as it bears on the following questions : 1st — Was Douglas personally engaged in the act of murder? , 2nd — Or was he constructively present — that is, ^va8 be cogjnizant of the fact, and in near proximity, prepared to assist if re(juired? f . MICnAKLMAS TERM. 18C5. 115 I soo nothing in all this fostiraony tliat i, „„t with the supposition thnt tho mnT ' oons.si.ut cook, who looked not to tholalTf '"" °'"""""'^'' ''■ "'« ell, but, on tho con^lrv I?^„°7"''P°'''°'"'<"'gl' >' '"•" th.t tho ™ato w», a™ ;^; Itt'ar'^/™'''"'' -"king ,.,,„ , u,c-.v.upj Ignorant and mnoconf' nf ♦K/^ ^ • .»d was only aroused to hoar of tho murder t, at f T' homiwand heard ho hnli«„„j ,1. "'"™"'^> that, from what misohiof beyond roLdvi °'"'^'" *" "" '"'"'"' »»'' ">» perhaps s„spocti„rcol^ert t't """T "'"' ""'"E'""''. ""J cook, and trembling lesrtho f. Th ^^ '^'=™'"^^ "'"' "'° own, he yiehled .0 hi error ,nd , erf"" ?H" "" ^'^ ™e„t, and eonourred in the romoval of trT?' *''? ""- Woody bedding, and in the ooneX nfof h» ''/'"^ f' ho ne.er intended going to thXtln^ ;:;:'::'• "■"' tient to get awav from tho q].;, ♦ ^"^'es, and was irnpa- kensL of 'the cook turn n'g^.pt C ..rr"" 'f '"! "'•P^^" .oner i, onJuied to it as '^'' '"'''^ "°"'''='^''°"' »'« P^- On tho beat consideration I can »;vo ti.» 1 • . , ^■.nce in this case appears t" fuim t|' 1„^-,' '""'^ ""^ '"• 'hesis of innocenee,ltu a ly a d wUhout erther' T '""'■ 'ion fir^etr ' ;l^^rl-'!.^T^^^^^^^ ^»^- , 1 nvvOooaijr witic It snould exceed 116 THE QUEEN u. DOWSFY. DOUGLAS, et al. in pro ability tho hypothesis of guilt. It nocossarily follows that, in my opiuion, tho jury, in finding Douglas guilty^ did not arrive at tho conclusion which a judicious application of tho rulos of ovidonco to tho testimony in this case calio'l for. I have taken the testimony as having been credited bv the jury, except whero it appears obvious that they rejected it. It is proper, I think, to notice the serious discrepancies and unaccountable want of corroboration between the two witnesses for tho Crown. Some of those I have already men- tioned ; I will barely refer to two others. (His lordship here referred to the fact that Marlborry made no mention, in his evidence, of the conversation alleged by StockwoU to have taken place between Douglas and Dowsey with regard to the blood on tho hands, sleeves, <&c., of tho latter, when, according to Stockwcll's evidence, Douglas said to Dowsey, " You had better wash the blood off." The learned Judge also remarked on the fact that Marlberry testified that the vessel's name was painted out by Douglas' order, while Stock well stated that it was done by Dowsey 's order, and that "the mate (Douglas) said nothing — ho hadn't much to say." His lordship also referred to some statements made by Doug- las and Lambruert, which were given in evidence against them respectively, but which ho thought, notwithstanding the caution of tho Chief Justice, probably affected the minds of the jury against Douglas, perhaps without their own cod- sciousnesB of the fact. The learned Judge then concluded as follows.) It remains to consider the very important enquiry which involves the construction of the Statute under which the question 'of the Chief Justice has been reserved, and tlie extent of this Court's authority in answering that question. The decision of facts is the province of the jury, and strictly it is their only province ; but as it is their duty to apply the law as given by the Court to the facts as they find them from the evidence, in this sense they may be said to pass upon mixed questions of fact and law^ In civil suits the errors of juries, acting within the scope of their authority, may be cor- rected on revision by tho Courts, and when it is proper, jus- tice may be done by setting aside their verdicts and granting hu3 bcou uiuCrCOt, licrr viiazs. T ;~: — 1 *1 i. t.u \ii tUiiuai \ias\3a but; piubivu MlaiARLMAS TERM, 1M3. jj^ »nd tho romody h„, boon limitod, and tho modo of reaohine it . »'""'' ^o"""o»'ly, after aro-umftn* u^e Judge, wo .at .0 adv,-,„. By tho En'^li.h lotTClian ,7 — ;tro^it,Tl;.^-^:.:r^^^^^^^^^^ ..o..T.dsAct,avf:S..„„„U VtS^^^ .n a j.,d,o,a authority, to t..oir dooUiona, not befor onT^T bracing considerations of fact properly within tL. :Cf5.i^:^d::^X:rirn-£? . m„.t transoondontly ,oI„m„ that n,an oan be oaHod to dti cj.0 0.0. i tho ,„., f ,HaU to .;as7rito oli"' IVr M "' """^ '" '"P"*'^' to gro-P and to oon »ts, I entertam a strong opinion in favor of tho eiistonoo of J..™d,ot,on (nndor appropriato limitations anVguardsTta wnicti juries may have arrivRfl Th.'o ««.,♦• ^ • . . ground in England, andtlw l'^.l!'."t""^°' " .^^'"'"fi^ deliberatinn hr^}A A ""'•"" *'"" r"=^"^ '^'«ere caution and eiiberation hold the rem upon innovation, is nonr passing 118 THE QUEEN v. DOWSED, DOUGLAS, et al. through tho preparatory stagos of discussion ere it be finally tried by the crucible of public opinion as concentred in Par- liament, and I doubt not that it will not be long before we shall have the opinions of wise and experienced men, and probably parliamentary enactments to guide us. Our present business is with tho law as it is, and its appli- cation to the case under consideration. The jury unques- tionably had evidence which it was their province to consider after being instructed by the Court as to the law ; it was their duty to determine what the result of the evidence was : by their verdict they say that the evidence has led them to the conclusion of the prisoner's guilt. They do not say that thoy also are of opinion that the evidence naturally warranted a supposition of innocence, but they have preferred the suppo- sition of guilt. Had they said this they would have infringed the rules of evidence. But they simply say they find the prisoner guilty, and, assuming them to have been instructed in the law, the meaning of their verdict is that the evidence has led them to the conviction of guilt, and has excluded every reasonable supposition of innocence from their belief, I think that in this they have very seriously erred, but it being a question of fact which the Constitution placed in their hands, I fear this Court has not the power under the Act to interpose to rectify their mistake, if mistake, as I think, they have made. I think this power ought to rest somewhere, and that, for obvious reasons, if the verdict of a jury is to bo controlled, it had better be revised, and, if necessary, re- versed, by a Court of Justice, after public argument, than by an Executive Government Believing that the evidence naturally led to a different and more favorable judgment than the jury arrived at, I should have been most happy to have found myself justified in the opinion that the Court has the power, under the Sta- tute, to stay the effect of tho verdict. I cannot come to the conviction that the decisions and practice in England warrant the Court in exercising such a power in this case. I am bound to administer the law, however hardly, even fatallv. T tTriftv think if. nnArats" '" a""' "Tliwirl'ml r>aan • anA "' ^ • — j-w. - — -.* -.^ ...... . ..... . .,.....- , .-,.— although I believe the conclusion at which the jury arrived, in finding John C. Douglas guilty of the murder of Colin C. MICHAELMAS TERM, 1865. jjg Benson was a mistaken judgment, I am painfully compelled to say that I think the law has not authorized this Court to interfere to stay the sentence that follows the verdict The responsibility of the verdict, and the responsibility of dealinff with the sentence, must rest where the law has placed these responsibilities,— it is not with this Court. DODD, J. I have given to this case the best consideration in my power, and have come to the conclusion that there was sufficient evidence to send the case to the jury as respects the prisoner Douglas. The facts of the case were for the jury, and if there was any legal evidence upon which thev could assume the guilt of the prisoner, it was within their province to do so ; and I have no disposition, if I had the power, which 1 think 1 have not, to interfere with their pre- rogative. If there is any legal evidence against a party charged with a criminal offence, the case cannot be with- drawn from the jury. The Judge, in my opinion, is to decide iipon the sufficiency of the evidence to send the case to the jury, but the jury are to decide upon the sufficiency of the evidence to justify a conviction ; and, even where they con- Vict against the views of the Judge who tried the cause this Court can give no redress in such a case, but the resort must bo to the Crown. With respect to the trial by jury. Lord Hardwicke has ob- served that all reflecting men will agree in the observation that " It IS of the greatest importance to the laws of England and to the subject, that the powers of the Judge and jury bo' kept distinct." The general principle that the Judge must determine the law, and the jury the fact, is cot, and cannot be disputed. 1 Taylor on Evidence, 30. The same author says although it IS the exclusive province of the jury to fix the' due weight which ought to be given to presumptions of fact .juries are usually aided in their labors by the advice and instruction of the Judge, more or le^s strongly urged at hia discretion. Ibid, p. 186. And Lord Mansfield, in Rex v. The ~~~ TxC'^T^i "' f "'^'* ^^' ^^''''^*' ^"'^^' ^^*^' ^*^'^» ^'* »s justice, the cases jury how to do right, though they have it in their power 120 THE QUEEN v. DOWSEY, DOUGLAS, et al. to do wrong, which is a matter entirely between God and their own consciences. With such authorities as these, it would be vain to say that the jury have not the exclusive power to decide upon all questions of fact, and, unless that power has been taken from them by legislative enactment, they possess it in as high a degree as they ever did. At the argument of this cause, the learned counsel for the prisoner contended that, under the Act (Rev. Statutes, chap. 171) which enabled the Chief Justice to reserve the case for the opinion of the Court, we had authority to go beyond tho question submitted to us, and decide upon the sufficiency of the evidence to convict the prisoner, and several cases were referred to to support his position, which I will hereafter examine. The language of chap. 171 is confined to questions of law that arose at the trial. (His lordship here read sec tions 99, 100, » Po'l^o' ^^ confirmed Th " '"''• *'"' "°"'''="™ """^ '"'^^ •>"» wer« *atn« r/J "-^ — J-=^^ vuu upon ine ODjeotions which were taken at the trial. The defence was, that, to put a hand 122 THE QUEEN v. DOWSEY, DOUGLAS, et al. into an empty pocket was not an attempt to commit a felony, and that, as it was not proved affirmatively that there was any property in the pocket at the time, it mnst be taken that there was not ; and, as larceny was the stealing of some chattel, if there was not any chattel to be stolen, putting the hand in the pocket could not be considered as a step towards the comple- tion of the offence. The law, as the counsel for the prisoner in the case contended for, Avas upheld by the Court, but when the question, that it was not proved affirmatiyoly that there was property in the pocket, was considered as a fact for the jury, and not having been submitted to them, slight as the evidence Avas upon the subject, the defence prevailed. This case, instead of supporting the position of Mr. Johnston, is, in my opinion, directly against him, and shows that, where there is any evidence for the jury, they have the right to pass upon it, and that the Court of Appeal will not interfere with that right. There were two other cases cited at the argument, Begina v. Giles, 11 Law Times Hep. 643, and liegina v. Smith, 12 Law Times Rep. 608, but as they have been fully referred to by the Chief Justice in his judgment in the cause, I will make but a slight reference to them, particularly as I do not think they avail Mr. Johnston in his argument for the prisoner. (His lordship here referred briefly to these two cases, and then continued as follows.) In the case before this Court, if I could bring my mind to the conviction that there was but a mere scintilla of evidence to justify the conviction of the prisoner, I would cheerfully assent to its being quashed. Where there is not any evi- dence, — or a mere scintilla of evidence, which amounts nearly to the same thing as there not being any evidence in a crimi- nal case, — I would then say it came within the scope and meaning of the Act which authorizes questions of law to be reserved, and decide in that case there was not any legal evidence to convict ; but that is a very different case from the one wo are now called upon to decide, where, in ray opinion, there is a large mass of criminating evidence, and which was exclusiveiv for the iurv to nass unon. The evidence having been returned to this Court, with the case reserved for our opinion, it is unnecessary for rao to MICHAELMAS TERM, 1865. J23 enter upon a minute investigation of the facts established at the rml. It ,s sufficient for my purpose to say, that, after much care and deep anxiety in examining the evidence I have come to the conclusion that it established such a caso agamst the prisoner as prevented the Chief Justice from withdrawing it from the jury, and that it was of that charac ter under the direction they received from his lordship, which made it peculiarly their province to decide upon. Among the objections urged for the prisoner was that the witnesses for the Crown varied in many of their statements respecting what occurred on board the vessel upon the morn- mg of the murder, and I admit they differed in the narrative they gave of some of the events of that unfortunate morning- still their statements did not amount to a contradiction except mone or two instance,., but simply a want of uniformity in them ; and in the main and important features of the case they substantially agreed. We must not forget that one of the wit- nesses was a foreigner, and from the manner he gave his evi- clence spoke the English language imperfectly, and also taking into consideration the excitement produced upon him when informed of the death of his captain, using his own words, he I'^l „ ^;as frightened and shook; I could not get out of the berth. Under these circumstances, it is not very astonish- ing if he forgot many things that were said and done upon the occasion; but after all the credit of the witnesses was with the jury, and their attention was drawn to that flxct and they were told by the Chief Justice that their evidence should be received with caution. And the jury had the power 01 rejecting the evidence altogether and acquitting the prisoner, but thig they did not do, but exercised their legiti- mate functions, and gave weight and efficacy to their testi- niouy. Wills on Circumstantial Evidence, page 222. in speak- ing of variations in the relations by different persons of the same transaction or event, in respect of unimportant circum- stances, says: \' They are not necessarily to be regarded as Hidicative of fraud or falsehood, provided there be substan- ual agreement in other respects. True strength of mind consists in not allowing the judgment, when founded upon convincing evidence, to be disturbed because there are imma- terial discrepancies which cannot be reconciled. When the ^ 124 THE QUEEN v. DOWSEY, DOUGLAS, et al. vaat inherent differences in individuals, with respect to natu- ral faculties and acquired habits of accurate observation faithful recollection and precise narration, and the important influence of intellectual and moral culture, are duly consi- dered, it will not be thought surprising that entire agreement 18 seldom found amongst a number of witnesses as to all the collateral incidents of the same principal event." And Lord Ellenborough, in Rex v. Lord Cochrane, Gurney's Rep. 456, said that the general accordance of all material circumstances rather confirmed, by minute dive-rsity, than weakened tho general credit of the whole, and gave it tho advantage which belongs to an artless and unartificial tale. It will be seen, by the writers I have referred to, that varia- tions in the relations, by different persons, of the same trans- action or event, are not always to be regarded as indications of fraud or falsehood, provided there be substantial agree- ment in other respects, and the jury have so considered the discrepancies in the case against the prisoner, otherwise they would not have convicted him. Besides the variations I have referred to, Wills, page 224, says :— ♦' Still less are mere omissions to be considered as necessarily casting discredit upon testimony which stands in other respects unimpeached. Omissions Pre generally capa- ble of explanation by the consideration that the mind may be so deeply impressed with, and the attention so rivetted to a particular fact, as to withdraw attention from concomitant cir- cumstances, or prevent it from taking note of what is pas- smg." Now, if anything was likely to take the mind from minor events, and deeply impress it with a particular fact, it would be so in the present case. The murder of the captain of the vessel, under the circumstances detailed by the witnesses would naturally leave the mind incapable of receiving any other impression than that fixed upon it by the horror of the event. It has been urged upon us that there was no evidence for the jury. But were they not to decide upon the acts of tho prisoner throughout the bloody tragedy of the Sunday morn- ing when the deceased was murdered in his cabin, within a few feet of where, it is said, the prisoner was in his berth, and might have been conversant with what was then ffoinir on. his state-room being partially open at the time. (His i ovidenc< I hav( most str for the j justified OH Crim% nal case, sists of being cht res gestce guilty mi nothing i rule is foi draw suci the grave safer guid which are must be c fairly said which no i of a jury.' Whatevi case, and have been tween the i a question the jury a by either o before they There is jury is in c addressing whether, atl cumstances than that th cannot, it it can, then yo ^11 that can such proof I MICHAELMAS TERM, 1865. jgg (Hi8 lordship here referred at considerable length to th« evidence, and then concluded as follows.) I have referred to such narfs nf ♦!,„ -j vtMc«ce, says (p. i«) : »in ahnost everv rrimi r" "V ;'"'.'''"" °f "'° P^'-'y. either befure or aZ ritTrt"'^ o.Te„oo, presented not as ;jofl gumymind. • » In weighing the effect of such evidence fairly sa.d that this is a very usefnl kind of evidence and on! *o Wndge need seek to withdraw from the rs'ideli:: We be ,,, .^theT.', ^LrS^bi: «e„ the evidence of the boy (Stockwell) and MarlbemfJU question of deep importance, and if it left on the SHf yeiro °th e':'.*^ truthfulness of the statement gtn by either of the witnesses, they should have hesitated Ion ir before they convicted the prisoner. es-raiea long There is abundant authority to show what the duty of the jury IS in crimina cases. Mr B P.rt .•„ t r,, a.)dtessing the jury said • - The nlif' T^' '"^' '" ..1 11 "^j"ry, »aia. Aiie point for you to considftr ia wlie er, attendnig to the evidence, you oa^ reconor he « ! tban that the prisoner has been guilty of the offence? If y„° «nnot, It IS your bonnden duty to find him guilty- if you ^n, hen you wiU give him the benefit of such^a upL, itfo„ All liiat can be rennir»,1 ,-. n„. .k.-i-i. . ... " ""fP^s'Uon. SUM, n,„„f . ■'" "" ""="«"". positive proot;— but 8«ch proof as convinces you that the crime has been made 126 THE QUEEN v. DOWSEY, DOUGLAS, et al. out. If tlicro is any reasonable doubt of the guilt of the ac- cuaed, he is entitled, as of right, to be acquitted." Thia rule is 80 universal in its application that I do not believe it is over omitted by a Judge in his charge to the jury. Wills ( Wills on Circumstantial Evidence, 154,) says, " The douut however, must not be a trivial one, such as speculative inge' nuity may raise, but a conscientious one, which may operate upon the mind of a rational man, acquainted with the affiiirs of life." Those rules cannc. be disputed. They are intended for the guidance of the Judge in his direction's to the jury, and it would be wise in all cases if the jury were to adopt and act upon them. In the present case they have not been omitted by the Chief Justice in his charge, and it is not for me to say that the jury did not allow them to have the proper weight and influence before finding the prisoner guilty. My authority, as I believe it to be, is not to question the right of the jury to decide the guilt of the accused when there is^suffi. cient evidence to give the case to then: ; and, as I think, there was legal evidence in this case involving the guilt of the prisoner, it was exclusively for them to pass upon it, and the verdict, in my opinion, cannot now be changed by this Court. In the language of Lord Mansfield, already referred to, « it 13 the duty of the Judge to tell the jury how to do right," (and it cannot bo denied but that, in this case, be did so,) " though they have it in their power to do wrong, which is a matter en- tirely between God and their own consciences, but there it must rest." The Crown alone, and not this Court, can give any redress in such a case. But I wish it to bedistinctly under- stood, that, in this case, I give no opinion upon the question of the jury having done right or wrong, because I think. under the law, I am not called upon to do so. DesBarres, J. There is no direct evidence to show that the prisoner was actually present at, or that he took any active part with the cook (Dowsey) in the murder of Captain Benson, and, therefore, it remains for us to inquire whether the circumstantial evidence produced on the part of the Crown, upon which the conviction entirely rests, is such as to warrant the jury in drawing the inference that there was a concerted MICHAELMAS TERM, 18G5. 137 design between the prisoner and Dowsey to perpetrate tl.n murder, and that, although he n,ay notLe'X act,! present, ho was, in construction of law vvo.SZa ^. behove tb„ rnato know what the cook wat d ,1 1, ^'^^ -that t oy two had actually formed the dcsigl, of „„,,„" away w.th the ship, and that, to aocompli,,. this ob ect h! till tlie ira. d,d not Bee the crime committed amounted to «oth,„g, ao^ that, if they believed there was a cZmon de! V, hav,ng the murder as part .f it, that was enZh to uculpate the prisoner. The jury, acting upon these instuo" ..ns and be hevng, as we must presume they did from the facts before them that there was a common erimina dlii to take the I.fe of the master in order to obtain possession of the Bh,p pronounced the prisoner guilty of the crime ZLd «S«.nst a,m, and the question to be considered ", Ser In 1 natips onEvideme, 1G6 (7th ed.), it is said : '• When nect cvdcnce of facts cannot be supplied, as mus condr a ly happen m some of the worst specie, of crimes reaZ able mmds w,ll necessarily form their judgment o^' drc , I »tauces, and act oa the probabilities of a case The « bit system of human action proceeds on probab, Ity ■ and t malhemat,cal or absolute certainty is selSom to if atta Led in aman affairs, reason and public utility require tharjud 's and al mank.nd, in forming their opinion of the truth of facts should be regulated by the superior number of probabimies on the one side or the other.' " ., P'^oa^'HUes , l^l "'^'""'" °^ "^-^ '^^-J'-S fa"'' of 'Ws case, upon which I ahall make no comment, may thus be stated. H,s lordship here referred briefly to the evidence affecting Douglas, and then proceeded as follows.) ^ rai;hrif '!,""'? f.'^Tl*"""^ P"' tog^'ter, I think the jury ra.ght, .f they believed them to be true, draw the inference of omphc.ty between the prisoner and the cook. ., ',• it was argued bv the learnod A/>„n.„i r„- .i , . .....«,,.v. x-jt tuv prisoner, liiafc 128 THE QUEEN v. DOWSEY. DOUGLAS, et al. what the mate said, and what he did, were under the influence of fear, and that his conduct, strange as it may appear, was therefore not inconsistent with the hypothesis of his inno- cence. It is possible that he may have acted under that ioflu. ence ; but the answer is, that this was a matter for the con- sideration of the jury, and not for the Court. Assuming that there was evidence proper to be left to the jury, — and I confess I do not see how the ciroumstances to which I have referred could have been withdrawn from their consideration,— I do not see any ground upon which the Court can interfere with the verdict. My own impression is, that this is not a case in which the Court can step in and nullify the act of the jury, nor do I see how such a power can here be exercised without taking from the jnry the constitutional right which they possess of passing upon the facts. I admit that, in a case entirely unsupported by evidence, such a. power does exist, and that it ought to be exercised ; but where there is evidence, though it may not be of a conclusive character, and a conviction follows, then it appears to rao that this is not the tribunal to appeal to. There is another to which an appeal may more properly be made, possessing ?. power which is not possessed here, and where, I feel assured, all the evidence and circumstances of this case will be tho- roughly weighed and considerad. I do not, therefore, feel myself called upon to say whether I approve or disapprove of the verdict rendered by the jury. It is enough for me to say that I think there was sufficient evidence for their considera- tion, and that, although they might, if they had thought fit, have drawn from it a different inference, they were at liberty to draw that which they did. They were the sole judges of the evidence, and knowing that H was their imperative dnty to acquit the prisoner, if they had any reasonable doubt as to his guilt, they have, in the exercise of their own judgment, 8ud, in accordance with their own convictions, felt themselves constrained to pronounce him guilty. With them, then, tlio responsibility attaching to the verdict must rest. In 1 Oi-eerdeaf on Evidence, sec. 49, it is said : "In trials by jury, it is the province of the presiding Judge to determine all questions as to the admissihilit.v nf Avirlanoa f^^ ^u^ ;..«.r as well as to instruct tbem in the rules of law by which it is MICriAEI.M43 TERM, I8IIS. jj. .» bo weighed Whether ,her„ bo any ovi.Ienco or no, U « quest, „„.„, ho J,„|,.e; „,,„„,„, ,., .^ ^0. « TV ' , "'° ''">'■" '■'''" l"'"-l''" I-™ o„„„ ticl i" that by which we arn niwl i,...^» i , """"^"'"t-u is r..;.;o,.erthec,f;;:,;n::;4'=;:c\i^^^^^^^^^^^ The ™«os to ,vh,ch ,„ir „ttenli„„ wa» ,lireotu,l ut ih Tl ™.n. y the ie,u.,H.,I .„„„el ,.„. „,o ,.,.,■.;,'„' rfj lordship hero re'wrod a t.'o it h I'Thf ""•• ""'•. '"'" ti».t 1,0 thcght i, Hhowed two t,7,,L fi .rT"'-;"" 'f tl,- C,>„rt to docido the n„e,ti , o^'l" ' ' " """' ^"^ »ec,.„dly. thut i„ „ case whc," , 1 i '". "'""' ' ""'' «'ido,.eo to .,pp„. .he ^!z:^z>^:;:z.^:r "' Je„ce,i, ought „o(bo left to the fun 11 si ,°"'' referred to Ite^ina .. Giles. U U^J^L E p 3 l""" v.i.„,«.a< ,0 do., sr„, a„d licjina v. M^; i'hif?sT »»ot support it, although it was conceded by tho Court of Appeal that the Judge had exercised a sound discretion in not stopping the case. It was for miin- glaughter, in neglecting to prt)vide proper food and ledj^iiig for a servant. It is important and very suggestive as regards that before us in tnis respect: In it, it became an important question "whether tho deceased was so helpless in mind and body as to bo tinable to take care of herself, and to withdraw herself from the prisoner's dominion." On that vital point ol tho case there was professedly some evidence, but the Court quashed tho conviction because there tvas not sufficient evidence. In liegina v. Giles, 11 Law Times Rep., 643, tho learnod Judge who tried it reserved for the Court of Appeal a ques- tion of law, in terms as follows : — " I request the opinion of the Court whether there was any evidence to go to tho jury in support of the indictment." The Judge put the case to the jury, who found tho prisoner guilty of extorting money from the prosecutrix, by means of a false pretence of an exist- ing fact. Althojgh tho question submitted was wlu;tli(;r there was any ov'denco, Erie, C. J . careful'y exnniined mII die ovidence, and tiic.i said, "Upon tiis evidence I think liiera was enough fur the jurj', from which they had a ri;,!!! to inloi i-.im MrCIIAELMAS TERM. 1865. ,3, timt tlu3 pri«or,or inton.lod to in.lnco tho pro.ecufriT fn K liovo that sl|.) |„i,l novvnr Ml.<. • .• {"^"^t-ciirrix to be- aminerl tho vvh..lo of th„ ovi 1 '.*'"'; "^ AppH,,! ex- bef...e . .j„,v ,•„ „.,;, .„':;:;,::?,; .:;: •":',' -- viewed it, all its mrt^ -uu] ... .. 1 , '^'"''^ ^'"'^ ovidcnco, .ier. I„ ex,„-oi,i„g that funcion ,o .lolo...^ T 1"' '",";- was cnformablo to the old nr-wfl. 'V , "'* "^'^PP^*a> oriminid trial doubted ahn,,^ ., . . , J"%o at a t.xwwjMi It, a pardon was rooomrauiKl,.,! ti P"«"..c.r was, i„ s„el, ease, ,li»cl,ar,.e,l a„7 »" .-, '° L.g.sla,uro tl,i„ks proper ,., ,„ak„ ,,,„":'""; ;;• """ •;''» lie ""Kl.t t„ ho; for every man is, i„ „,„ 0,^ ? "°'' ■■'■■''■ oent, until be is proved ,„ L sui Itv 1,7 » • ' "'"°- oviiicnco. ^ '^ ''^ sufficient legal It is not for Judges to speculate alioiit tho nol.v^ f , b"t 1 amy say that I view the law n„d r 1,1^^ "' " '"^ rev,sn,g this criminal trial as a wise and sal, ...v "' T, d" ;■>. think it ,n all |ik„,, „, ,,„ ZVoiZ -^ ■»■."'".•" 'I^'l" ' .!.» discretion „ e rf IIT'"- " «'i- .n wl„„„ M,e C.n,s.i,n,i ., „ , ° I , , """■ l),.n„d,.,l c...|B-l-„- • ■ . I '■'"^•"■"•'' ''""ts i,i„l an. "••■'■■-"'=• •'""•'^, "• v.ew ot ll,„ solemn res,.o„. 132 THE QUEEN v. DOWSEY, DOUGLAS, kt al. sibilitios which attach to tl)em in criminal cases, especiallv in capital ones, will, I am persuaded, bo only too liaf)p} to be thus in iv measure relieved of them. No one can af)pret'iate or respect more hij^lily than I do the peculiar province of h jury in criminal *rials. Where the Kubject of its exercise is the credibility of a witness, or the truth or falsehood of a fact respecting which witnesses have ppoken in conflict with each other, I accept as final the decision of a jury. IJut, although in the exercise of thc'r functions they must neces- sarily, under such directions in point of law as thoy may re- ceive from the presiding Judge, decide in the frst imtnmt on the mixed question of law and fact — in other words, on the legal sufficiency or insufficiency of the evidence to sus- tain the charge against the prisoner— there never whs, sinco the Revolution, a time in the history of criminal jurispru- dence in England, that their decision on that point was con- clusive; there never was a time in the intervening period that a Judge conducting a criminal trial could not, in his dis- cretion, obtain a judicial review of the finding of a jury con- victing a prisoner, if he doubted of the legal sufficiency of the evidence to sustain the conviction. The means by which that object was attained was, as has been shown, dilferent from that ^vhich may be adopted since the constitution of a Court of Appeal. It was the anomalous character of the old system which led to the introduction of the new one. That which before the enactment of the Imperial Act. 11 & 12 Vic, chap. 78, was done somewhat extrajudicially, by taking the advice of all the Judges to satisfy the con- science of the presiding Judge, (/^,9coe'« Digest of Criminal Evidence, 216,) is now done by the compulsory and regular judgment of the ''Justices and Burons" on a case reserved. The Statute furnishes not the slightest ground for the infer- ence that the Legislature intended to institute any change in the nature or character of the questions to be reserved. Let us see, then, what the previous English practice in that re- pect was. Russell (2 Itussell on Crimes, 725) states it thus:— '• If the Judge who presides at the trial shall be of opinion that there is a doubt whether he may not have admitted some evidence or witness improperly, or whether the facts proved comiiiiiie ike crime chargedf"' (woi'U» wiiiuli iucludo this very case,) * he may Judges the pre change was dtiM ride a h given h\ ter Sessi visions f not a wo tiiat the cult quest practice Revise Judge b( felony, It T T" '"" """'' '■"'■ """^i""""" I avail my. ""Il ■ .t, no only a, app|i,,.blo to the particular ease, to .v.de, ce ,n tins l,,st; but as proving our jurisdiction to in jur) have (o„d the.r ve,dict against the n.ate. " Two wc ::i:z. .".•";"""' '^ «?.'-•"« ^' »'"•"■"« » -pene; z tVe ;.oi'niL T,' '■"".";•"""«■ \""<""-"m. ai.ling, ami abetting the counng. The evidence against him was. that he visited 134 THE QUEEN v. DOWSEY. DOUGLAS, et al. them onco or twice a vvook ; tliiit tlio rnttling of copper mo- ney was heard whilst ho was with them ; that oiico ho was counting something; just after he came out: that on gnin}; to the room, just after the apprehension, ho resisted heing Stopped, and jumped over a wuli to escape; and that there were then found ufum him a bad throe shilling pitsce, five bad shillings, and five bad sixpences." Upon a case reserved the Judj^c^s thought the evidence too slight to convict him. Bex v. Imacs, i\J. S. iJavIey, J., Ilil. T., 1813. Now, assuming that what wo are required to do by the Statute is precisely what we might have done at common law on a case reserved.— I ask how on the point of juiisdiclion the efTect of this last mentioned authority can be avoided? In it the fifteen Judges of England inquired " whether the facts proved constituted the crime charged— which was coun- selling the coining." In this, what I feel myself bound to investigate is, " whether the facts proved constitute the crime of counselling, aiding, and abetting the murder." The Courts at Westminster administering criminal justice recognize certain rules or maxims as necessary guides to juries, where the charge before them is sought to be sustained by circumstantial evidence. I will not take upon myself to pronounce that they have the absolute force of law ; but I will undertake to say that without a strict observance of them criminal justice cannot be safely or legally administered. Wills, in his admirable treatise on Circumstantial Evidence, thuH introduces five rules of induction which ho fully explains (p. 136): — "Inasmuch" he says, "as the rules, which philo- sophic wisdom and judicial experience and sagacity have re(;ognized as safeguards of truth and justice in general, apply with peculiar pertinency and force to circumstantial evidence, it is necessary briefly to advert to some of the more important of them ; " and he thus concludes his con- sideration of them, (p. 155)— "It is from the practical dis- regard of those rules, rather than from the nature of the subject, that have proceeded those lamentable failures and violations of justice, which have occasijnally disgraced the pages of judicial history." I am prepared to maintain (and that is the point oi Jurii- diction which I am now considering) that wlioro it 8hall be MICHAELMAS TERM, 1865. 135 mn.le to appear to the Appolluto Criminal Court, in any reserved case depending on circumstantial testimony and tlierofore on the doctrine ,)f liyp„theses. that those nlaxiras have been plainly disregarded hy the jury who convicted tho prisoner, that Court is bound to decide that the evidence ia not legally nnflicient, and that tho cotjvietion should bo quashed. It is, indeed, so very important that sound prin- ciples of construction of circumstantial evidence in criminal cases should govern jurors in the discharge of their duties, and forensic annals roconl so many instances of innocent victims of that sppcies of evidence, when not rightly inter- preted, that I gladly avail n)yself of an opportunity thus afforded of explaining, in coiniection with the facts before HP, certain maxims necessary to he observed in criminal trials, where tho evidence against a prisoner is purely circum- stantial. Tn doing this. I disclaim all intention to reflect on the manner in which the twelve good men, who constituted the jury in this cause, discharged the painful dntv that the law impos.jd on them. Had I been one of them," I believe that I should have concurred in their verdict convicting Douglas. I think that tho testimony, viewed as a whole, would, after the com|mrativeIy short period for deliberation that was at their command, and without that searching analy- sis of testimony which they did not, perhaps, feel it necessary to nistitulo, have mady tho same impression on my mind that it made on thi i s. Now, however, after argument at the bar, and aftf ^ -;ghing and discriminating the evidence, I cannot infer tho p.fsoner's guilt from the facts relied on as inculpa- tmg him. Whilst I am, of course, aware that he may be guilty, I can entertain, in perfect consistency with all the farts, that which 1 believe to be a reasonable hypothesis of his innocence. In such a case the prisoner is, in my of.inion, by tho law of the land entitled to an acquittal; and should he HI that case bo convicted, a question whether the conviction can be sustained must be, from its nature, a question of lata. One ( f tho greatest Judges that over adorned tho English bench has recorded, expressly as a wartn'ng to Judges and ju- rors, a case sln.wing the danger of convicting, in a capital case, on circumstantial evidence, "without first considering with the utmost carefulness every possibility of an unproved state 136 THE QUEEN V. DOWSEY. DOUGLAS, et al. of circumHtiinces existing; wliicli, if proved, would reasonablj account for all tlio facts, and yet estahlisli tlio prisoner's in- nocence." A child was placed under the guardianship of an uncle. He was provj-d to have slijjhtly chastised her; she had heen heard fo exclaim, " Oh I dear uncle, don't kill me I '* The child was missing; suspicion altached to the uncle; he was arrested and bailed, with an admonition that at the next assizes he must produce the child. He, then, produced a supposititious one, which was proved to bo such. On these facts he was convicted and executed. IJe was innocent, however, for the real child, many years after the execution, re-appeared, having run away from the prisoner's house. Now, that jury improperly convii^ted that innocent man, be- cause they did not put to their minds and answer these two hypothetical questions : First — "May not the missing child hav witliflrawn herself from her uncle's house, and bo still living?" Second — " May not the jjri.souer, from fear arising from consciousness of the suspicious circumstances of his po- sition, have resorted to untruth and subterfuge?" Possibly. they were suggested, but derided and discarded as " light. trivial, or fiinciful.'' But they were founded in reason and fact, and had they been acted on an innocent man would not have suffered. There is in tlio case before us no direct evidence that Douglas, before, or at tho time of the homicide, concurred in it, or assented to it. Ilis conviction, therefore, rests on evi- dence purely circumstantial. Mr. Baron Alderson's rule in such ca.se8 has been commended by high authority as one of com- plete exactness. He said in Bex v. Hodges, 2 Lewin's Criminal Cases, 227, (cited in Wills on Circumstantial Evidence, 150, 151,) " to enable the jury to bring in a verdict of guilty on circum- stantial evidence, it is necessary, not only that it should be a rational conviction, but that it should be tho only rational con- viction which the circumstances would enable them to driiw." Tf guilty at all, Douglas is guilty as principal, present (actuall)- or constructively), aiding or abetting another who committed homicide. To estiiblish his guilt as such, there must be suf- ficient evidence, not only that he was present at the slayirg, but that his mind concurred in the intontii)n that it should be committed. He was not, necessarily, even constructively MICHAELMAS TCFIM, 1805. 137 present, for l.o could only have been so on M.e condition en- t>roly unproved, <.r luvinj; been awake, and cunseious of* ti.e T,..bM,ee of tbo cook. IIo ba re-appearance on deck. He may bavo been in a profound sbep, and ur.nonse.ous of tbe bomiei.lo. JFo was certab-ly J„ the cabm wben the fatal violence wa« done. His precise no 8it.on ti.ere.n, at the time of tbe bomiei.ie. relatively to' the deceased .s unknown. Wben Stockwell saw tbo cook in tbo capt,unBbertb,besa>s, "tbemate was in bis stateroom, of wh.ch the door was closed within three or four inches " ( His lordsh.p hero referred at great J"n«tb to the evide- ,., co.n- ruented largely thereon, and then conch.ded as foMows •)-. Dm.Klas's acts and language must bo considered in view of the following suf.gostlvo sentiments of great jurists mns,\u bis learned essay on the Principles of Circumsfan- hal Lvideuce, after remarking that acts of conceabnent, dis- giuse fl.gbt and other indications of n.ental emotion, are usuilly foun.l ,n connecti.u, with guilt, adds, - thes<, are in all their mod.m-at.ons, in.lications of/e«r; but it would be harsh a..rl unreasonable invariably to interpret them as indications of gu.lty conscousness." " Doubtless," be continues. - the man y carriage of integrity always commands the respect of mnk.nd, and all tribunals do bon.age to the great principle trom wh.cb consistency springs; but it does not foHow. L cause the moral courage and consistency, which generally hc- company the conscio.tsness of uprightness, raise a presump. t.on of innocence, that the converse is always t.ue. Men are dilferently constituted as respects both animal and moral c^r)urage, and fear may spring from causes very different from hat of conscious guilt; and every man is, therefore, entitled oa candid construction of bis words and actions, partica- larly , pace, in circumstances of great and unexpected (lifliculty. The same learned author subjoins this forcible obHcrvat.on :_.' Tbe co..sciousness that appearances have been suspicious, even where suspicion has been unwarrant- .•ibe has sometimes led to nets of con.luct apparently incom- paf.ble with innocence, and drawn down tbe unmerited inflic- .0.. of the iigbest legal penalty." The following sentiment, expressed bv liim U "i^^ trs-r ~\ r ■ • •■ • tb case under review. Ho «ays;-" Every consideratFo;. of 138 THE QUEEN V. DOWSEY. DOUGLAS, kt al. truth. jiiRtfno, nnd prndenco roqnlrort tliaf, whoro tlio ^Miilt ol tln! Mcciised it* not iiicoiitrovortibly established, however rtiig. pieions his conduct may have heon, he shall be acquitted of le|?al accountability." Again, in a warning voice, ho reniindg us that Runiilly condemned the execrable maxim of Paluy, '• that he who falls by u mistaken sentence may bo consi**<-" 8 sianto or m.s iia« iiiir at-if^/i ♦,. *i a. . ■"-■mu ".a" >l.e deca.,.*,,. •, I '""'' """ """"""^ '"■" fn„n ■. „l,;.,r ,1 ' Pf'i»cM,Cf, poured BoinetlMnc causB n, Has llioie is » proved nm.,.f „f fi . • '• , \y from 11,0 mule, and l.eoau.e a. T! V "'^ '""»"^»'" '"-""■ct .U.n,x.sreliedo„lv,TrCr;,m, 7 ?" "'"""•"'" '='''-'""'- of .1,, part,„„|„r pr„„„er', cmplicitv ,,, t|,„ ra„rder Such ZmU-mUi, .. ! • . ,, ° """ ."tended, a, we are told to" I 1 ' " '°''''" "•>" "P""'"". strikingly elmrac- r..™ ,r'"'', ° '■""-' •"=''""«'l "" board tho Zero into -.-A a. . ».„o,e, or regarding any one of then. »i„gljr, 140 THE QUEEN v. DOWSEY. DOUGLAS, et al. tlieri* iH not one tliat can bo shown to bo " wtrictly and ind,,. bital.ly conno'tod with an assumod ant of hornifi.lJoii th.> |,:irt of Don^rlus." Viowo.I ill coniio* not ono of thorn that possossos nio'ro weight in tliJ legal scalo of evidenco than that of a mere conjecture, or of a tintljahilitv. Tiiirt nn'.appy man has nnqno.stionahly committod, on hoard tho vfr "1 in which ho held comnjand, acts in tho highost degree criminal, acta for the commission of which, hu foars however well founded, constitute no legal excuse; acts, too,' for tho perpetration of which i.t is most desirable that |,e should 1,0 punished But ho has been convicted not of those, but of tho orimo of murder. Iti resp<.ct of that crime, sub' stantiated. if at all, by circumstantial evidence, there existed in my opi.n'on, when the jury retired to deliberate on the case, an hypothosis of his innoc(Mico, not a light, trivial, or faucifuj 8upp.>sitit)n, orarouioto conj(*cture, but ono which the jiirv shoidd have regarded as a reasonable hypothesis, pres.M.tinj; all tho inculpatory facts in proof, as not incompatible with the innocence of the prisoner, and noc incapable of explana. tion on that hypothesis. 1 am deeply impressed with these learned and philosophic wonis „f Mr. Starkie, ^Stark,eon BvUence, Sharswood's edition, p. 760): •'The force of circumstanti il evidence," ho says! " being exclusive in its nature, and the mere coincidenco ol the hyptithesis with the circumstances being in the abstract insufficient, unless they exclude every other supposition, it h essential to inquire, with the most scrupulous attention, what other hypothesis there m; -r be, which may agree, wholly or partially, with tho facts in evidence." This very inquiry I have to tho best of ray ability con- ducted, ami tho result under tuo duty imposed on mo. as I conceive, of revising tho verdict of the jury cunviding Douglas, is the opinion that that conviction must be quashed, as there is no legal evidence to sustain it. Conviction sustained. MICHAELMAS TERM, l.Cfi. 141 TOBIN V. SYAIOXns and Amrnm. January 3, 18GG. .nd i. loH, in „ „,or,„ ....ring huH. ,M.. . n„ Thl f 1 "'""'' "'""' *""' '-"'»« ,h«lea.c.«r«,io.,, .,.e Court will J:^^^^::^^^ ''"""'?"' "'""- "> i«>e K J'l 'giiiont on the domurrer lor the plaintiff. Action for .Urunge. nj,Mi„st tl.o cimrtorers of a vohs.I fnr ,c. .1 to .1,., A,.,ii,. „„•„„,, ,•„ ,L „;„,." ;;;■• c.„„. ,„„I t oro receive a „„g„„f„„„,,,^„^"'P» cl«,„i,«,„, a,„l convey tl,„ „„„„ t„ Halilax ,.f„rL , ' , , I /cn.la,,U ,,n„„ised ,.,,,1 up-ecl to !,„d ti,o said oil " "i t o«u,l ve,,«.| ., „.,„„ ,. „,„ „,,! ,,,„,, „, „■;,»' '-J Ac,i.lia nnnos af„ro«..i.|, a,„l nay tlio nlaintilT t„.„ l ,, ;-. .i,e dc^,e„da .»:;;;;";-:£ ri'irr;:-- »i.l ergo „f coal, on l.oard tl,o ," JI 17 r™'"" ""' *l..„e dofondan,, „„d -10^ nit Zt t'o .tnif ' d"' .»l., not reganling their ,„id pr„,„i,o and „, dor IT L ' loco and refused to load , hi .aid ooalj on ol ,t "°^' vessel for a hmg apace of time to wit f„, .i "*"■ Up.a.,d .„„„ L'ed „„ boaTd't'i e^d':;:, ::;;'';'„--' •f the said eargoot coal,, and totally neg ec „d „„H '^ "1 .0 o„n,,,,ete the aaid cargo, and detail, trfirve::;'; e far her penod of four days, „„i,i„g f„, „„ ,1.° l'/"' [fc a.,d cargo, and that during the sL four las, n'^H i-=;«,a„a Dy tto Uof.ult and negligence of said defendant; -IfitlSL I 142 TOBIN V. SYMONDS and Another. the m\(\ vessel was driven on slioro by a violent pule, nriil be CHino u totiil wreck, aiid was wholly lust to the plaint ill". HefoiKJ count. Thiit in consi(h.nifi()n timt the pliiintin' had promised and agreed, to and with the defendant!^, to pn^-Med with his vesse' the "Deux Angustes," from Ilulihix aforesai,! to the Aca(ha mint ,« aforesaid, an .."t entitle,! to recover the Z T '''"'"""^ ^B. -f .R, 7,2. ,f tirXiariiri: ,,:';:;rrt :':;'t-"'. " ™ j-.«.ne„t for "h .a 'XT :•:":.■;' 2 Saunders, 379: 5 Z?oid 317 Tl. ,' "';^'"^" ''* K'>"^». of Hct.on. McLachlan o , ^/.,>^,/,^, 4^5 «"^«t«"tml cuu.o ^. // Harrington, ..„ the sumo .i.lo. The defenflmf «1 m onl.v .Jemm- to tho defective assignment of the b" 1 1 ^ i-.fiicio.t count ; if he were to de, nur o e Jhd V"", '" ^ce Act of a count for demurrage states so many davs at To "•"•I' H day, etc. ; iu fact sets out a regular coiftrlc Tl ? w ii'.r dune hero. fYouxr P I ti .• ^^'"'^'*^^- ' ''at Aft arc moroly oxamj.lo.. .See section ot.J "'^ 6'«/-. ado. vult. 144 TOBIN V. SYMONPS and Another. YotJNO, r. J., now (1(,-Ilverorl tho jiidf-intnit of tlio Court. Tlioio Ik little floiiht tliiit tho m»I purpose for wliich tiiis jiclic.n w.m l.ron;,'|it whm to I't'cnvor llio vuluo of tlio vchsoI. Mr. iniiiK'linr.l, lu.wovL'r, u.lnnttiM] at tlio ar^'uincnt tliat th, loKK of tho vessel, wliotlier it occurred as stated in the (Ie(•||^ ration or not, waH too remote a dumage to form the Kuhjcctol the action. Tho ease now then turns solely on the quOntion of pleading, whether tho declarati.ui is sustainahjo wla.r.' purl of it is had, and the whole demurre"'■ "'- a verdict for „,„ dofonda , ; '-'.rZa , ° ""i *-'""' "- 11,0 notorial fac. are 8uffic=.„tlv ," " '""■ rf .1,0 Court. ""^ ''^'- «"' '" .1,0 judgment Blanchard, Q. v., for defonda • . Tl,„ . • • FOi'o",. ,„ the ohaiu after tl,o li(. m ., t"""^ '""> "o l»82- Even if |,e I,ad M, 1 «"'"""' ""'fo „. Deoembor «."ia"t. „ifo diJi'':-::;!,",,";,:,*''-™'^ -^ " '» possession of it. 2 5«;aM(M 02 i z "'° '='""■•<'' or *«. 15 Beav., 529, «C 21 I.' ,T'7' **' ' ^«' v. '2 h.« Tiraes Reports, N. s!f 721 ' '' "''"" '■ «™»( 'wt^;-rt!t JpTs*':: ZT- ^'" r "- ---"• l» an equitable defen^eo, .0 plead it .T'™-" ''"''''""''"" ""'o ™ equi.able grounds." Tharb^ K "'^'."«' " ^"'' •'"fo-oe *"'''n,ado,eari, a, e;:rr;:bt:"nr".;^=i" "•-'•- iu - i'|.« — .'ii gavo iho 146 TANCRED V. O'MULLIN and Anotmeu. chain to tlio wife, moroly tlii\t pIic might woar it, not that shi- conlil Jilicii it. Tlie uvidoncc does not show an alisdjntc gift of the chain to the wife,— it was in tlio husband's pus- 8ew>inn when she was on her death-hod. W. A. Johmtou follows on the same side. The action ha.s been brought as a common law action, and defended as sncli, and the defendant has now no right to an equitabhi de- fenee. I call on your lordships to decide on section 43, just referred to. (Cites 1 JVilliams on Executors. G81, ()85). There is an important distinction between gifts by a husbaiiil to a wife of paraphernalia, ami of other things ; for she may dispose absolutely of tho former, but not of the latter. The chain in this case is part of her paraphernalia. Williams on Personal Property, 294 : I Hoper on Husband ond Wife, IGD. Paraphernalia, at the death of the wife, descend to tho hus- band. 2 Roper, 141 ; 2 Black. Com., 43G; 2 Alkim, 104. A wile cannot dispose of |Miraphernalia. Roberts on Equity. 160 240. Gilts by a husband are paraphernalia; by a stranger, are separate property of tho wife. To constitute a gift bv a husband to a wife there must bo a clear, irrevocabU" gift to a trustee for hex benefit. The fact of the b.usbaiul having taken possession of the chain, after he had given it to her in 1862, shows that the gift was not irrevocable. In Meios wMews the words iti this cuf«e were used, but they were held not sufficient. (Cites 12 English Law and Equity Rep., 144 ; 2 S}ience, 501, 602, 507, 510 ; 2 Ram on Assets, 1 12, 1G5 : Smith's Manual of Equity, 423 ; 8 Eng. Law and Eg. Hep., 141.) In Grant v. Grant tho gift was perfected by the death of tho husband. Actual delivery is essential to every gift,* and there must be the assent of both parties. 2 Kent's Com., 601. In all the cases tho contest was between tho wife and tlie repre- sentatives of tho husband. (Cites 2 Williams on Executors, 1062 • Bacon's Abridgment, B. 6.) It is clear that the plaintiti is entitled to the chain, either in his own right or as the guar dian of his child. There is a distinction between our Act (Revised Statutes, chap. 112, sec. 3) whi.di gives the power to a married woman to make a will, and the English Act. th« law. Se« Winter ▼. Winter, 1 Best * 8m5ih, 997.- WiCIIAELAfAS TERM. 18C5. j^^ lilnnchard, Q. Q ;„ -Pnl.T hm i> ii.o i.usi,,,,,^., ,;;„" i !„„;„., "•'■""'^ '""'"' '■" ""-o"'" for .1,,, W„„fi, „f r c M ,;:' "'" ?;" •" '^'-- 0'M.."in U-Hor all ,l,„ cine,,,,,,,, „ :"1":. "'""j", ^^ '- cl,i,,,. ba„.l l„i.l wiel, hi, o,v„ 1,„„I *' ■- " ""'"' "" •' ">" I'W- (Ci... uovi,.,.,, «„„„„,, ';„,:,:;'' ,;""::;"v,'r7."-f"- l,al,a ,n„,t l,o „,i|„l,|„ („ ,|,„ . ' "7- -')■ ' a,a|,l,.r. -t i^isoual Property, 293. ^r. ^. Johnston cites 5 ^cc// ^ss . 01^- C*«;'. atfv. vuh. ^':a::;/;;„rf;'::;;::,-j---;.r..,ec„,,,.,. »IHior to hi, wife Tl„. ;, • ^°''' "'"'" (!'"■"<• l-y a >.a "f ti,o„i,:wI,Lt, : ,:r" '," 'r '-"=" ■■" "•' pe»r» that ,|,„ hu»l,„„d T . "r, ^""i ''" '^'"'>'>- I'"' i' a„. 0'M.,lli„, tho "ifu of o,"„ o ,h,'t;'''f " "''" «'"•" '■' •" »'^f- fall, hod a,kod hor h.„h.„, ' , "™- '^"'"••'■^'l "" lior P'o.luced it. She ,„,'";;"; ,;.'ir ""» ,';." ^•'-".' Ho i"g mo, 8l,o »„id, .v„, Co I ■■ ^.""'"•' A'''^"''- ''«•" "-t u„a; ,.u.'7 " , ;r?t ':/''"""•"' <» inanded of mo. I „„vo it to P..,.; "'"' '""""^ vn» handed ovor hv Mr, T ! '"■'""•""' "••'™ "'e »"H "•, ■"°''- ®'"' "^l""' '"r it, - .«a ,„„d; i/no.-irp;^".^-:.''-^ 148 TANCRED r. O'MULLIN and Anothek. O'iSftillin rocoivod it, iind took it awivy. Sorgt. Wostcott lias tlio cliiUl, who is ubout j«.i.x year-? old. Mrs. Tuiiorod diod on Saturday week after tlio Tliursday wlioii the chain was de- livered. Plaiutifi*, when ho produced the chain, said, * Here, I'ollv, is your chain.' " The learned Judj^o who tried the cause called the attention of the counsel at the trial to a recent case {Grant v. Grant, 12 Law Times Rep., N. S., 721), which seems to decide that a wife has a more extensive power over articles tr^.; sferred to her hy her husband than has been hitherto suj)j)0sed. Wo are pleased to find that wo are not obliged to review that (piestion, as it does not arise in this case, nor the point about paraphernalia which was taken at the argument. Here It appears clearly that the wife on her death bod, in the presence and with the assent of her husband, delivered the chain to a trustee for the benefit of their child. We hold that under these circumstances, oven supposing the title to the chain at that time to bo in him, the delivery above men- tioned bound him as a gift inter vivos. It appears from 1 Parsons on Contracts, 20\, that a gift by a competent party raado perfect by delivery and acceptance is irrevocable by the donor, though if it bo prejudicial to existing creditors it in as a transfer without consideration void as to them. If. therefore, the husband had himself given tho chain to tli< trustee, tho gift would ha;o been irrevocable. The same doctrine will bo f'mnd in 2 M. & G., 691, note a., and in IVil Hams on Personal Property, 33, and 2 Blachtone's Com., 441. Wo therefore, hold tho gift in this case a gift inter vivos. As it appears, however, that tl«e defendants have really no in- terest in tho chain, wo direct that it bo brought into Court and held for the benefit of the child. Judgment for defendants. Attorney for plaintiiT, ./. H. Weeks. Attorney for dotondants, Blanchard, Q. C. A f\ MICHAELMAS TERM, 18Co. 149 AtlSTIN V. BOONE. Januanj 3, 186(5. Where a party enters into a wrifton nsreotnent nnder seal lor il,« «>» r ^.n a.„o..„t or ..„ ,.u ri,ht. ,i„o. nLure. La inter ^t To i.il? "" i«/.c/i>*an. in suo^wB of rnlrt Tlin r^/M'«r ;^ ...i.^n.^l n MICHAELMAS "ERM. 1805. jgj nmy not bo a cotomporaneous collateral verbal agreement in ad.I.t.on to a wntten agreomor.t. 1 am aware of the general principle winch excludes parol evidence to affect a written agreemen . but th.s cane i. an exception, The defendant's agreemen .s ,n audit.on and collateral to the agreement u.,.K.r seal. Taylor on Evidence, sec. 1049. The question s^juuld have been left to the jury. Lindlei, v. Zacey, 11 L.av Tnnos Rep., N. S., 273 ; i H. ct .V., I ; 4 L,.. 459 T, Za" 2.;.e. i?e^or^., .V. S., 489, S. C, 1 1 C. B., N. S., 369 ; 6 FL cf- BL, 370 ; 7 ditto, 503 ; 17 C. B., G25. Solicitor General, contra. The rule is clear that parol ov.dence w.II not be admitted to vary or ad.l to a written con- tract. It this case is not within that rule, I do not know wlmt cases are w.tlun it. Taylor on Eoidence, section. 1046, 0^^5; 2 niachtone^s Rep., 1250; 1 Qreenleaf on Evidence, 3.9; Levi on MercantUe Laiv, 92; Browne on Frauds, 428- edTm ^''"*'"'^''"''^'^' 286 ; Jddison on Contracts (Ut C'oc^mn, in reply. (Cites 12 ^o^^. 578). Thegood-will of a business ,s a distinct thing from a sharo or interest in it. Wharton 8 Law Dictionary, 331. Cu . adv. vult. WiLKiNs, J., now (Jan. 3, 1866) de:ivered the judgment ot the Conn. ** ^ The plaintiff gave no evidence of his having done any act -.tl. H v.evv to, or of which the effect would be, to assure to I e defendant any advantage to which he would not be en- .tled from the legal operation of the sealed articles. It is rue, he proved generally, " that he performed all h:s condi- tions, but as he made an averment to that effect in the second part of his writ, and in particular relation, not to the ;r rr- "' ^ "^-^•-"" - « «tn-et se^se, but in T r .' 'T^'''''^'' '•*« >'^-"l "P J'is share and interest in 1 T't- ^''T'Pr^ *" '"^ "-^t'-n-^ff from that business, and permitting the defendant to carry it «," the g.^era evidence nrodiin.r] mna^ u^ i.^.ij i._ i . .^3^ . ^ »« 152 AUSTIN V. BOONE. Tliua, then, tliu plmntifl" not having either allogod in his writ, or made it appear in evidence, that ho, in C()nf.idura. tion of the alleged vorhal pr.)mise, did anything f.,r .l..f\.,„i. ant, beside what he was bonnd to do by the articles, the verbal engagement would be void, as having no considcra'tion to support it. And, of course, if it were void, the circur... stance of plaintilF'B having, at defendant's request, given d... fondx It time for the performance of it, could not set tk void contract up. The general rule of evidence applicable to t\m caHO is incontrovertible, to the effect, that where the ecu. tracfing parties have committed the terms of the contract b, ^.'•rriMg, especially a writing under seal, an averment l,v -iiior of the parties as to what was said or understood pre- viously to, or contempoianeous with, the wrilt; sj contrart, is excluded. Putting out of tho question frand xvhich .ivt.'icl everything, it n)ay bo doubted whether any a'Ulumty cm h. produced of a real exception to this long , nabli^bed riili Hoeming exceptions there undoubtedly are ; but, !.oforo con sidering tiiese, I muit observe fluit if '- good-uid " in a stri.i sense is in its nature a distinct UiUp; from ihe subject mafuM of plaintiff's stipnlatJM-s expro.u.-l in tho article- -a prop , i tion not very easy perhaps to bo miint. fned- -it is impu^sii 1, looking ut the n;rit, to ^.upposo that tiio j.l-M'miir aiti.solf s. regarded it. If ho had so viewed if. al? .hat ,,e has a-f out i«> the second branch of his case— tho special contract ro- lled on- -M^a!' uunec('3Hary, because it was all expresse.l aiwl provided :H- in tho articles and because it is, undeniably, a mere ab-'^?.-iv, t of the contract embodied in them ; and wimt ruakes ihis tho more striding is, that in tho second part ol the writ the [.laintiff, after Htating tho subs-t mco of tho g.n- eral contract as it is expounded in the arnoles. and at er averring his general performance, concludes by stating that in consideration of tho benefit that defendant would (?erivo from that performance, the defendaat promised to pay not the $2400, but the $200 claimed in this action. It was argued that tho caso should have boon loft to tlio jury; but there is no controverted fact iw tiie case, and therefore nothi||g on which the jurv could pass. Lindlei/ v. point; out it has nothing in oommou with tiiis case. In that MICHAELMAS TERM, 1805. 1S3 cm. the f„„r,I, count. ,vl,i,,.|, w,.. tl,„ matorial „„„, „„„e,l ,l,„t M me a, ,on of Vhmt wjaimt LMlc,,. Verhu .„„i. an- .. I,u,l ,ak,.„ ,,,„e„ between tho ,i.,ie» ,„,,■„ "1 wn ton aj;r„cn,e„t was on.erc.I int„, an,, ,,,,,in,iir "JZ 1 ',■'»— of „„..„„„ a,,,,,.,..,, ,;,f„„,„„', ,„: rw ,-,2 "'"'-■"t.",,! ,|,at OI,a,e-. I.ili i. „„„,.,,, r:i et.rr'V,r„.f ,'": T\ ""'■^■""'■•" -'■" " t.o . ami such u„ H„.swor as that j,.,st stato-l was cnntn.ve fed ami, tlioroforo, t wis nut hv t]L i i i , ""7^'^^^"» • .■ <'">^'''"^"J no roforeuco to Cliaso's hill „„d ,W , 1 """■""'"'•"" "■"" """■"'>■ '■-l"oc,I to wntinR, CIiHo- action 4mW„ Mc ,«•;«-.« am-eommt Tr,„ • ™m..; CO.. a,„n ..jt^!':,;.;:;-;!:— fram -n,,! ,.,ir7 . -"'-""■™ W"-"" "Kreemont .li.tinct r ",.,u,. cllateial to, ll,„ wiitten contract, on the part of -.•ant, .,z lo.eU,el,,U„ct!on. 3n,_TI, 6>o, °,K ,cd 'l'"« " w- t .0 intention ol (l,o ,,a,,ics to l,„v„ ,. , i.tinot »IJ-o,nc,,t coUatcral „, tl.e written a.-a-nnont. Not i ., I ;';:;; 't,'^''" ''^••"''"■""■" ^'•••"•-''- -"■ ^•'"'Vv a collateral „sreoment wa, not interfered wit , ,v tl o ri:;:;: :7'""' "«—""•' ««-■'. -it i.cie,.rti,att : Wcnt.act was not ,nten,le.l to refer to ti.e hill;" and «"., ' Independently of thi,, the taking „p „f tl,„ 1, || „Z . . e lonndation of tho agree.nent, and Tvidence iT dm,.-d,|e «. ie,„y «. parol co„dU!on on which the «nttl '"P"la.,on re,peel„,g Chase's bill, will show that tho suhject 154 AUSTIN V BOONE. r miitto • of the former wiia porfoctly ,i,t of compensation Hint the plaintiff waa to receive from tin defendant for that transfer. Harris v. Rickett. 4 11. AN..!, was alno cited l»y Mr. Coehrm. but it irt HufHciont to remark rospoctinj; it, that in that niHe tho Coiirt decided that the vorhul contract couM not h»ve l)cen in tho conternphition of the parties at the oxe(Mjii(.n of tho written nf,M(soinent, In contrast with that case. \ apprehend it is inipossihio fur this Court, adverting' t.. ihu vorl)al contract and t(> the written one. to believe that wlien the latter was executed, the hn-mor, if real and gcmiiiK.. could have been absont from tho thou^Hits of the contracfin' parties. The very recital ot the provision;* in the ariiclen adjuHting tho amount of tho plaintiff's compensation for his transfer therein stated, could not, in tho nature of tliinj;s. hut force on tho jninds and meuKuies of tho parties to tho artifles the co-existing verl> >! agrevment. " Why then," it may be asked, <' was it not incorfKnated?" liogers v. Hadley et al., 9 f.aw Times Kep., N. S., 292, wis not referred to at tho argument. It is an interesting 'cusc. because it shows that, though parties executed a formal wilt. ton agreement, it was competent to show that it was not in- tended to operate as an agreement evidencing a subsisting m,. tract. Wo refer to it because it recogniicos the general prin- ciple of merger of all previous nogociativins and stipulatii.iis in a subsequent written agreement. Bramwell, }]., said (p. 294), " Where parties have put down in writing ihe agree- ment between them— or rather I ought to say where they have professed to pjit (h)wn in writing the agreement he- twoen them— they cannot add to it, or subtract from it, or vary it in any way, as otherwise they would defeat flint which was tlioir primary intention in putting it ?own in writ- ing." Channel, B., said (p. 295), "I quite agree that wli.-re parties sign or ptherwiso adopt a written instrument, wliicli they mean and un|lorstand to be tho terms of the agreement betwuon thorn, ihuy uunnot by parol evidence alter the terms n tlio siihjoct the coiitMry, ve 11 cmnriion if all /tis ii,t(. 7 the (I moil hi ve from fla Mr. Cnchrn. in tliiit ciiHe lid Dot liiivc e oxecniiiiD flmt ciis(!. 1 srtiii},' ti. ilif c tliat wliiii 11(1 pMiniiic. colli lilC ting ■ the ai'ti cleK ■ itioii lor his ■ ' tliiii ij;s. l>ut ■ thu ; id'tioles H orpdriitcd?" 5., 2S)2, was eHtiiig ciiiic. foirruil writ- was iu»t in- hsist'unj coji- jiKM'al priii- stipiilatiiiiis II, li., sail! 5 llio ajiree- wliuro they eeintMit he- from it, ur defeat tliat kvii ill writ- that where jeiit, which «j,'rueiiM'rit thu terms MICHAELMAS TERM. 1865. j^g into b„.w„'„ .1,0 ,;• '!"";'•" '■"'' "7'"'"' ^"-«d J imtj, ana men they propose to prove bu nnml Mlhe,a,jr,,Uo .ometUn, more, or S^Uu^ iZ'" Z^ itid uiidoiiial) 0, WO thiiilv- th-.f *..,.i , i . ' ;""" 7, " " "'"""• K'>"i ellec. .„ tl,a( will,,,,,. „„ „„„„ Tk« rulo mu«., tl.oroforo, bo discUrg,,,!. A..or„c.y f„r pluintin", CocAmn. ''"'' '''■™''"''"'- AMornoy l„r ,WlhuUnt, SoUcihr Ocneral. TEMl'LE im Otiibim ... McDOXALD. Jmmry 3, 18(;c. A«Mrs,T ,.,r ,l,„ use „„.I „cc„p„,i„„ „, ,,.„,,, „f „,^, f'lT, Hie p»rl,ci.l„,-,, |,„i„g „, f„||„„. I"'""- T>vo ,w«' ,»„ „,„, „,e„,,„i„„ „, „„^ |,^,f ^^ ^ ""I'" «"io, «t 824 per year , .g on .«: r'7.;;e'r' "'•" r ""'"'•""••^- Put'.iero,„l,tt ,„ "" "' "'» '^"n "I tl'<--ii- writ .non.iuiicl u„.lor an M .u„l ,u,Kl„ct„,l t„ fulfil „„ their p,,rt," &o A the .rial before Wilki,,,,, J., „t H,.lih.. in' Oo.ol.or 1.65 r» ««a teuu ueeueci origi„„|ly ,„ the plaijifl-;' iu,; ',;;ie; loG TKMl'LK AM) OrilEKS v. M<:DONALD. M Ternplo, and \m doci'iiHod hrotlior, wlio wiis drowned slidrt^v aftur flioy purcliiiMt>d, ami of whom tlio otiior I)lllilJtil^^ wr^ tln» lit'ir^. AIcxhihKm' Tcinplo had ii tho partner of tho [)laintiirs' attorney, in which Mr. Jii!ii.'s| gays that Mr. Tempio is willinj^ to allow him (dofenduiit abandon tho purchase, if ho pay.s rent. The learned Jud,i;o non-suited the plaintill's, on the groii^tl that there was no tenancy such im would support the aciiial for use and occu|)ation. A rule nisi having been taken out, under the Stat\jte, to J aside the jud^^mont of non-suit, and for a now trial, it iii/t| (Dec. 22, 18G5) came on for argument. Jnmes. in support of t!io rule. There was no valid nii'Niilij Bi'stin;; contract of nalo. The defendant repudiates the as invalid, and yot ho sets it up in t!ii- case. II ? was teiia at will to the pLintiff, and the rlainiilf must bo considew as his lan,,,.,,V, I ■, no,-, ,vl,ilc ,l,„ ,„™„r w,„ ,,„,„ii„g, i^^. " •, , ' "." ^ «.« ,tw„H l,H,i i|,„t where ,h„ ve,„l„c. ,'(„?„,„?„;;,'■ a„c„„„ h,., beon ,„iror<„l to ctor „„„„ ,„„, |, , ,,„ " '■ .«,» while ,l,„ title w„. „„rte, i„vo,tiea,i„ " , ., 1° '';"■ Im, 1,. „„ alterw,.r,l« ,l„,er„,i„o,l f„r w.,, ,'f 1 , T' o»-.„„t o„ the.„ .r„,„„„ „,„, recover ^r „'"„ ' '„' ..St Lor, l)„„mu„, C. J., i„ that c„,e, s„i,l , " The ,lefemi u,. . ...nly w,H c„„,i,iered h„,h hy l,i,„selt S X^uZ purchaser, not a, to,|,,„t ; «,„| ,h„ ,,|..:,„|,r „' 7"""" "" ..in. i„t„ „„ occupier, „„,„'e ,„ ply^.^r '^1 ,:.::;':;;;' own wrongfnl «ct in not c„,„ple,i„„ ,„e cent , c T^ , ~ ^"•"" •I'" "■" ".v of these iLt t,v„ lo ™ the 71 exprcHscl i„ SmiWa Ceadim Case, 7fi „ Tt ' Pr-VM, 245-G, we feel onr,el7e3 Sjd ^Zl, T'f' to decide th,.t the piaintiTs c.,„,.„?;'et;:'ri]!;;:i:r"''-'' Attorney for ph.intin", J. ff. Foster. ""'' ''"^"^O"'' Attorney for defonilant, Btancltard Q C tail, and its char I to mnnrt <1>I> ^_i. f I). of Kxoliof|i„,. ' vi!ml„r rni^riif "If «»n Ill's |,.,rf eiidoo, recover II fAX AND Otiikuh v. Mi;KKN/IP: January 3, i860. 159 AND ()thkR.S. lolh.. opinio., of ih« Court, It H|.w.Hr...l «t .1.- ' "^ »'"""" "^^ ''J' '"'"'•-nt. ...I.J.^.t ,h.. e.... without . ..„. rn.i bei..« k..,..,^ ,,:,; *:; ^ ; ^J ;: in A ..^w trifll WM Rmnt,„l, with leave to the i,I«i„.i/r- . i»B« of olhti- pluiutiir-. »'I«intiir* t.. amend hjr addio« tb« Ejectment for UuuU i„ Victoria couuty Ploa i • At flio tri.U bef;,ro Dodd, J, at Baddeck, in Octohor 18G5 "(.f-rod t lat tlio p|.i,.ti/r. clal.ne.1 undo a gn.^ i'., tt' rowii (winch WHS put in evidc-nec). dutu.l lOth'se t 6> Wlv^ a« trustees of the I>rc...yterian Chu^:^ .l H ^L^ 'ler\(i. Iho diHputo aDpuarod ...•.llir ♦ i . '' """"»r- CI...* ..J .1,, i„.„ 1! c. ,*, i :. r; "■'• lt«..,„ed. l,.„vovcM- tilt V, o? '"'['"■» "^•""'"■■•''"tfi.t. ""I. Il,e Prc.».,,t«ri»„ Church of the U ; P oWr*"""'"^ ..ore plaintiff. i„ this actio,,. Bcv. J,„„o p„ "'°''"' "'"' lor tl,o pl„i,„ifl-,, t„,t,BeJ that tJ,T ' " """"" ci,«rchofscot,a,;„ .ho,:",.:" ;, j" ;„::Ih: ;' "'- m 18<3, '44 a,„i '45 a ™iui„er of ,h„ Fro" Chal ' T ?'" ■I.« l,usba„d (si„c„ d„coa.e,l) of „,^e of t^,o 7 '."". "'"' f«l«r of the other dofo„d«„t» wont Z ''"'^°'"''""^. '""1 • Conaiderable evideDce was mwen with n>«>, Otiikiw. ground timt tlio Crown whs out of posnosslon for f,,itv years Ix'f'oro tlio j;raiit jiassod to pliuiitifl's, iiiiiJ that, tliureiuro, tlio grant pa.ssed for nothing ; and that thero woro no such porsotih as those named in the grant. Tho loarne(l Judgo dijclincd to non-suit, hut resorvod the points, and, on his reconnnen(h»tion. a verdict [)as8od for the phiiiitills, sulijoct to tho opinion of tho Court upon tho \\||,,lc case, with power to direct a non-suit or a verdict for tho do- fenthuits, or that the present verdict shouhl stand, -tho Couri also to have tho power to draw conclusions of fact from the evidence in tho same manner that a jury might. JV. A. Johnston, for defendants. (Cites IVov. Act of 1857, chap. 52. This Act incorporates " the trustees appointo.I by tho congregation of the Great Bras d'Or arul of Mauuf. War Toint. H(»uhirderio, in connection with tho Free rhiiivli of Nova Hcotia on tho 8th and Oth July, 1851, namely Donalf] McDnnahl, Ac, [ten persons are named, among whom arc Murdoch JJattleman and tiio other five i)hiinti(rs] and their successors in oflico, by tho name of tho ' Trustees of tho Free Church Congregation of Boidarderie ; ' and vests in them all real and personal estate then belonging to those congre 'a- tions. Tho second section of this Act declares that tho per- sons who at any time subscribed, or caused their names to be subscribed, or may from time to time subscribe, are tho con- gregations of the Free (^nirch of Boulardorio, according to tho congregational book under tho ministerial charge ol tho Rev. JamoH Eraser, and bis succossors in ollice, to be elected according to the rules of tho Free Church of Nova Scotia for the time being. The plaintilVs hero have not sued iu their corporate name, but in tho name of some of the imli- vidual members of tho corporation. Tho trustees forming tho corporation are named in tho Act of 1857, and only six of them are made plaintiffs in this action. Tho Crown had no power to grant in 1862, because it had boon out of pos- session, (Cites Prov. Act of 1862, chap. 68. This Act recites that tho two bodies of Christians known us tho rronbyteriun Church of Nova Scotia and tho Free Church of Nova S.M.lid, were in tho year 18C0 unitod into one, by tho name of tho Presbyterian Church of iiio Luwor Provinces of Critij■ tliat the munner of appointing successors is not provided in such conveyance.) nianchard Q. 6\, contra. The trustees were in possession hofure they becanso a corporate body. They represent tho Free Church. an lind a verdict for tho defendants, ho- cause they proved title out of tho plaintilfs, and that is always sufticient in an action of ejectment. I do not think that this caso comes within tho principle of the amondmont made in tho caso of BoutUicr v. Knock. Di-^BARRESjtl.jttndWiLKiNS, J., concurred with tho majority of the Court. A lule was granted setting osido tho verdict and directing that the plaintitTs should pay the defendants the eoata of t}>fi Slancha lias now oj tho cases i MICHAELMAS TKKM. 18C5. ^.3 Attorney f„r plaintifrs, Camphdl, Q C Atlurnoy for dofoii.luut., N. L. MacKay, Rule accordin'jly. ANNIS AND Another v. COOK J>iHiHiry .1, I8OG. AND AnOTIIKU. Whore an arbitrator tkiakcn n iniatiikn li. .i.» 1 •■ f,n,„„ ... b, oo,».„, „f ,„,„,„ „" r,, " V'" "'""' '•"" "'"""'• •"'1 "... «• «.ri i., av,e of o„„.,. w. Bui:;,: :, ;: L r::,f :r ll.»av»ur.l, ,„ v.|„d, ho sfUo,! timt by u,i.uk«"„ 1, " coo.» .,.„„„ j„: H. c,.,, ,„,„,.„ >,";-:^,-; '-;•■■"» 11.0 rulo „o«r iDoo. 30, 18fi5) cu,„o „„ for argumoZ' /: 'f. "^"'""fon, /r., i„ support of rulo. This i, „ .,.„,. ol.r,c,. orror wluol. tl.o Court will uitl.or „,„„,„, ?„ H^^Z rrfc.r Wk to tl,o urbitrator, to b„ a,„„,:,,„j bV"b '" H A«.«'. N. B., 851 ; 1 U. li., 128.- 10 ,fo J-iG • 17 , 1 „,' Xi;a«fAarv„ ,.,l,,„.„t ,v,tl, co,lH, but noithor party to l,av„ l°" costs of tlio argumont. Attorney for pUintifr., C. Morse. ^"^' «^-rcf.Vy. Attoruey for dofeiiduata, If. W, Smith. McDOXALD V. MILLS. January 3, 18G6. B^vo-iAnn Q. C, lud obt,.i„„,l » r„Io „m to sot u,i,k a ,• • . ," "PP""™'' "''" 'I'O <'«lond,»,t had takoi, the .lUectm,. „ both triaU that the su,n,„o,„ wa, not o,„l, r ed « the ,.ot,c„ reau.Ved by tho Act of 1805, chapter sec ton 6. fo gave „o ovdence at tho trial, either by hi „solf Tho rulo uow (Dec. ao, 1805) came on for argnraont. BUuchard Q. C. in support of the rulo, statad tho facts «1 read tho section above referre.l to. [Db-iBabI J m.» operated on my ,„i„d wa, that dofenda t vast d fo„; ■lays before tho trial that ho must lilo his sot.o/r.J itUkr, contri. 1 contend that tho only effect of the notice «ot b„n,g g,ven on the summons i. that tho defendant ca" S-vo „v,denco of a set-olT at tho trial without having Id tt V, once of setoff was actually given in thi.s oase'at t^e ._, -ji .U8 ......«„;,,:. i laiuK, Wioijibro, that tUo de- 16C BEUXJNI V. MURPUT. ^^''^ foiKknt is not in a position to ask tlio Ci^'.rt to sot tho juilg. mont aside. Manchard, Q. C, in roply. [Young, C. J. Yon must con- tend that tlio writ is iibsoliitoly void for want of this notice] Yos, just as much bo as if tho magistrate's name had not boon signed to tho writ. Cur. adv. vult. YouNO, C. J., now (Jan. 3, 18GG) delivered tho judgment of tho Court. Mr. Miller's argument was that tho only eflect of omittinj,' this notice was to enable tho defendant to give evidonco cif set-oir at the trial without filing a plea of set-oil*. Wo do not think that this is tho true construction of tho section. Wo consider that tho real intention of the legislature was that there should bo no summons without this notice, and, there- fore, wo consider this writ absolutely void, and give jtidg- raont for defendant. Judgment for defendant. BELLONI V. MURPnY. January 3, 18C6. The objMtion to thn want of Ww notlo« on r msRiatrato'ii nummons required h; the IVovinciHl Act ,.l 18(55. cliiip. I, «o. 0. k waived by tho dcfenUaiit when ho go*. Into his e?ldenco at tho trial befoM the magistrate. DoDD, J, This was a ease that camo before mo on appeal from a magistrate's judgment, and in which I reserved a point awaiting the decision in McDoncdd v. Milh, Tho defendant in this case actively defeiuled tho suit boforo the magistrate, and went into his evidence, and, l»y so doing, wo think that bo waived tho objection to tho want of tho notice on the aura- inons required by tho Provincial Act of 18C5, chap. 1^ sec. 6. -^s^ let tlio jiulg. bw mnst con- tliis notice] Imd not boon . adv. villi. 10 judgment MICHAELMAS TERM. 18C5. jj-y BOND AND Another v. IVES, AnMiN.STiUTon, &c. December 20, 1865.* J:':\r,t'.",!:j::,rr; .r," ■" "- •■.-""■ - -"• -- Wh«ro an notlnn i§ hronuht on ■ for.!.,.. : i . . As^UMPrnT on a jml^mont ,>l.hWno,l in the Snpromo Court of Ma.HucI.„sott« on tlu, 20th Fol.'y, 180M.V tJ.o plain tffs .pvn.t ono Hn,h MoKi,.non. of whom clufondunt iJ e Ld raiiiisfmtor. for ^320.81. .„ro/r!',- Ti'*-''''"''"'' r"""" ""'" """«'• »"" 'I" " «"i,i sZia." -I'm-alct ,o ?S00 i„ currcoy of Nov.. Kifil, ,,l„„ to ,„i,l (i„t count, »t«tinR, inl„ „li„, timt ,Io. currency „ equivalent to »r.00 in cnrroncv of Xnva k r' . E,,-I„l, plea to „„■,, ,i„, „„„„,^ ■ - - '• ;;^'/;,' "•° «f"; -l-."...l «vorri„« that •■ tlf^Zt lli.m ».).(!. 84 of tho currency of Vova Scotia " I)em,,rrer to ti,o«o part, of (if,|, „,„, „, j,,,, ,„„ ,^, ^^ Jeay,Ac.,„, ,.I,ovo, for tl,o folI,nvi„K rc„«Hm.- 1. lecaiHo ,ai.l denial refers to wl.at Imppeno,! to ho tl.o luvalent l.etweon the .„„„ „a,„c,I. i„ (J,,i eU S,.i„ „„" roncy „,,,! cnrroncy of Xova Scotia re.poelivelv .1 , ,„ ,i,!. *n..„Ip,„a, ,voro .,y .,,, ,lofen,la 't ,3 a^ J ^ 2 noc««,e tl,o »an,o objection npplie, to that part of ,1, fa.,lanf» „,^.|„|, plea, w|,iel, „ver, tllat tho ,n,„ rf Js", t Wi«.8l ol tho currency of Nova Scot!,. " Joinder in demnrror. !•.. i«». •»ij.»>jij m,i,i«.iirissr;nsr 1C8 BOND AND ANomiBn v. IVES, Adkinistoator, *c. Tteplicatioii upon oquituhlu ^rnundrt, statinpf, among othor tilings, timt in equity and good eonMcirnco dt^fcndant uwgUt to pay naid jud^niont according to tlio rolativo cqnivalont between tlio cuncncio!* of the United States and of Nova Scotia when the original promises wore made, and when the original cauHo of action aronc, and not according to any do- preuiatod or dimini.shcd value of Kui(i United States currency which may, by any means, have since ha|)pened. Domnrrcr thereto. Because the |>]aintilf brought his ac lion to obtain the amount of a judgment rocover(;tion to the pleas is that they are in the present tense. Ibnintij Statutes, chap. l.'U, sec. 1)7, and forms annoxcd. Bnllfii <(• Ledke, 57r» ; 2 Fxch. 471. If a plea of set-off were pleaded, it would bo necessary that it should nllogo that the plaintilVs were and still are inS); a 1). (lb L. 407 ; ilaaa. Law Ikjtorler, April, 1865 ; G M. (f- IF. 559. [YouX(s, C. J. Surely '• is equivalent " in a writ means ut the time ot the issue ot the writ. As regards the pleun, if they had said "was at the commencement of this suit,' you admit they would have l)een good.] Yes, [ VouNiJ, (.'. J. Then I call the objection matter of special demurrer only, and such demurrers are not allowed by our practice. Uovisod Statutes, chap. UU, sec. 61. Wilkinh, J. Vou n\y that tlK» }»iea is immaterial, because it dooti not answer to the time of the declaration, that tho defendant uses the word '' is " referring it to the time at which ho pleads.] Yes. [Wii.KiNS, J. 1 tiiliit tliQ nliiij(>(i?eH Hgajust a man who uppoaln tVonj a judgn.oiit ? Ii. G. Gray, in reply. The • oartnro, if any. of tho ropli- .afion trom tho declaration in matter of special „co for that purpose ' '^^ : :.t ::::':;' :,':;;',;:;: r"':';'^^ ""•"■"' "" ■•■• S,-..!:;: Jt« of fho lutotr.ul l.y reuHoi, of fhin r„lo. „„cl t|.<.tjn the „cuntu„o all Anther proecclingH shoul.l bo At thu trial before Wilki,,., J., at Hah-fux, in October 18C5 .^'^'^1'^ 1^'^''°"* ' -ther opposition waa tak.a fbr tbo Tl.. «flld.,viu of Jo.c.pl. If. Wcoka, Jol.n W. Ou,oloy (plai,^ MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) I.I U^ 2.8 is 1 4.0 IS. „ Z5 2.2 1.8 A ^F^LIED IIVMGE Inc 1653 Eist Main Street Rochester, Ne» York 14609 (716) 482 - 0300 - Phone (716) 288-5989 -Fox 172 ELLIOTT AND Otheks v. LADDS. tiffs' attorney), S. H. Gray (delendant's attorney), W illiarn 0. Scliwartz, N. Russell, B. II. Eaton, George Shieis, and J. W. Nutting', were read at the argument. The various affidavits were very voluminous, but the follow- ing appeared to bo the only material points. It seems that the cause stood number 93 on the docket for the Octobei sittings, and number G5 on the list of the causes marked for trial on the first day of said sittings, that it was somewhat unexpectedly reached about 3^ p. .ra. on the first day of the jury trials at said sittings, that S. IT. Gray then sent for the defendant and her witnesses (all of whom resided in Part- mouth), having an hour previously thereto directed his clerk to prepare subpoenas for the witnesses. The defendaut and her witnesses left Dartmouth for Halifax by the steam ferry shortly after being so notified, but before their arrival the cause had been tried, and judgment given tor the plain- tiff:^. Morse, defendant's counsel, informed S. H. Gray, about halfpast twelve o'clock, that the cause would probably be reached soon, but Gray seemed to think there was no danger of it. Morse opened the defence, but neither his client nor her witnesses being present, he was unable to oppose by evidence the plaintiffs' claim, and a verdict there- fore passed for the plaintiffs as already stated. It also ap- peared that the defendant had several times, both on the first and second day of said sittings, made enquiries of her attor- ney, through her daughter, as to the time when the said cause would probably be tried, and had been unable to obtain any exact information. The affidavits on the part of the plaintiff, and those on behalf of the defendant, were conflict- ing with regard to the merits of the case. The defendant testified that she had rented onlv one half of the house from Fuller, the agent for the Elliott estate, at $50 per annum, which she bad tendered and offered to pay. Joseph H. Weeks swore that Fuller denied the letting of half the houso to the defendant. B. G. Graij, in support of rule. (Reads the Judge's min- utes of the trial, and the affidavits read in moving for the rule nisi.) MICHAELMAS TERM. 18Co. 173 Oaseley tlien read the affidavits on behalf of i)Iaiutiffd, and S. II Gray lead his own affidavit. Solicitor General, for plaintiffs, sliows cause. In 1 Moore & Scott, 229, a causu was called in the absence of the defen- dant's attorney, and no one appeared for the defendant, and yet the Court refused a new trial. As the affidavits on be- half of the defendant are not referred to in the rule, they cannot be used nov--. To allow them to bo used now v;ill bo a violation of a K ig established rnle of practice. [Wjlkins, J. The only security the Court have is that a rule should Htate on wl.>at it is granted. JonxsTON, E. J. The affidavits, it iippears, were in point of fact read when the rule was moved for. It is not as if they had not really been read. \oaxG, C. J. I see no difficulty in the matter at all. The finestion is have wo the power to amend the rule or not. I think we have and there is authority for it. (His lordship ijoro consulted with the other Judges, and then said : We are of opinion that the rule may be amended by reference to the affidavits read in moving for it, as they were filed on the 22d November last, and no surprise is alleged.) Wilkins J. I do not wish to be understood as assenting to this.] S. II. Gray. The defence intended to be set up was not that the defendant was tenant at $50 per annum. I could Lave shown that she was not tenant to the plaintiffs at all. Though the defendant has treated me very badly, I should be sorry that she should lose a new trial. I consider that I have not been guilty of neghgence. If I stated that there were G3 causes before this marked for trial on the docket, on that ground alone I would have obtained a new trial. 2 'Dowling 246; 2 Chittijs Rep. 269; 3 B. r6 AM. 328. In this last case' the cause had been several days on the list of causes for trial and had at last been taken out of its order as an undefended cause, and a new trial was granted on payment of costs. The cause wo are now considering was taken out of its order because several of the cases preceding it had been set down for particular days. B. G. Gray, in reply. T admit' {hat an attorney can be 174 ELLIOTT AXD Others v. LADDS. made liable only for gross negligence, but this case shows such negligence on tho part of the defendant's attorney. None of the cases go so far as this, where the attorney vvis hunted into Court by tho client and his associate cou.isel two or three hours before the case was called, and he himself saw the state of the docket. It the attorney was ijotified nearly three hours before the case was called, and took no action for an hour or two afterwards, surely there was gross negli- gence. [Young, C. J. Even admitting all that you say, the modern cases do not go the length of punishing the Attorney by the act of the Court. The case in 3 Taunt. 484, has been over-ruled. Do you not think that, in common justice to the Bar, the Court snould not impose costs on the attorney, imless there is ..i clea.-, unequivocal case against him ? Dodd J. The Courts will not decide a case where the affidavits are conflicting, but wi.l leave the parties to a jury]. In 3 Dowl. 798, the plaintiiFrf attorney was compelled to pay costs on account of the plaintiff being non-suited through the neg- lect of his clerk. (Cites 8 Bing. 144, 5 Bug. N. fl, 112; 29 Eng. Law & Eq. Hep. 30G; 11 ditto, 420.) I rely on the point that had defendant's witnesses been in Court a verdict could not have been rendered against her. In 3 Taunt. 484 a cause was tried as an undefended cause from the neglect of the defendant's attorney, and a new trial was granted, he paying the costs out of his own pocket as between attorney and client. (Solicitor General. A case in which the defen- dant's counsel has addressed the jury is not an undefended case.) Cites 1 M. dt W. 143. Solicitor General cites as to aflBdavits not referred to iu a rule not being allowed to be read at the argument, 2 Ch. Arch, Q. B. Practice, 10th ed. 1510-1522, and 1 Q. B. 315. Cur. adr .11 > :3 Young, C. J. now (Jan. 3rd 1866) delivered the judg- ment of the Court. After stating the facts of the case, his lordship said :— Though this case was not actually undefended, the merits were not heard, and, referring to the case in 2 Bowl. 246, and tho pcciiliar facts of this case, we are of opinion that a case sliows t's attorney, ttoriiey vvja couasel two himself saw tified nearly 30 action for gross negli- you say, the he Attorney it. 484, has mon justice he attorney, im ? DoDD, le affidavits [ary]. In 3 to pa,y costs gh the neg- N. a, 112; rely on the irt a verdict Taunt. 484, the neglect granted, he en attorney I the defen- undefended lip said :— the merits JDowl. 246, inion that a MICHAELMAS TERM, 1866. 175 new trial should be granted, the costs of the first trial and of tl,o argument to abide the event. As regards Mr. S H .ray we do not award costs against him, nor do we ailow Attorney for plaintiff, Ouse!e?j. Mule accordingly. Attorney for defendant, by substitution, B. G. Gray. ZINK AND Others v. ZINK. January 3, 1366. Where an action 19 brought to test the validity of a will i„ „k- u „ . of an estate are interested, the costs of such action «ho m ? u ''^ "" ^^^ ''«'™ thelosin, party in the suit, but those oHo, " ould 1^ 'T "'^'^ ''^ e.tate. in analogy to the practice on feigned issui '^ "^"^^ °" *^« Ejectment, tried twice at Lunenburg, and in which the question of costs stated in the judgment came befo tL Court during this Term. ueioro tho No formal argument was had on the point but if ,„o briefly referred to by Janes, for the' ; 1 til and/^ Johnston, Jr., for the defendant. ' °*^ '^' ^' Young, C. J., now delivered the judgment of the Court This cause was tried before me for the second t; . , ...October Term i„ tune„b„r., on'tL ride'^t ^ plea hereto ; and a verdict was again found for the llTff for the lands in the first count, being the same K„^ . were devised by George P. Zink, iecerfed to uZTgI "' Z^K tl.o father of the plaintiffs, b, his wiil, dalld t' uZ: The jury, in rendering their verdict, declared tb»( » found against the will of 9th Julv, 1861 on both 1! ? on which it had been attacked, betus h thefvil TT Wor at that date had not the capacity to „"-'^'l',! *"'■ 'b will was Bot duly executed -/nder'the sC • te i^Z 17G POPE V. THE PICTOU STEAMBOAT COMPANY. finditip; the flofenfliuit has dotormincrl to acquiosco, and tlic plaintilFs' counsel lias moved for judgment. The finding as between the parties to this suit has in dTect set up the will of March, 1859, but that will and the partita interested in it aro not before us, nor can we anticipate tli' proceedings that may bo had for the final settlement of tii<> estate in the Court of Probate. The knowledge, however, that we have acquired from tlie two trials and arguments before us, of the position of the d,'. fondant, and the two letters of Mr. Solomon, the Jiid^o df Probate, dated 2Gth March and 2nd April, 18G2, conclusivolv show that the costs of this suit ouglit not to fall on the do- fondant alone, as it was brought in fact to tost the validity of the will, and the general principle ai)plies as in the case of ii feigned issue. In view' of this, the Judge of Probate at Lunenburg will probably allow the costs of both parties to h taxed in this Court as a charge on the estate, and wo suspcnl execution against the defendant therefor for ninety davs, within which period the estate may be settled up if the de- fendant is diligent in pressing it on. Eule accordingly. Attorney for plaintiffs, Desbrisay. Attorney for defendant, Creighton, Q. G. ! *■ » POPE V. THE PICTOU STEAMBOAT COMPANY. Tnnuary 3, 18G6. An order of Her Majesty in Council allowed an appeal from the judgment of th Supreme Court of this Province to herself in Her Privy Council, " in case sucli judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand, or question to or respecting property in any civil right amouutiug to or of the value of £300 sterling, (£375 currency.)" The sum to recover which the action was brought was £340 currency, but adding interest on this amount from the oato of the writ until judgment, together witli the costs of the successful party, increased the sum to over £300 sterling. Leave to appeal was granted, the respondent being at liberty to raise any quealion with regard to the appealable amount before the Privy Council. WiLKiNS, Q. C, on a former day in this Term had moved k * Ou the 15 "id Henry R Bolton, each c •>? the plaintif Bolton. Exce lo the two utto snstained tboM 'hereon before JJ«8l3arres, J , syectiona were "»rj 2l8t) ren ' stating thttt he "i'peai was not MICHAELMAS TERM, 1865. lad moved for 177 in which ,,e »ta.ed that tJtlbl ".ol r„°',';: ^^ of which the action was hmn .i.f V, '^*^^°^^'^ t"o pncc forX340 ourronoy, ll, t t, ™f ; "oVl J" "'° "'"""''''"'^ •I^XO of the writ was X27, tha tl o „3t, of Z'^' 'T "" -he sheriff, ocnsol, and ^itno,,, fooT Lo ^d t'lfo "".' the costs of tho defeodant to X50,-in M£m ' '"'^ He contended that tlio wordino- nf (I,, . • roiating to appeal, fron, Novrl "o".,-; ;rdff::n;"fr''°",r" relating to the other colonies e«n„7 4 f " "'"' Brunswick. The words in hn' , '^ , '^"'' "'"' New vince were, " wherl .„v 1. 'T """'^'"^ "> ""•' P™' .entonee si all inv 1; d'ir Iv ■'"' ^T^Sr""' ''^"- " .nana or question to «: re ^t .g'popt:: '^ T"^ "'T'."^- .»o„„H„g to or of the val'e of JiOOslrt; - 7„ ITL "^".^ fnvy Council Cases, 467, interest was allowed to h„ f T ' .ate up this amount. (Cites also Mo^ntZ;^t%t) Jrof ti,e%tr t:rjrsrrr ;;:: r^- appealable a.ou^fJt-'f.e'prrcrnoS""""" "' '» '"^ Attorney for plaintiff, WUkins. Q C ^"^ "'""'•*'»** "«J 21..) reMwed bi. „,„„■„„ tefoj" ^.".'^ "• "^ •'»l'"«to» .«l«,™„u, (r.^, 13 M i 178 Mckenzie v. mckenzie.- etc. III IHif^lH'i Note. — Tlio following cnses woro also argued and decide! during tlio present Term, but, for the reasons which will h] pear below, it has been condidcred unnecessary to publitiii anything more than tho euf^uing brief notice of them. McKenzie v. JIFcKenzie was an equitable suit tried before DesBarres, J. and an ordinary jury at Pictou, in October, 1864, when all tho issues were found for the defondaiit. WilJcins, Q. 6'., for the plaintiff, argued in favor of setting asid- the verdict, but was stopped by tho Court on the ground thai tho point for which ho was contending, namely, that estates tail were not abolished by the Provindal Act (Rev. Statutes. 2d series, chap. 112), where a valid remainder was limiteii thereon, was settled otherwise by the decision in re Estah of Simpson {ante, vol. 1, p. 317). Judgment was therefor. given for the defendant, without calling ou tho Solicitor General, who appeared for him. Angus v. Ibhetson was an action of dower, tried befon' Wilkins, J., at Amherst, in October, 1865, when a verdict passed for tho plaintiff. A rule nisi had been taken out tinder tho Statute, to set tho verdict aside. Smith, Q. C'.. moved to make the rule absolute, his main, if not sale grouni], at the argument, being that the notice of demand of dower should have specified by metes and bounds the land out o| which the dower was sought. The Court considered that it was impossible to sustain this position, and accordingly stopped Smith, Q. C, and without calling on Blanchard. Q. v.. contra, discharged the rule. Smith, Q. C, immediately afterwards, before tho whole Court, acquiesced in the pro- priety of the decision, and himself cited several modern cases [ supporting it. In re Pineo et al. was argued by Blanchard, Q. C, for the ai> | pellants, and the Solicitor General and Oldright, for the respon- dents, the Trustees of Schools for School District No. 19 in I the County of Cumberland. Young, C. J., on the last dfiynf| ^erm, delivered the judgment ol O.m C-'wyt in f-wor of tii" d and docidc! wliioli will H]. try to publidli ' tliem. it tried before 11, in October, be defondaiit. )l setting iisi(]'3 le ground that Y, that estates Rev. Statutes, r was limitcii n in re Estah was therefor, the Solicitor MrciJAKLMAS TEUM. 18C5. j^y imsteos, but the doei^lrm ♦.,..„ i i "In-ch was virtual! V reeled tote • on ^ ^"'t" ''^' 1^05, which canio into ofTect i, Z2\ of n " ^''' '' Tl'e Court held that -,li rJJ °^ *'"' same your, ^ectiou of the first mti^rr^T^'^^V' " '''' ^'^"•^'' .-le af^er the assosslnt' l.ut pr"^^^^^^^^^^ ^^^^'--'^^^ .ion should have been completed " '''''''''' '''■ .netr '" "^^ '^'^°"' ^"^- -''olo of this Term iron, 52X0 OF MICHAELMAS TERM. , tried before hen a verdict en taken out Smith, Q. {]., >t sole ground, oand of dowor he land outo| sidered that it 1 accordingly m\ Blanchard, ■., immediately sd in the pro- modern cases . C, for the ai> | for the respon- rict No. 19 ia| he last daynl <• U'or „ .1 f / \ ^ "'* ''"'•'"dant and his , .' , , •'"f™*'"' «™™ 'to tho plaintiff was larirelv corroborated by that of his attorney ^ ^ There was also a short affidavit from Blanchard O C .P,„ stance of which is stated in the judgme™ ' ^^ ^•' "" Ihe rule now (Jan. 16th, 1866) came on for argument. |p:i::)r^.i::rK:e?:b:tvrrer^^^^^^ \m they showed such mistake on I^lr o \ al" |«lo require the Court to set their award aside. '''"""°''' OMe%, contri, contended that the award could no. K. . hde unless it were shown that the artrato 'acted dit |;»jestly or corruptly. 2 6*. Mrck Q B. Pral (Jmh ed!) iei>Wr, in reply, cited ire..y Jr. 369; 9 &cA. 662 • 13 lytures',fow7- ^^ '"^ '"'^ ""'™'°" -»'" - 'h- oy Dgures how they made up the $8. Cur. adv. vult. D^Barres J. now (Jany. 23, 1866) delivered judgment |J„ fr" "'!'"' '"'"'='' ""^ «'•''" »■"• was moved f^and S^nted .0 set aside the award in this case was that the ar t ?■' V.'r ""^ ™''-'^«' "«'"»" ■•» difference between P»rt,es had been referred, had made so p . s a mistake i^ !•« thei^ ;»rt! "'" '"'"' *» misconduct I had strong doubts whether tho facts stated in the affida- 182 LYONS V. DONOVAN. vits mado to obtain that order woro anOiciont to warrant rm 111 ^mntius it. l^'.t I consented to grant it, on the statement made to mo by tlio plaintiff^^ counsel that ho would be pro pared with authoritien to show that this was a case, in which I ha.l the power to interpose to prevent great and nianiles' u.justico being dono to the pUiintilT. either by the carelessness or misconduct of the arbitrators in making an award against bim, when it clearly appeared fri)ni the evidence that the d. lendant was largely indebted to him. TTaving attentively read and considered the affidavits pro dncod on both nides. I feel it but due to the arbitrators to sav that I have iailed to discover any ground for the imputation ot carelessness, much loss of mi„eonduct, on their part in tl. investigation of the accounts and dealings between the pr ties, in which tiiere were disputed items, and in respect ., winch th(.ro was contradictory evidence alone for them -t. pass upon. ^ This then is not a case, in wliicli, as I view it. either tli Court or a Judge has any power to interfere, or can or oipr',; to interfere with tlie decision of the arbitrators, who, in H,. absence of any proof to the contrary, T am bound to presiim. have decided the matters in dilFerenco submitted to thorn according to the best of their judgment, and with the vieu' of doing impartial justice to both parties. To give the Coun or a Judge such a power the mistake or carelessness of tli. arbitrator must bo of so gross a character as to amount to mi,. conduct. In Knox v. Symmonds, 1 Vesey Jr. 3G9, the Loni| Chancellor says: " A party to an award cannot como to have It set aside upon the simple ground of erroneous judgmon: , in tho arbitrator, for to his judgment they refer their dispiitos.j and that would bo a ground for setting aside cverv award. In order to induce tho Court to interfere there must 'be some- thing more ; as corruption in the arbitrator or gross mistak] cither apparent upon the face of the aioarcl, or to he made ou\ by evidence, but in case of mistake it must he made on\ to the satisfaction of the arbitrator; and the party must convince him that his judgment was influenced by that miJ take, and that, if it had not happened, he should have madetiL different award." See also In re Hall and Binds, 2 M. & G.f '^''s^ that 847, to same effect. MICFIAELMAS VACATION. 1865. t to wiirrant rm II tijo stivtonicnf 3 would bo pre- I caso, in wlildi at and inaiiilesr ;Iio carolo9.sries> 1 award against »co tlmt tho lie i affidavits pro. i)itratoM to 8a\ tlio iinpiitatioii u'ir part in th. jtWOOri tllO \y,\\: 1 ill ro.s{)0(.'t (i; ic lor tlioin -ti v it. ('itlier tl)- II- can or oiigli; rs, who, in tin lid to pre.suinr iittod to thoiii witli t!ie view givo tlio Conn to.ssnoss of th amount to mlf . 3G9, the Lonij come to have 3011S judgmun: their dispute? ) every award. I must be some- r gross mistaktl to be made oull be made om party mustj d by that raitj d have madeal ids, 2 M. & G.j i8r. Itno award tho only question in whether tho ani' -'•^>' '-^ '-" ''"''-.d .. $G0 V to which thoro wa. contradictorv ov d.-iico •uul I k^ behoved tho defbndant's statement t at h n .d o ^e-o.rethee4;:a^!ii;j;::::::;r-:^^ or t. :3^^'"°''^' ^'-'^^ ^'^I «triIco it out, tho plaiiitiir ^^^ 1 us m nr^ : "'^' n-ealculation or .ni.taico made of the -xrhti'Z . ''" ""^■'' '"''' '^ "^^ff'^tived bv o„c U^ i t h^ ;: " T- ""'^^ "^^^'^ ''■''' '- ^-« the best ofth pari. .e r 'T''" "' /'" ^^'^^^^'^'^'^^^ --'»"*« evidence astli befo "'" ^"^'^ ""^ '''^''^- ^^'^^^ -•«^' '^a. been don L ?• ^■T'"'' ''^^^'^^^ ^''^^ -^>' "')"-^tice ^-;Lv::i ;i!;^'::;f /^ t -^ *o»ld sot a do at"d, Thl ™ °™ '" Pr'"" °'' '"■=•• ^^ fir.. tl„..,. ."^ '"'»'^<1'; Tho only grounds for th.if nre ■ -, tta. ..o .rb,trators have awarded what was out of their' 184 LYONS V. DONOVAN. power ; secondly, corruption, or that they have proceeded contrary to the principles of natural justice, though there be no corruption, as if without reason they will not hear a wit- ness ; thirdly, that they have proceeded upon mere mistake which they themselves admit." ' It is quite clear, from the facts disclosed in the affidavits there is no ground for setting aside the award in the present case, and therefore the order nisi must be discharged with costs. '^ Attorney for plaintiff, LeNoir, Attorney for defendant, Ouseletf. Huh discharged. 1;.; 1' It Mn«1'' «»«» ""^ will what nature or kind soTver LtT* T^^"^' '''"^ *'" «""« «°''"'*"° «"<> gn">«i- oowequent to the eacecution of the will but h«f««- *i. ". uio wuj, out before the exeoation of the last 186 In he estate OF SEAMAN. codicil, it appeaml th«t h« kept anollior book, called the black bonk, in which ho wioto the foilowins pn-f-ico : "This book i<, k.-pt by mo, and ihe charges, .ntrie- and memoiandiiius horein made, are in oonlbrrnity with the clauaes ii.sc.,t,.d in my will executed on l!io 8th March. 1862 ; and I d<'8iro and direct that the amounta hinein charged ..saiiiai, and tho anvpral allotments and divisions f,l my Minu.Iio fpstato and other lands and personal property mad., to rav children aii,l their heirs, shall be adhered to, and bind all parties on tlio distribution of my ostate, both real and personal. Amo3 Seaman." The red book contained tho following entry, proved also to be in the handwriting of tho testator :-" Sept. 27, 1S44. This book is intended by me to make charges to each member of my f.mily, as occasion may require, fi time to time, as I may think ju.it and equal aad right, it being my desire to tnak.. uil equal as regards my real and personal propeitv 'which may be left behind wh.n I leave for a bett.-r world," This book also contained the followini: entrv. wlm), however, is scored across by diagonal pencil lines: '• Tliis book is kept by m;p' and Ihe entries and charg.s therein given made in aeeordaiicfi with the cln.,.,' inserted in my will executed on tho 23rd Sepiemb.r, 1831, ref.u'rmg to the nani.. Amo3 Seaman." It appeared by tho testimony of li. S.. on(, of the executors, that the test.tor about a month belbie his death, sent ilu! re.l book to liim, smd that ho -lioitly after said to him, referring to tiiis hook, " Keep it. take can, of it ; v(ai will s,>e by that how I want my property divided." Tlie testator also directed V. who' took the book to li. S., to sliow it to his (testator's) sons, and to say to tlieu,, " It IS to be the final division of ojy estate as the book will show them." It also appeared that tho testator ke,.t the black book in his own possJssion. and that ho told A. McF., the other executor^iat he had made tho red book n.dl and void. At tho time of tho execution of the last codicil, ho told A. McF. iliat thu book was in his red box, wli. re ho kept his money, that this book contained hi. directions resp(,cting the disposition of his properly, and that he relied on him to see that his .iirections us therein given were carefully fulfilled. The testator also told A. McF. that he would get the keys of tliig bojc Irom Mrs. McF. A. McF took the keys, and found that one of them was the key of this rod box 1I«" opened the red l,.,x, and Ibund the black lu.ok in it. A. McF. testified that this w„,, the same book which the testator had bet(n'e repeatedly shown him as flio Imok kept ID connection with his will. He further testifi.d that tho entries and writing 10 the book were entirely those of the t«stator. Neither of tho codicils contamod any reference to eiihe.r tho red or black boolf or to any deeds, wiiti, gs, or documents of any kinds, except the will its. If A paper (marked No. 13) was Ibund, signed by .he testator, and containing al- otments of land to his several heirs, all, ex.e,.t one, at the like valuations con- tained m tho black book. A. McF. prepared th:s paper, ajler the execution qf ihe mil at the testator's request, who rc-turned it to him signed, with the valuations nUed in, and told him to keep it with his will. Nine deeds were found signed by the testator, three dated 25tU March 1854 and six dated 14th January, 1864. A. McF. state.l that tho deeds of 1854 were' handed to him by the tesUlor in 1862 or 1863, wh., told him to retain them a, escrows, and deliver them to the parties or lh(«o who might represent them after h.8 death, should he (testator) not deliver them belbro. These deeds were never actually delivered to or accepted by tho grantees, but they were registered bj A. McF. alter the testator's death. The deeds of 1864 were signed in the presence of 0. a subscribing witness, to whom testator said, at the time of subscription, , . f-- — .. I... ™i:„i3 ..„ ^„„„ uiij lo prove ihoso deeds, and perhaps not." lesfator retained these deeds in his possession unlU his death, but told A. MoF., lii JirCHAELMAS VACATION. 18Gu. 187 •hortly b«f )rf> his doatli whom tr. n.^f .u ti.n» of ,ho ,....„„„•„'. „f tit ,,,'"'■ r '" ""^"'-"' ••-■^''"S "-ei" at the l>l.ck book m„., „o onti cavrrTl, ?"' .""^•^'•"•^'■'*^'"' '" '^. -,1 ,h,u ,he ,>on..e,I in th. will ' ' ''"""^' ''*'• '^' «"'' "» »"" ''"o-?^. were so incor- By Wilkina, J., thiit the doeda of 18i4 n „ „, ., ratrd. °' ^"'*' ^"^ tho3o of 1864, were so incorpo- B.y imothor chiise of tho will fho ip- v .livision of thut portion of h!, M-' . ' ' '''"="'"« "lat the iaunodinta A.McKf,„.a „.nn ofy^.rs ^,1^ 1/ '7 '-'^«»o„o them,,,, ...visod to -tare ,yU.r,et.een l^^m^^^S^Z:''"' '''":' '"'-'••"- "^^ '"« Min..die s.-,.. and could -. .t 1 Z Id It '""' """'*■"" '" ■■''^ ^''■'■'^^ ""'" P^"-''^ u- the wo,.d in ano 1 ;r ;t^ Tl *"'','""^' r'"""-^'-' -"'""C" of an in,.„,ion to to.sta.or appointed U S 'xlLr • ' "'''"'"'' J"^' '^*'"° '"'^ ^'«'"'. the i.o-.a„dLth.n.i^;i^hi3 Tan. ;:;h^^ T ^- "^^•' -">*»—« //.7,y ri...f « « *'" ong.nally inserted in the will " Ho then devised several of th.-se ha \ ^^t R S T 'T "'''' ''^""' ^^■'"■^''• there .hould be ab.ted sneh adva.,e. t ^Ld .1 to ^he^r: , "" '' ""' '""'"■ t!.oir lifotirues, i.> like manner and evide. ced n tie 11 ^f-^^'^^P'^ctively i„ advances .nade to hi. surviving child.rn ^' ^"' "' '" '''' '"«" «'" '''^ A^?::^t:r:.s t;;r :::i:2;;r,:t r'^- -»- - -'•-«„ of other heirs, and directed in th^ fon^^Zd r^rZr "^ '" ''' ^"^ ^'^ ^^« 188 In re estate OF SEAMAN. This was an application ander the Act of 1865 chan 7 section 7, by the executors of the estate of the late Amos Seaman, of M.nudie. to the Judge in Equity (Johnston. E. J ) lor directions as to the management of the estate. The executors filed separate petitions, and, by consent, the exami- nation of the executors and their withesses was taken before AS. Blenkhorn, Esq., the Prothonotary at Amherst, under an order from tho Judge in Equity, and the depositions with various exhibits returned. The devisees and all the parties interested were notified of the proceedings. Tho Judge in Equity directed that the questions submitted should bo argued before himself and two associate Judges of the S« preme Court, and they were accordingly fully and elaborately- argued on the 20th and 21st February last, before the Jud/e 'W'il' ?f ^^''^' ^"^ ^•'^'"^' •^•^•' ^y ^^^^"% ■1 J ■ • """'" "' *ai,(o/ lOs., St] remains nnd; vided, and as it was at the testator's death your petitioner is informed and belieyes that the testator the date of l„s w.ll. but none of which Imye been produced for probate, nor are they capable of being proyed as testa mentary documents, as your petitioner is informed aid eheyes One such book or document was doposUed by Zt tator w.th your petitioner, and he hath the same ready tVbe produced .f required, or ordered so to do; another sucVbook or document your petitioner belieyes is in the possession of 1.0 hon. Alexander McFarlane, co-execntor, and TcoT ,atu been furnished by him to your petitioner. '^ Your petitioner haying submitted the copy of the testator's W.11 and codicil, and copies of these several dooume, 7 J counsel, hath been advised to submit the Its rC^f pottfon to your lordship, and ask the opinion, advidand directions of yotxr lordship respecting the'man geme 'a. d diumistration of the trust property, and the aletrof the tes ator, as to the proper course of procedure, and especially as to whether the books or documents so refer ed toT S aud >^l,d instruments, and to what extent, and whether t^^e verbal declarations of testator about or shortly before le tim, of hi, decease are admissible to explain the contents of said books, and if anything written or spoken by testa in reference to hi, will,, and the devises therein con" n d should control or affpot the dispositions contained therein wlietlier he freeholders already named should proceed ,0 dinde and lay off, to the xespective devisees according to the form of the Statute in, such cases provided, their respoctivr •tares, or whether they Bliould iMit or how otherwise. 190 In ke estate OF SEAMAN. _ Your petitioner also rospectfully submits timt upon a roccf inspoct.un o tl.o public records in the o/Iice of registrar o deeds at Amherst, he finds that nine deeds purportrng to I ' made by lostator, and to co.ivoy parte and portions of ti.> testators real estate (inventoried as sueh by the oxocutor. m the month of May previous) to certain of his children" some for natural love and afleetion. and others for small arui gpi .neons.dorab e considerations, were, on the 7th and 0th July « 1865, proved and recorded, but whether these deeds w Z, over del.vored or executed to convey real estate, vour poti t.oner ,s unable to pronounce, but believes sor^e of thorn ^yere not and as the clauses in the books, and the considera- tions .n the deeds are not in consistency with each other he prays adv.ce and direction on the subject in connection there- with If permitted 80 to do, your petitioner is prepared to show that neither the deeds recorded, nor the books referred to, carry out the intentions of the testator as regards tho d.v.s,ou of us estate among lu« children, and as shortly before his decease testator had frequently and repeated! declared what h,s intentions in that respect were, vour pe tioner 1ms ^reasons to believe that other books or papers yet exist m reference to such division which embody the teii- tors views, and, if reference should be had to deeds an J books, tnen he prays that testimony be taken on that point Your petitioner f^^irther desires the opinion, advice and direction of your lordship as to whether he as co-executor, is by the ^enth clause of the said will, a co-trustee with the 1 on' Alexander McFarlane, of the twenty acres of land devised for school purposes. And also whether under the eleventh clause of such will and the expression ''all that portion of the shore frontac^J of my Minudie estate lying between Dog Fish Cove and Lower Cove, with the lands adjoining, extending for one quarter of a mile inward from the shore, and running that breadth along the whole of the said shore frontage wilh the reefs and quarries of stone thereon and therein, and all tho houses storea buddings and appurtenances, and all privi- leges of every kind thereon or thereto belonging, or enjoyed therewith' -the coves themselves, and the lands, houses, L within such coves are included or excluded. MICHAELMAS VACATION. 18C5. 191 And if it should bo l.eld that the deed« ubove referred to J 'i-'ii tsuare, wliether the f?nmu Xrr, *i named as the coMsideration monev sh t b f ' ..tatH.,,.,b.„„,:,:;:r;,ri;;;;:i'r.c:ir''''-" .io't'T;;:;:,: ortr:J:;;";r'':rv" t''' '- - >vl.o.l.e. be l.a. tbo 'option, n:d t o trn 71^7"^ » to o and olaijn an eigbth of tbo entiro I a te "'" sovtL: l::ra:.o^:^^^";"':^ .ioner can .a.o':;„: Lr.rt L' tZ" ^L^r ''^^ ^"f one or more of the deviseo. n.. fi '^ ^"^ ''^^'^''^^s ceased e,,i,d.„ „r to::::;.:,^: zra^;:::,r" ""■ ^rd .Id raft::;:,::;, ir-^^^^^^^ a.Kl codicils whero do„Za„d dll T'""' "^ ™'''' "•'■" T».« f II • . """ois and diflerencos of op nion oxi^f " the 8th Marr^h iRflo vu x ^"' and testament on oonnected witb bi„ therein, indu'oed tbo t statordurinr."- * !).,,.,g in, armed petitioner that it was his 192 i!i Jl IIK E8TATR OF SEAMAN. ber, 1862, should only be nmd« use of in the event of accounts or claims against his estate as tl ve,n mentienT/ being made; petitioner, previous to taking 0X00^^^' tator's will, consulted the said R„f„s S» aTt^o^fh:,:: ■ng trom lum that there was no intention of makinir am- accounts aga.nst the estate, as in such codicil reforrld to^ was not then proved or included in the said p obate 1' subsequently the said Rufus Seaman having irformed 1^ tloner that such claims would be made agalst 1, ? fatlfe ' estate and petitioner being aware that these d mandate ' said Hufus Seaman that ,„ such case the said codicil sho.H be proved, and file,! in the office of the Eeristrar „f p! , at Amherst, which has accordingly been don'e '^"''^" Ihat an inventory of the real and personal estate „f .1 testator has been filed in the office of'the aid Reg strl o'f Probate, and although petitioner was desirous of havClt real estate divided among the several children and hfir" the testator with the least possible delay, he found that „ consequence of the peculiar nature of thel usis and bcal .n the testator's will, and from the fact that parts of such estate were mentioned by him as having bee'n allot ed .^ a bntlf '"■.""•' S™°''«''"'i«». »"» J«-bod to „ii„ b, the testator : to b I Cl::' "'''' »iMi.otion with hi, i', ,bat »ucb book is in, ,„^' ■* ,""' '" .e»»ion, roa,ly to be pi,,,„ced as directed Iid ! ' ^'"■ i» hereto aiiiiexod, "irected, and a copy thereof, That testator hud also, provioiislv to thn .;„ , , • illness, deposited with petitioner a wrto! "'■'"' '»" l"-.".»ho„inga,uUI,,ti„e,Lfp"rtU,of i T'' "«""<' ^^ l.i- children and heirs, whie , an ,,;;' "'?.»■""»« allotments made in the book reibrre „ b 1 '"' ™<' .11 the parcels of land therein deeribed ""f '""'"''" cliai-ges made therein. desoubed, nor the other That this book and paper writino- linA tl,„ j . , .fter mentioned) contain all th ll Lm^ts ! h^""''' . '.'"«"■"• his estate made by the testator „ I . '^"'P<"<»^'^' ««ral love and affection, testate .^dp^: '"'l '" tb amount they were to bo charged tlZfor wa L .'• """' ".the book so kept by him, whic!, book dt TolTn" 'r' Plaomg a value on the lands described in the s^el "" That some mouths previous to the tim„ of k !. te-tator directed petitiLer to prepare "rhe tjT' "" ^eymg certain other portions of L marsh Ldst, T""' -«er,.ard» ..own to pet.foner by the testator, signed by W^" m 194 Tn rk estate of seaman. and petitioner was informed by to«tator th.it they wore exe cutod by bun n. escrowH, to be debVered and take elFoct niwr bm death. Such deeds, six in number, bear date the Uth January, 18C4; one a joint deed to bis two nons Gilbert u,,,! Uulu8, and his daughter Juno ; <,no (o the chihb-en of his ,lo ceased son Jame« ; one to the children of his deceased snn AmosThoma8: und one to each of his three daughters A„„ Mary,and Sarah; which deeds, during his last illness the te^ tator informed petitioner were then in the keeping of I,is niece, Emma Seaman, from whom petitioner was directed lu- him to receive them f..r the benefit of the parties to who, they professed to be executed. That such deeds were so received, and with the first mentioned deeds to testator' sons have been placed on record by petitioner. ^ Your petitioner is desirous to submit these facts in conno- tion with such will, as affecting the administration and distd bution of the assets of the testator's estate, by way of politiun to your lordship, and asks your lordship's opinion, advice and direction as to the proper course of procedure thereunder and especially on the following points :— lat. As to the validity and operation of the codicil to the testator's will, executed on the 22nd October, 1862, witnessed by G. W. Cutter and Chas. C. Seaman. 2nd. Whether tne book referred to is legal and valid • and to what extent, and in what manner, the charges and entries therein made will operate in the distribution and settlemeDt of the testator's estate. 3rd. Whether or no the deeds above mentioned, or either of them, are so executed as to convey the real estate therein described, a-^d, if so executed, whether the consideration moneys therein mentioned are the values to be placed there- upon; or, where such consideration is nominal, if the value put thereon m the said book is the sum to be charged there- for. 4th. If the allotments made in the book kept by testator, and the properties described as conveyed by the said deeds' are held to entitle the several parties to whom the same are so given to retain them at the value put thereon bv the tes- tator; how the residue of the real estate is to be divided and in what manner the value of the same is to be ascertained tniiiiil lor th Wallii exocu acres ill the select, desire place J ted to to him the 8U| such n And on toes, w provide settled his heir the said uses au( 11. A my Mini the profi thereon, McFarla of the sho fah Cove for one q\ that breac reefs and houses, ate of every A to hold t MICHAELMAS VACATION. 1865. 195 AikI also as to nnv 'itwl ..li *i -"1' «■""- ''-^iV" ''.i^r::::,;: ':; '"'" -' " exist." ^"lOMJiicoa ot opiuiou niiiy •eio.,, ,ioti«,„„e, ;::u"; ,. ; ; , •:„™;. 7"'7. ™.>-.,f ,„ tlie support, and iimintermnce of a nnM.V. '""""' «-•!■ - cr .« i„ i,i, j a;i:,r 1 1 1 "•■ *'"■'"«" '■> And on further tr,.t that soT T tl ,1"', ""'1"""" tiie», whotljer individual „r ;„„ . "PP^Viil triis- provided, and the p p L a„d o^,-Tf ', ''"" '"'™ ''°«" .Cled and e,pre»"ed , 1 the J U ll" ,'"^' '"™ "'"'" M. I,eirs or assign,, „. „ el,'! " e aa rr d" fr^'"'""^' the said trustees so to be provided .0 . t "'"'"'"'"'>' '» -s and purposes, and objeoras'ltelaid "" '"'" '"''^' Jl. And ivliereas the iinmediato division ,,f .1 . V Minudie estate, called the Joglr wo„M ?"''!'°" "^ . e profitable working 0. .1.0 quaffs ^.Tledge'^fT™" '" tlioreon, 1 do therefore oive and d«,!,l , ., freo-stono M or. quarter of a nltZTfZl,:'it'^'' ^^'^^-9 that breadth along tl. „M. „/ thesZ to^^Z 7 """"'^ -/, «„rf ^uarrie, of stone\h^Zl^%'Je^*2:°'V''° Imse,, s^re,, iuMiu,,, and appurtenanJandJ -'l ''" «/ ever, kind th^reon^r therJoMong^Tor Zo.t T"^-"" day of my death for and du r>ng and i9C In re estatk of seaman. until tlio full onfl find form of fifty yours, from tliptioo to ho complotcd iind ended without any mnnnor of iinpeaohment ol waste,— upon tniKt, novertholoHH, and lor the nsoH, otidfl, and purpoHOs following— that is to my: upon trust that the' Haid Alexander McFarlano, his oxecutora or adminiwtrators, Hhall enter into and upon and possesM the said described premi.ses and any part thereof, and shall durinj^ the said term in an.! by 8uch 'vayB, manner, and means as to him or th(!m .sliiill Heeiii ino^ adv -..agf!ouH or advisable, occupy, use, and vvorlc. m cause 'o .ocupied, i*«e(J and worked, the said premises, m4 Mio ciuarr»*«9, ledges, an't reef^ of froc-stono, and other niattfriVil« and minorala therein or thereon, or portions of tlicm tthd the produce thence coming and arisin^r sell or dispose ol |o tbe u. 4 advantage, ii"d also from time to time during thr- w4 lerm, and as often as lio or they shall deem it to bo ad vantilgut;n« md advisable so to do, 'Mmise, lease, and let the said premise or portions thereof, and tho said quarries, reefs, and ledges, or portions thereof, for such terms and periods of occupation, and on such rents, reservations, con- ditions, and agreements as he or they shall think suitable and beneficial, and such demises, leases, occupations, and terms, renew or alter or terminate and discontinue, and also other demises, leases, occupations, and terms, make and create from time to time as occasion may require. 13. AtkI the remainder or reversion of and in the said pro- perty called the Joggins as hereinbefore described subject to the said term of fifty years hereby created, I give and devise to the same persons to whom and in the same manner and subject to the same restrictions as I have herein given the residue of my estate. 14. And inasmuch as several of my children and grandchil- dren have received and may receive from me advances in per- sonal or real estate or in bothj M'hich it is my desire should be charged against their respective shares, portions, or interest, in and out of my estate or some part thereof, I do direct and order and my will is that all advances of real or personal property, and all sums and charges of what nature and kind soever, which have been (or shall be) by me entered or set down as advancement to or charged to or against any of my chi! ';o't or grandcliildren in a book used (or to br used) by me for %• MICIUEWUS VACATION, 1806. 197 w, c, ■/ .ho vu:uo bo ■„,. «c.t .low,. „„J ,,o,,l„ro.l, tl.on at a It and ...torost „. ™.v „,u.o, ,„„i bo tako,. bv o,.oh of „u . d f ' Jro or grundo „ldre„ toward. l,i, „r Imr sh.ro o. my „ t 1 .1.0 d,v,„„n o ,„y ,„„p,„y „,.,„ ^,^.^ '-•""". /«< a, ro,poc., mycbildron and gra,«l.lnldro„ ci; .o,„e o ■ "'7 ''""■ '"^,^«^"'. '•' " r-V 'oai and I do o, lor tta a/TJ™ "'"' 77 P"-:""'' of my Minudio os.ato, wl.otbor 1" ' 2 or u|>la,.,l, v,luch by deeds executed or to be .-JmI „"t Aa» eouveyed or skull convey, or bavo expro.t dt^ . L 0/ pre., to convoy ,0 any of my childron or grandc ,il ron Z .hek I Have aimed „.■ AM allot and apportl, „ "f ' " , f''.''™" "f e' '-'''I''- ■'. and shaU paricularl,, ZZbeaZ and ^,or eir teu'tof'"' /Z' ''■''• """^ «''^»''- ^'^ ndthoh.,1 fLt: °"'""','""' """jni^tratora, to his, hor. 198 In re estate OF SEAMAN. to tlio hfTfx] representatives of earh of them so (lying, their heirs, executors, and adrniniatrators, and one such share I giv© and dovirfe to the children of my dec-eased son Amos Thomas, their heirs, executors, and administrators, and one such share I give and devise to the children of my deceased son James, their heirs, executors, and administrators, subject as regards the shares of my said diinghters Mary and Jane, and of the children of my said sons Amos T. and James respectively to the trusts, limitations, and restrictions hereinafter declared concerning the same or some part thereof, and provided that each of the said eight shares shall oomfiriso therein every piece of land which at my death shall have been conveved or expressed to have been conveyed by me, or apportioned or expressed to have been apportioned by me as hereinbefore mentioned to and for the party to whom such share shall be allotted, and shall have abated therefrom every such advance- ment and charge which shall have been made by me for or to the same party as aforesaid, and as regards all, any, and every my real estate which shall fall to the share of my said daughter Jane, the wife of George Hibbard, and which shall fall to the share of my daughter Mary, the wife of Edward G. Vernon, and which shall fall to the share of the children of my de- ceased son Amos Thomas, and which shall fall to the share of the children of my deceased son James, it is my will to place the same in trust, and subject to the restrictions following, and I do give and devise all and singular the real estate which in the division of my estate shall fall to and form part of the said four shares — that is to say : the share of my daughters Jane and Mary and the children of ray deceased sons Amos T. and James, to my son Rufus Seaman, his heirs and assigns, to hold upon the trusts and for the uses and pur- poses following — that is to say: to enter upon the said several premises, and work, cultivate, devise, let and manage the same to the best advantage, without impeachment of waste, and the rents, issues and products, and tlio profits and emoluments therein arising to collect and receive, and thereon and there- from first to deduct and reimburse himself for all charges, expenses, costs, and outlays by him incurred, and arisinrr in or by means of the execution of the said trust or anything per- taining thereto, and also a just and adequate allowance and re- MICHAELMAS VACATfON, 1865. 199 ward for his own time and oversight, and the remainder of snch rents, issues and profits, and products and einoliiraentH, ufter snch deductions to pay and apply as follows — that is to say : as regards such the remainder of the rents, issues and pro- ducis, and profits and eraoJumonts of, and arising from the real estate of, and belonging to the share of my daughter Juno, to pay the same to the said George Hibbard and the bhkI Jane for the use of the said Jane during their joint lives and to the survivor for his or their life, and after the death of the survivor of them to and for the support and education of tho children of the said Jane, until they shall respectively at- tain tlie age of twenty-two years, or l)e marrioil, whichever ahull first happen, and the said real estate of and belonging to the share of the said Jane after the deatii of the said George Hihhard and Jane, and as and when the children of the said Jane shall respectively attain the age of twenty-two vears, or be married, to hold to and for the use of the children of the said Jane and their heirs and assigns in equal proportions, as they severally shall attain the age of twenty-two years, or be married, whichever shall first happen. 23. To preclude mistake and misapprehension I herebv de- clare and it is my will that from the respective shares in my estate of the children of my deceased sons Amos T. and James, there shall be abated and deducted such advances as I have made to my said sons respectively in their lifetimes, in like manner and evidenced in the same way, as in the case of ad- vances made to my surviving children, such having been ray intention in these passages in this ray will which relate to sncli advances.'' The whole purport of the codicil of October 22, 1862, is that in case Gilbert Seaman, Rufus Seaman, or George Hib- bard should make any charges again-t testator's estate, such charges shall be deducted from their shares under his will. It also contains the following clause : — '' hereby ratifving and confirming my last will and testament, I declare the fore- going to be a codicil thereto." The codicil of 13th Sept., 1864, contains only two short operative clauses. The first of these conveys to Riifns Sea- man and James Mcintosh, in trust for Bphraim Seaman, the property conveyed by the will directly to the latter, and pro 200 In ke estate OF SEAMAN. vides that, ,f the latter shall settle down into sober and steadv habits, 8eanmn and Mcintosh may relinquish the trust am) p ace the property at his disposal. The second of these clauses appoints Uufus Seaman executor, "in connection with Alexander McFarlane with the same power and authority hs li his name had originally l>oon inserted in the will " This clause also contains the words » hereby ratifying and c,,,,- farming my said last will and testament, I decla're this to be a codicil thereto,'' Neither of the codicils contains any reference to either ti.e red or black book, or to any writings or docuraents.whatever except the will itself. The testimony and the documents referred to, and the vari ous points taken at the argument, are sufficiently set out in the judgments. The Court, being divided in opinion, now delivered huh. ment sertahm. ** -^ Johnston, E. J. The first question I will consider is one that arises under the fourteenth clause of the testator's will (Ihe learned judge here read this clause.) Mr. McFarlane has propounded under this clause a book numbered by the examiner 12, and distinguished as the black book from the color of its cover, and Mr. Rufus Seaman has propounded a book numbered 5, and distinguished for like reason as the red book. The question is, whether either of these books is incorpo- rated into the will under the 14th clause, and, if either, which 01 them ? An objection was- taken by the counsel of Mr. R. Seaman and the devisees represented by counsel, which, if well found- ed, would be fatal to the black book, and to a portion of the red book, VIZ :— that they were made after the will, and, therefore inoperative, under the rule that a testator cannot by any declaration in his will give himself power to affect the dispo- sition of his estate by unattested papers made after the will. The principle was not controverted, but it was answered that the will was re-published by the execution of a duly at- tested codicil made on the l.Sth September, 1864 and there fore, that the will, though dated ou the 8th March,! 872,'8peak8 MICHAELMAS VACATION. 1865. gOl from the later date, which was only a day before the testa- tor's death, and subsequent to both books. The codicil refers to the will bv its (Ut<> ....^ • terms ratifies and confirms it. ^ ' "''^ '" '"P'"^^« It is unnecessary to go through the cases which establish the latter proposition. =»i'»"iisu The ca,e of Mtorney General v. Bartwell, A.nbler 451, shows pmoMcd opemt,o„ of th„ rule,-a will „„.,,e bofb Ve Z SlHtn e of Mortm,.,,. bei„« brought within it, operation bv a c„,l,c,l made Hfte,-. In Barne. v. Crowe, 1 Ve.. Jr. 480 iZis p.,a.ha,e,l after the will pa,.e.l ,.,„ler it by virtue o, rep^WN 30, the rule h la, 1 ,Iown ,n some .lelail, a n,l Sir John NinhdJ .sto al , tents a „l purposes a new will," „,„, („ "^i,, ,„,„ case o^Hen v. Maa.lock, U Moore's P. 0. C. 445 (1858 i" priu';rp!e js recogjiized. V'^'.'o; ine TI,o objection therefore, thonsh sound in principle is inap. able. a„,i ,t ,s uunecessar, to notice the numerous Co' 1 "• "» /••PP»«,->he will speaking from the 13th Sen le nber. 1864. after both books ha.I been coa,plote.l. ^ tied 1 thonght ,t needless to say more than this. Had I eauK^I, that one, ,f not both, of ,„y learned Brother, differs I .h„,,M have felt ,t respectful to treat the question more at The view taken I understand is that, though the codicil repnbhshes the will, that republication does Lt affect he ai, U^T;: 1 '" '7 '""■ '""■ "'" P"'""- -'^ <'-ds referr d to . the 15lh clause, because they are not specially referred to that view It seems to me to lead to this incongruity-that .e repubbcatton would be partial, and mutilate fhe will ad ^ would make the testator speak as regards one part of s w,ll from one date, and as regards another part from another I take the distinction to be this: Where the .,n„tte-»d kl^her 'rT'^^'y »ffi--e>- from the codicil dre^^ tlien there must be refereuce to it in the codicil, but 202 In re estate OF SEAMAN. when the testamentary efficiency comes through the will, then the reference to it in the will is all that is required, and fho codicil has fulfilled its function in giving the will a new duto by its republication. The cases are, I think, equally opposed to that view. What else is meant by the Judges when they say the will speaks from the day of publication— timt it is as a new will ? If this be law, then the testator on the 13th September, 18C4 spoke in the past tense in relation to that day, when iu tlie' 14th clause he referred to a « book used " by him for a par- ticular purpose. It surely cannot bo tliat on that day he spoke of a " book used by him " before the 8th March, i862. ^ Sir John .Vichjls, in Rogers v. PUtis, says :—'' The repub- lication is tantamount to the making the will de novo it brings down the will to its own date, and makes it Sf.eak. h3 It were, at that time. In short, the will so republished i* to all intents and purposes a new will." This is surely very clear. So in Allen v. Haddock. 11 Moore, 452, the Court said: "A republication of a will would amount to a republication of whatever antecedent papers might answer the description of codicils, leaving it to be ascertained by parol evidence what might be the particu- lar papers answering the description of either will or codicil." And again, p. 445 :-•' In the numerous cases to be found on the subject of republication of a will by a codicil duly exe- cuted, and which, in effect, is equivalent' to a re-execution of the former instrument, it has never been held necessary that the codicil should refer to the particular papers containing the will, so as to distinguish it from all other wills." Again, p. 453 :— " It is sufficient that the description should be such as to enable the Court, when the evidence is produced, to say what is the instrument intended " The cases cited from 1 Williams on Executors, 194, an93 In Gordon v. Lord Rtay. 5 Sim! 274, an attested codicil mi.hraied a wi I, |,„i took no not:-™ f '""srea omiicil niHicil ■ it w„. M . "*^ " previous unattested .".el , ,t was held that, a codicil being in law a part of a .Sc'dir"' '""''°" "' °""«"»<' "- -" -taWi'hed the rt scorns that this is directly applicable, for an existing .nttested paper sn.tahly referred to in a will is a part of he "lUs well as a ov.dicil is, and it is only on that ground that imbate IS granted of such paper Another oljieotion. if I rightly apprehend the armament ™ t at evidence beyond the will conld not be u^ed f"r .Joiitifvmg the document referred to in it It ,s nnpossibie to read the case,, cited on both sides, with- »t seeing that no such rule is acknowlodged in practice Weed from the nature of the ease, some'evid ne ™ h^ al.:.vs be required, with wliatover clearness of refere, ceTe foreign instrumont may be indicated in the will m the face of the several instruments, and then on the rinsic evidence. In Bod^e. v. Horsfoa, 1 R„ss. A Mvl e 25, a plan was referred to in the argument. There weie one e, l*lt"': "'" '™' ""™P-«' """ «- contents I *b I h that one and not the other will. I„ AVUn v. Mad. «, 11 Moore's P. 0. C. 440, the admissibility of parol tes- ' "lony to Identify the paper referred to Jn » Jn .-. f! !./.° »8i™ed, and the distinction ren,arkod 'on'b:;!!;;;;^^ (•! 204 In re estate OF "SEAMAN. to prove B testamentary paper and evidence to explain its meaning. The real quesfion, as I consider, on this branch is whether there is sufficient evidence of either book to satisfy the re- quirements of tlie decided ca.ses-or, I think the point will more accurately perhaps be, whether between the two snob uncertainty is not raised as to preclude both. The rule is well established that before an unattested in- strurnent can be admitted to incorporation with a will, it must have been referred to with clearness, and its identity proved with a degree of certainty that precludes mistake. The testator has referred to a book used or to be used by Inm for a particular purpose. Reading as I do the will as if It had been made on the 13th Sept., 1864, when it was re- published by the execution of the codicil. I have to enquire whether on that day there existed a b.)ok that had previously to that day been used by him for the particular purpose ox- pressed, and whether there is any evidence to identify any particular book as being that book. For this purpose the internal evidences, extrinsic evidence, and declarations of the testator, are admissible and legitimate. The testator in this case had, as testators in multitudes ot other ca^es have had, that disposition which is congenial With our weak and infirm nature, which aims to control and regulate the appropriation and mm igjmant of property iij the hands of their heirs, after their power to exercise tiut control in their own behalf should have passed awav. Ti.e evidence is abounding to show that while Mr. Seaman de- signed to make an equal division of his property among his children, he designed to do so in his own way and according to his own notions of their convenience, and of the relative value ot different portions of his estate : and also that it was his purpose to charge against them respectively the lands which in his lifetime he apportioned to, and the moneys he advanced for them. To make a clear apprehension of the subject, I have found It necessary to institute a c'ose analysis of the contents of each of the books, and to submit the two to a careful com- pansoa betv^eea themselves— the 14th clause of the will e to explain its MrciUELMAS VACATION. 1865. jOS Lcing kj.f,t constantly in vion-, as the light by which to r„„i »nd to rt«termino their respective elain,, '""^ IVoceeciins then with the internal evidence, I begin with the red b„„k „s the older. Thi, book cumraon es at t , ea pored, w.thth,, entry on the i„»ide „f .!,„ ,„,,,., „';'"'> |814,_tl„s book ,s intended by ,„e to make charges toeaj: member of my family, as occasion may require from tir V mne, as . ..y .,,,,„. j„,t and eqnal and'rig^'t 'be rmy ,le.ra to make all eqnal as regards my real and p„rsonaLr„ porty wh.ch may be left behind when I leave for a bef;;, Tl,e first foar pages are in pencil, commencing thus • " In .l.e d,str,bnt,on „f lands in ti.e village among my "mil, J propose as to ows"-tl,en follow specific allotments o".',;] 10 l.,s nine clnldren-VVilliam being then alive •- her, „ r .mproved nphu.d being stated at .£10, and of marsh at 1,5 » lesser rate ,s ,„ some cases mentioned on account of ]„fer '^ quahty-,n some instances the whole quantity of tl e „, given and the aggregate sum set down as its value TU " pages conclude as follows,- " Big marsh to be equallj div ded in quality and quantity, £10 per acre all rennd-jl.h , t provided for eqnal with the rest, all other lands to beeqiUv divided. January 24th, 1846." i-qnaNy I have been thus particular, because it is a striking f , .Hat the testator preserved not only the gener ^ ^1-1° he e laid down, but to a great extent the same specificaS and dotads throughout the long interval that elapsed tm Z « M .."'rT^''-^'^"' " '" I""™ "'« bo-e'tead An„ (Mrs. McFarlane) a portion ot the manor farm • Sarabm Mitchell) the other portion of it. ' ^ '^"• Another page of pencil writing follows, in which the testa tor has entered 1 "March 25th, 1854, this day deeded lands onJoggin road to — • ""^ Rr.fus, lot 620 acres, at 203 jfo^n Gilbert, lot 558 " » "..'.".'.'** 5^ Jamea, lot 614 " « .._ g.. „ which entry corresp<.nds in every 'p;;ti;;iar with the three deeds m evidence written by William, except that they ex' press the consideration to be love and affection. 20G In re estate OF SEAMAN. 3i#i The page containB some further proposed allotrnentn o, part of tho red book. **' The second portio,. is in ink, with a fo^v entries in ,>oMoil and ,s kept .n fonn of h debtor account against each ch ' T.VO of n.s sons and throe of his daughters have char!' against them of personal property, viz. : Amos Thomas £5oo wh.ch H rehn^iuished l.y a note written at the foot Cf Hccount, m c.,nse"? f "" ™"'» »" Tliore are intimatiims iriveu I'n n,„.„ . monte had been ,„,„,„ „^ ,^1 ' I ,""■"" """ »"'"■ »l» i"»tr„ctio„, that oH , '!ir , ^"" specified; and -.-j.;e_ht^r:„:rr;:df''''''^^-^«' partof the book are m„ ,!; '?*.'^*'' "'""-S;^') '" the second •i«twhiah,a,I Cs^d r. '" '•" ""■"' P"'' "''■"'' '^ It is ha,;.,, p„,:::,:ro' b ^Ttir mi-'- abandon these charges seeing- ,hl < \ '«stdtor intended to ™a«ng of the .mZrZl^,^ ZT^"""'"', ''" weeks; and the book itself gives LiLt„„ /rr' "'™° tioned) of the testator's intention thaT '^'" ' ''*™ '"™- portions of the big o.arsh si:. ,tr j';r:;Te'sh''''"1 the parties who had received these portion, . Ih.3 propounded part of the red book 'thus fail, i . .mportant particulars. It does not bring forwad^e .h '" contamed in the previous part of the bfok whHe » I*'®'' me port on of fhesa oh«,-o.L • ' ® '' '■"'si's to clefi,.,! „ „,,st ,,° f? "' * "■»"•'-"■ «» vague and «„. --,~ n>.st have led t„ confusion r.nd uncertainty, „nd 208 Ik re estate of seaman. t .e probable fru8tnition of tl.o testator's intontion a« regard, tlK'so cl.arges; and, what is more to the point, it falls short of meeting; the desire a..«n-Ms tl,„ inter,, ::;" " "'" '*-^ '-k. a.,„l„„ry cla„,c o„Kl,t „„. ,„ , „'"."; ' '" "•'"'""S of tl,e »; l-i„her„re pron'Lr': r:„7 .t ^ '^ I- -'" ''.v n,e^ Ao>.l,l co,n|,ri™ the la,„l ti,.,. 'u ,, '""''' l'»''3'» »haro aforesaid. ^ '""''" "'■ '" the sa,ne party as n,ivi„g before i,s tl,e will a„d ,:„,,. »«ces»arilv arise,, ,vby tl,o test . , ?, ^''°^'' "'» ^"V'^y '"^' I'ook? fle'teilf "r,, ■ f™" '----.do „ ' ,„: Pondently of a„y <,„e,aratio„ of L and d,'? "' ' '"" ''"'''-•■ ■;''" <""1"'0' solely f,.om t|,o book, , , « ■""• ""^^'-o'' l'»'iitrefieetedfro,„U,o,yill 1,," „ ""'■"»f'«», '^ad i„ „,„ »l =oncl„.,-o„, „„d „„•, ,-3 ' ;,7 ° °™^ '"be but one ration- ™».d of his i„,e„tio„ as evD,t- r'*"f '' '° '"' "'« «"«' "■'-ting together the elem „ ff "' '''° ""' <"»-«, ''^ «»>■ diminished the sha-e of Z , "f'''^"''!/ benefits- *;ve yalne depended':. tL^Lr-r" '""'■ '"' "-> ™We ;re;o,S,'en,;"fey„';. ';;';;'">' -"^oo an i„„ea. ■ ■ "»y ret be noces::::^:: :,":!, 't' ""'■''="- indationof judieial co„yi°o,io„ "f'"''"""""' "'"J 'o surahl( ext 210 In UK ESTATE W SEAMXfi. From the ovi.loiico wo loaiii thiit tlio rod book luid l„i,g 1)0011 known to tim family, ivnd hud, at Homo tiiito, boon gorioi fiUy accoHsiblo, l.oing kept in an opon tni.dv in tlio tostator'rt houHo— that littlo moro than a month buforo hiH death the testator gave it to Mr. Vernon, his non-in-law, saying, " I want . you to take this d.)wn to tho boys (meaning his sons); tell them thi.s is to bo tho final division of my estate, as tho book will show them"— and that at a still later time tho testator asked his son lluliis if ho got tho book from Vernon, telling him " to keep it, take caro of it, you will soo by that huw 1 want my pro[)erty divided." On this evidence it is that tho red book is sot up, either us tho book referred (o in tho 14th olanso, or as inducing so much uncertainty as to neutralize both. Tho history of tho black book wo receive from Mr. McFar- lano. lie says ho bought and gave it to tho testator, and ex- plained to him tho difficultios that might arise from tho discrepancies and entries in tho red book, and desired him to make what entries ho intended to make in coni>cction with Ids will in tho black book; and ho says (lino 12G0) that the first time ho saw it after ho had given it to tho testator, ho (tho testator) said that it was tho book kept by iiitn in coii- noction with his will, and that ho had made tho rod book imll and void. Mr. McFarlano further testifies that on tlio occasion of the execution of the codicil the testator conversed with him respecting his estate and its distribution. Among other things, he says tho testator '' stated to me that tho book —tho important book kept by him in connection with his will — was in his rod box, where ho kept his money ; that this book contained his directions respeptin^ the disposition of his property, and that ho relied on me to see that his directioni! as therein given were carefully fulfilled. Ho said that I would get the keys of this box from Mrs. McFarlane, to whom he had given them, and to take the box into my charge. I then took two keys given me by her and put them into my pocket, one of them being the key of the red box." Mr. McFarlape proceeds to say : " This conversation was the last I ever had with him in reference to his estate. lie died the following morning. lu the course of ^the forenoon I took posses- mCHAKlMAS VACA Tfo.V. ,865. 211 "°" of tho rod tr„„I(, „,,id, r l,.i Onoponi,,, it r found .he,,,:: ."'r'' ,''" "'"I" "'"' ■'"'•'.■ mo ,w tl,o book )(,,„( I,., I,- , . ". "■'" '"''"■" ropoutoclK. »l„„v„ '.oo,..o i„ w|,ie,, „ „,„„ , " ""-^ o ,|,e ca.,.H,. f,„ j k,„„; '° "0 "-'-p tod, at !; tC^'.;::' •;,"'r'""'™ "■" '''-•'—" "'■'■""""""'-•ox wl.ici, „xcI„do ■„, ' ."."'"""or, ,u„I „„,,„ siib.soq„„„t|y o..e,.l,lH|„„| • for if ,J" , •'''"5 ''"<""noMt bciog «| ..oineod wi„, „,„ „(,„ J e , N V i'V ','"« ""'• '""' "'"' It "m«t bo b„r„„ i„ „,;,„, " ;. '' '^ ' , '"" 0..0 objoee. '«''. 'PO"ks at tbo „,omo o , V:"'- T ' """'-»'""'J ".0 ■""' '''■',' "''"'omponu.ooosly I ',:in'''r "'' "'o oodioil ; whore .1,0 boolc wu., .lopo.iL Z' f„ """"^ '""'■-"»» " toMa.or, af,„. ropJati,,.. ,„ " j, "','"^' '""I"i^"lo"t to clan,e of my ,,i|,_,., j, ,1,'"^° "~ '"'» »<"tod iu, tl,i» ;'»-^. »"" with bi. o,v„ b ; t °i to t,"' f" 'f'"" f^"- "'" t". U9i"g liko words. ^ '° "'° '"""' of '.is exocu- »«xiir:di;r;tt:r:r '-^ '■«'. ".0 i..-«bo.,. dogroo-:b r ",;irb:"™ ■""■"'■ -"' ^°"' .f constraining force, contradiorr.d "''''T'' ™"'^'"'".g - „-o. : ..., i. not tb:raV.rr.r --i «"' ... a few instances in va n Zns 7," T'^' «'"' """«■ • «..« black book containin.. more t,b ' .^ '''""""tion lies i„ •»."» "otl,i„ J more than w°bat hco ' , ' ""'" ' •"" ''t oon- .«Pl«.-..od in tl,o eviden eoV •';'"'/'■''''''»'"■". or, ^ y- Tbe origin of tbe bl'a 'oe " ."et '" /'^ '^' ''°ok twy raaiiner: for if ;. ; '^"ook is explained it!) ; ^;.... loru ,8 impossible to examine the ','''*^ ■^^ rough uuliuished pencillin^rs an/^ML'^f. "'^ ^«°k.' Pencillings and obliteration '8, not to 212 tn ke estate of seaman. see tlio expediency of a record more regular, clear, and certain. The black book is itself the evidence that the testator did in fact make one more regular, complete, and certain ; and in the very nature of thing? I do not see how we can give the testator credit for the most ordinary measure of common sense, and yet imagine him to have had any other purpose tlian that purpose which the book itself evinces. And when the evidence shows that ho carefully preserved it in his own possession until death approached, and then directed his executor where to find it— and where he did find it — to say nothing of the testator's dying injunction to see his direc- tions carefully fulfilled, and all this after the conversations testified to by Vernon and Rufus, I find it impossible to believe that these conversations establish an intention as regards the books contrary to the conclusion that the evidence otherwise irresistibly establishes, or raise a doubt adequate to neutralize that conclusion. Mr. Vernon's testimony is that the testator said: " This is to be the final division of my estate as the book will show;" and Mr. Rufus Seaman says that his father's language was, "■ Keep it ; take care of it ; you will see by that how I want ray property divided " — referring to the red book. What the book informed his sons principally was that eacli child and the children of those deceased would have an equal share of his real estate. They knew that to some extent he had anticipated the division by specific appropriations, and the book itself showed that when he wrote it he contemplated further appropriations ; but all these, they would understand from the book, were to be subordinate to his leading purpose of equality in the division. The testator could not have said this of the black book; it was confined to the object to which the 14th clause of the will was directed, and gave no intimation of the proportions in which the heirs were to inherit, and would have given his sons no assurance of the equality he designed ; the last part of the red book was rather an abstract of the will, and seems to have been made with a difterent intent. With tho facts in proof— with the objects expressed in the 14th clause, — for a Court of Justice to interpret what the issod ia the it what the MICHAELMAS VACATION, 1865. 213 testator said to Vernon and Rufus as intimating a strict divi- sion according to that book in all rospects-as an intimation that ho had abandoned all charges for advances, and had snice that book was written, made no further Mllotmont^^—' would, I think, bo to give the evidence a moaning hir beyond Its reasonable import, and bring it into conflict'with a ma«8 of evidence, internal and extrinsic, direct and inferential of the very strongest character; leading to a conclusion consis- tent, clear, and incapable of two constructions. The object for which the red book was sent to the sons may ulso be gathered from the statcunent of Mr. Knfus Sea- man, that when his father came to his store, " he said ho had made a will, ,n which he -considered lie had divided his prop- erty equally among all his children, all to share alike." And there is evidence bearing more directly on this point in anc ther part of Mr. Rufus Seaman's testimony. Alluding to his conversation with his father in his store, he says he •' spoke of the homestead; said he intended it for mo'; at the same time ho referred to the book sent me by Vernon ; said, vou will see in the adding-up that your share is not equal toUie rest, but when this place is added to it it will make it more than equal." He " spoke of the top of the hill as being a desirable place for his son-in-law. Dr. Mitchell, and said he ought to havo a building lot there ; he then told me that that property was to come to me through Mrs McFarlane ; he said, you have blamed Mrs. McFarlane for inteifering with our business, but to show you that you are mistaken, this property will como to you through her." Now before it could come through her, she must receive it : and so Rufus understood, for he adds, " I said, perhaps Mr. and Mrs. McFar- lane will not be willing to do what they have told you they will." He said, " I have every confidence in Mac and his wife that they will do what they have agreed to do." Rufus knew that the homestead was not given to Mrs McFarlane by the red book, and, therefore, that it must be given by some other document-whether will, deed, paper, or book; and he must have learnod when his father told him re- ferring to the red book, that ho would see by that how Ha wanted ins property divided, that he had not intended to exclude other allotments besides those comprised in the red 214 In ke estate OF SEAMAN. book; because hero was a property, which some of the wit- nesses value at £4000, not comprised in the propounded red book, and yet separated by individual appropriation from the residue of the estate, as his father's conversation clearly inti- mated to him. This leads me to recur to the contents of the black book for the purpose of considering the two last pages, which I have hitherto abstained from doing. They are important from tlie value of the subjects treated, and from the influence they probably exercise in the controversy. By tho first of those the testator says : — " In addition to the lands I have set apart to my daugliters Ann and Sarah, 1 further allot to them, jointly, ai)d*to be equally divided between them, all that part of* ray Minu.lie estate at present occupied by myself, etc., (descril)ing it), with the wharves and buildings thereon, at a value of £1200* —Done at Minudie this twelfth day of August, one thousand eight hundred and sixty-two.— Amos Seaman " Knowing, as wo do, from the evidence, that from an early period tho testator intended the homestead for his son Ruin'-, this appropriation would seem most unaccountable, except for the explanation given to him by the testator. It is to bo regretted that no elucidation is afforded by the evidence o\ the reason of this arrangement, and of tho time and mode in which it was to be ultimately concluded ; nor any explana- tion of the cause of introducing Mrs. Mitchell into the bequest, which seems in some degree incongruous with the object stated by the testator. Yet I cannot but perceive that the correspondence, as far as it goes, between the state- ment of the testator on this point and this appropriation, affords fresh and strong corroboration of the authority of the bhvck book as being that by which the testator intended the division of his estate to be controlled under tho Uth clause of his will. I cannot pass from this point without saying that it is to be hoped tliat if this appropriation was made by the testa- tor, under any agreement that the homestead should be transferred to Rufus, as appears to have been the case from the testator's language, and from Mr. McParlane having since bis death said the homestead was to belong to Rufus °no un- MICHAELMAS VACATION. 1865. 215 necessary delay may occur in executin^^ the trust which .uch an arrangcmc>nt raises, and which thi. Bourf, has now r tot II1.V} tern to lotxid tl,<, actllumont of tho estiito. 1 l;o last entry in tl.o black book reoitox tliat the testator con,,,iored b,™,,elf to have been decoivod fn tl.o val o of 8tock ,„ a ga, company, in .ome bargain i„ whici, Mr. Hibbard was concerned, and in c„n»eq„„nco he dnects $400(7 to bo r ^T, r :,r :: '^f!"-'-- (;'"• "i»'-d), and dcdlttod iron, hei sine. J h.s entry ,s dated Dec. 1st, 1802. There tae, and stated Ins ,ntent,on to make the charge against Jfr. n.bbard's share This entry in ,h„ black book^furnslr to conh m ,t. Indeed, when tho testator, in Aniri.st I8B2 and aga,n „, Dee., 1862, made in this black book 'so to arges, winch from the testimony of Enfns „s To :; and t ,0 es ,mony of many witnesses as to the other we know he des,gn„d should operate on the settlemen of hi (e,c nce-,t ,s a fact, that he, after the red book had been n,s,ed,used the black book tor purposes c.pres.ed in 14th cl,.„se, and so used it after he had entered in it the «.her^ entrtes ,t contained, thus giving a character to the Mr. McCully urged the superior claim ot the red book .e.ause ,t was tho earlier, and ingeniously argued that beTng be r tokJT " '"""'Po^'^d -■"' «« will, and could not be revoked by an unattested instrument ; but he failed to perce,ve that his argument on another branch of his case defeated tins: he had said, and truly, that an unattestdnstru men made aj^er the will l,.ad no testamentary force. W len he b ack book was written, both books were alfke inoperative . as t e republ,cat,o„ in September, 186*, that gave vitality the book used by the testator for tho purpose " of tho b fore that t.rae substituted it for the red book. The giving :: ^''."f..".^^™-' "»-.'" -"o™ were at the tiL ^x' , ,j ,.„„„„,„g ,,,^ ^|.^^^ ^^^1^ .^ possession »nt.l s.ve„ at the latest moment to his executor, a^e fll of 21G In ke estate OF SEAMANT. |tf.n f.a„co; nn.l finullv, tl.o luot that the recognition and '^'•^"r.l.cat.on bv the tostator of the l.lad; l.ook w.ro afWr |.|« eonversat.ons with Vornon an.i Rnh.s, wouhl .lotonnino the qnost.on, thon^^h tho l.oarin,^. and oflbct of thoso conversations w,.ro more weighty than I have taken thorn t., l,o. ().. the snl ject of the incorporation of nnattestod papers ma.,y cases were cited on both sides, into which, as Llood into every case cited for any pnrpose, I have carefnlly looke.l • l.nt he qnestM)n having been fnlly considered m hiter cases n. which th(,so previcns have been fnllv examined, I deem it imnecessHry to refer, except in the briefest manner, to tho earlier decisions. ' Smart v. Prniean H Vf»Q ''»r?n i'^ ., i , t ^, ,. V'««, u vts. oou, IS i\ leading case, aiu one nl tlu> earnest. There the au.ncelh. laid down , hat ini inl^^^^ "HM.t properly attested, in order to incorporate an instrument not atteste.l, mnst describe it so as to be u manifestation ol what the paper is that is meant to be incorporated, in such a way that tho Court can be under no mistake. It was how- ever, unnecessary to resort, to the rule there, becanse 'there was another decisive point. The will stated that the unat- es ed paper wouhl be left with a certain person, which ,t had not been, and the ChanceMor was not satisfied tho to«. ator meant it to have effect unless so left. What was meant by impossibihty of mistake succeeding cases show, ami, as we might expect, the expression is taken in a reasonable, not an unbmited sense. In mikinson v.Jdam, 1 Ves. & Beames, 422, the will desire.! hut ho observations and directions tho testator should leave for he better improvement of his estate, etc., i„ a book should be observed; and tho Court held that tho book which oontaieed those directions could not bo used for a ditrerent purpose. VIZ. : to prove his recognition of illegitimate children. In Croker v Hertford, 4 Moore's P. C. C. 3G4. by a codicil the testator ratified his - said will and codicils," held not to bring ,n an unattested paper, in which ho gave legacies: first, because .n strict language it was not a codicil ; and, secondly bejiiuso there was no identification of that particular paper. BeZwhy Ferraris v. Oroker et al, 3 Curteis, 499, was nearly tiie same case, having the same result. .-.- ..., ^ t.isgw3i. V..U. i>. s. 3li2, is very like MICHAKLMAS VACATIOX. 18GO. gl? i..'"'» of .„■. „..,e„„':,::, ; :;:;;::;"' '■■■"""■ ■•"<■' .i.o ovi.i;'„co to »lK n Mnt ; , "'"nt.lic.ion, them was „o ..'o.n»nt ,.„r„::;,;";;! :„ 'i;^':;;,' ,':;"""^:f -- "■» -■• faico tlio oth,.,- «-.Lv 1,0 '" "'""""I 'i'Mior tlinro was evi. lator.ai.l a 'iVTrrrr "•'"'■-''' ™''^^ "'" '- m.;,n V. /JZ A. * r' . r^'l'f "T;- ^"^■^'■^-' "•" '■■veral „n,„to»lcMl ,„:.,„„r ,1 | u """. ""J ''^■■""""•' ''^ «nl» „,a,lo a eodic I ,1 , Iv T '■"■"" '"' '"'•"■ "" """■- ol«....l »i„cu hi, win^^, ,""■'",':''■ T'"'^ "" '"" 1-'J» P..r- «ii ™„„„n,i,„ .;::'i r-^i'Li^ ; 7-- -p--" .■» Ilic trmtoex. ' ' "'" ''""™ l'''«"-'J to In 11.0 ara„,„ont, Lord n„,„„an put ,|,u ,,,.0 ^n .■n. Snpposo a man l.avirin- ,„-„l,. .. ,1 ■ , '•"■0 (P- fJI) :_ •"-tod, wont into di,t nt T" ?"' '""'""■'^^ "»' If- (™™.i„ni„, it) :';;:;d", ',::;„-;: ;; ;; [r-'^-'-- tlio property? ^""''' ^'^•'^o ])ass Dickinson v. Stidolph, 11 C B \^ q ^11 '^"""J ""d that was unliel.I Thn r \ ". ^ ""'^ '''''" »„f i , "J-""-"'- J '10 Court 8Jll(l /^n "XMW. «ui refers to two momoruif?.! Ti . "'^'"" (P- •J<-»u} : *' .She .0 a 'e»ta,„o„tar "fo7 :;: :f »'"'- '•«" »'- 'otors l«'' will; and as' no o |17 , ''''''"'"" "' '"''''« "i"' keen f„ „d wo on^^Ir f."";"-";'-^ £'P- "' 'Lat date l,as ...oof tho. towhi ! '! '" ■;" -"«.<^'-""'ly M-.tifiod as 'e^..lu>ry os ato wl °""«'."»'«^ 'l'« Ji»po»ition of hor '■• ^r„«„n a « . '. ' ™™S"i^«l '1." rule in ^mar* .oiu.r:n • : t ':r''''"'i ^"''" ""^""' -'--^ -' " '"'^"™'' «^ "'"'I', witl, the assistance of 218 In nE ESTATE OF SEAMAN. 1 pni"I evidence, wi.en neeossary an,l rrope.Iy admi«ibk leave no cloiiht of its identity. ""niasiu,. Now in tl.at case there wa., „„ reference beyond the ,] , an t ere wa, hut one instead of two paper,, L :ir 't' bnt a paper answenng that date wa. uphehi. JrV-n"- "'^'"°""' '" '" " ''""'' """'' f'"- " "Peeial purpose », n miHmonv.Mam,^„a the book prodaeod most ' •ectly eorresponds; while the proof of identity i„ ,hell'° case ,, more direct and certain than in that. ' ' ' The ca,o of the Goods of Graves. 1 .S>vabev A Tristran '.,0 ha, a strong bearing on tho natnre of the recmisito evi, l,; i' There the testator ma,le his will, <|ated April 22 185C ,1 gave to .arah Florence " so™e hon'sehohl fnrni , ,; t be Lvered to her ,n one week after ,„y decease, which shit got a hst of, ,f she lives with me at the tin.e of my death." , VVhen the will was e.Kecuted, the list referred to wa, ,„, prodnced. Sarah Florence deposed that the testator, „ b „ 7- 'r™ ""•'^-S"'-''™- will, stated to her, « bemg Ins housekeeper, that it was his intention to leave he .era hst of such fnnnture which he desired her to k«J l.e l,st was ,„ his handwriting, and began: " List of go,' that I g,v„ to my godson Edward Florence," and ended , I,,,: My v.ohn and clarionet,,'-) that when he executed his «,| " ' ^h,^,"" ' 'f ; ": "^"'■" """"'•"" '- '" '=-p "- on °d° ; '""; '" """ P"-^'--on, and that she ,li,l so „ m Ins death and that the deceased never gave her -..A other hst; and she behoved the same to be the one refcrrJ Ed«ard Florence mentioned in the list was an illegitim;,!. son of the deceased by Sarah Florence. S,r C Cre,swell._"The list purport, to be a list of cert,i. property intended by the testator for another person anj i, doe, not correspond with the one mentioned in the v'ill II I granted the motion, I should he extending the princiA lit ouTr'" f T "■ """'"''' «■'-'' I - not' nelineT : although I entirely concur in that decision " .n such cases. The person to be benefitted was the wilnc.| MICHAELMAS VACATIOJf. 1865. , , 219 to iJecIamtioijs of t!)n tn^^.^^^ . • i_ .i.l.<...«h discrepant i„ it, ,'„„'" .''"™ "^r"' '■'"'°''''"'' idt.„fi(ioati„„ I ,„,, i„ „,' 1 '"";■ I' " <"' '!'" individual J"%od a Pa^or'oxi Id ' 7-7,,^' ;.f7-;™ "'"y -"'' i' i» administer to tl,„ „„,„.,. ,r 7 '"'' ''"'"' '""'''■"•'' "> ^-1 - '" »t,o,,dT "^ ;■,,',,;:'•:;, "''"'^'^ '•^"■" "° ^<' t«*ti„e witnesses, enelosed in it? '"■':" "'" "' ""> »'• f»"-i to cont,' t ; t' .:^t "'•*"';''.".'" ^"™'"p" ^ ™™«yand „tl,er I.en, e,ts i th ' ' 7'''- '"'''° '""!"»»'» o' b"t nnoxected Whl^f, ,', , l'™J>vr,ting of deceased, >.»'i been opened anT e T';,; .".r""" """ "" ""^"'"P" tlio papers fonnd i„ it , ', "" "'''■'' "° "viJence that •■■0) «ro i:iiecr:i,r-;:'-'«''""!'^ "-'-«• - "■»« N» other testimcnl.,, envelope was executed. d..:y exec, ted ":"i,''r'': T"'? '""""■ "«'"• "■»' "- as the,, existing 'ad f^^ , "^ '» ,""■'• -"'«" ^-nment »»t pointed ont n s,tl '"' """ ""> doc'rafnt was "■-riain its"I it iTT^r '",""'""" "'^ ^""-' '» -re not entitled to 'p::b;tr7lrr' ' '"o"" ""■- PT"- « J- N- S.; .169 , 7 L. TUN S '723 )' ' " ''''"■ * *'"'^- '*, rf r ?x:::f \ f"?r-- p-::t ™ong the .estate "pair's vhl-h tl" ''r'"'' "" '<"■'"' prepared and <„,,do-° ? ■ • '" '"''"="°'' P^'od b= «.o codicilthat was eCecu d T T'^""'"' "''"" ''» "™'° was executed. Probate refused of the draft L'20 In ke estate OF SEAMAN. ^/*e C/oor/., of T. Dickins. 3 Ciirfeis GO Tl.n mi r ^77 ,. '"''"^"'^^» 'I"" P't>'>iifo WHS ffriiiited of 1,mH. ^//e/. V. Sladdock, 11 Mcoro's I>. 0. c 4^7 T.., • tins case is vorv oPilmr-vfo i . " ''^"'"^'o" 'n roforrod to ,' ' ^^ ^^ -"' ^;xl'-.sts tl.o snl.j.c.r. U;. ^^« 11' III ,1 J,ir(!r CilSO, with (U)m-nvil VA-, y» Graves, 1 Swal.ev .fe Trisf "50 ' n ' -m ^'''"'' '?^' o.iL; .„ L '1; , ;.f Birr""' ■''«""-■ -^ -«.■ H,.„ I "'"^""""l '" tlioJrawors in deceased's room •„»l « >, heknew of no other will e«ept one destroyed lo, X'fo »"8wer to ins question wlm was hp- ATAr-- --- ..rts lioi executur, answered oJ as tho papo,. re. draft codioil wit! ^p in IjIh will „|',j 'itiff foimd will, t|„. idd not HuflicitMit. 3 Curteis 57. Tli, luKsbuiid. VnAnik. The will rcfbrrod ranted of botj,. 7. Tho docisioii \n tllO HIlltjiH't. It i, il. Th3 Gaels of ^va,s not uttestd fittostc'd, find ex- last w";i and tosia- hut made no other id tliJit parol evi- trunk wan on the MICHAKLMAS VACATION. 18G5. • rix had appdinhid h;Iv her executors, was dated IStii ^vcies, and anidip a prominent wit- ressed her inteii- •^ her executor; rds the deceased sd him executor, f room ; that the deceased until ed to witness's the will in that ised's room, and yed long before. or codicil was ' for the codicil, it the decea^sed, 'utor, anawered ;*- >'■» will „..,,„„, „,,.,;,,„\ J ": ;," T- ""'';." HmiK-" Sir J. Il,„i,„„ I,,, I, . . , ' " '' , "'■" '» in «;,f„ •y will was „„t «, n o,!^. ' •',' ""r"*; ''"''' "''" "'"■'«'' ™iio.lwcro r„„„.l l,,T L / I'l"™ wh.r,, tl,o will ,„„| .i.ci, .1,0 .e»t,., i 'mL' :•::"""" °'-,'""' '^'^ "- >-'■ -; ->e no, ioo,,^:;;::;r: :■■;;-"-;--.. ilieie the statement oj tcstatriv fl..,f fi -n -n a chest was lono- beforn fl , i' ""'''^ was deposited ;- ..-.no .1,0 ^^::^:';::s:z:':i;':^ir'i t "r keepHig." 'V " i« in safo of the circumstances ^'''^° ^"""7 l«^os room fir thexV ''"^' "'"' ^""'P''^"'— Lo,, it 'o^tatri.. i„ t at case w 1"°° . ,"? ""'"^ P^P--'^- 'f "-o -■j,ata,i„,o wC^t:" t:'!:,":';:^"' ""''""^ I" "Iteration i„ tho circ,.m tance, ■ A T' """'""'o 'rank," it annoars to m„ .1 , ,' ■>' "'" '■'' '" "'it *y for aea?orf:r":theV :;:rr"''.i"'"r ■'^■■^'^■o - -- .^.asun m the ease of - ' would bo less ^ book or paper referred to than of a 222 In ke estate OF SEAMAN. ,9. r,t;;zr::::;i\r- ::;-;:;;:;; montiiry papor." And .wr.,;,, . « if «"'- t>i o\oi> testa. I 11.. "^"b" '^i Hll.lttllO tostlltliX krKMV namnlv ♦! . «l.o ■„, ,h„ ,e.,a,„„,„„ry p,.,,o,- „ other ">„;'/' .0.::.: .r::!'^!'™,,:,',:; :;;.:■ vi t't " "'° "-■'''"- own .i,„, ..,„„, , ,:„:::«■ L":: r:„:i'z o:-:;:,:- from producM.g tho conviction tlnit ti.o l.l.H t the testator did in this caso • ...ul t \, "'"""'^' ov,,,o„ce v..„„K, „„3 bee,, „eM suffieieut to oil'',- 'r;,!' My opioioii, tliereforo, is tliat tho book \o 12 ,lr.j,-n • , , as t 6« book-, i. tho book refe,™,! ,0 „ , I rl?! " of tho testator's will, as it spoke on tho 13 Sep In when republished by the codieil ^ ' '*■"*■ Under this clause is propounded a paper marked No !■! z:t^^itr:::;;:^::^-rti3t=r"' .^ho^..d,.e„b..h:cL:rtrc^:c:r ^ncilAELMAS VACATION, 18C5. 223 Jn this ptipor flio tostator savs that hn all f. * i • n.il.hen and their heirs in ..i ^'^ '"' ''''^'^^••'^' -n, for the v^^Z\\^ '"^^^ !;.;rtin.c.s,.rotho,sha,,inhe:r;:.t' r:;^:^;;:^ estimated value thoroof. ^^'»i, uith tho Mr. McFarlano depusos that this paper w.s nm, . , This was a paper exiatintr vvh(Mi thn fo«f.,f I >»., tliorefore, of „pi„i„„ ,|,.,t tl,i, p,.,,^^ is tl,„ , ' . ' .». the .Ml, cu,o of ,„o „i„ vviL", ™ ' : I,:: -^"^ "i-h have .,0,.,. .„..„, „,,,:;,;' T ,3 „t ":„tf :;: :f- .toi.3 are cnumoratod ill No 11 Al,. " "™ """^ vain. Ilie testator in Jauuan ISfiJ , ' "'"^' """''-■ ''^ '«iciera.io„. ^^' '^"' »•"?'■»''»« J •» bo f„.. valuablo i«. .0 ,ive t„o. ti. c,:;::o:::tft:s::t ^rpt: ^"'«- Iho no.t q„ost,o„ relates to tl,e codioil of IsV 224 In re ESTATK OF SEAMAN. Tlin recent Act of our li'i^isliitnro iiiidor wliich tlieso pro coediiifjs are condiiotefl, copied from u very modern lOiipIU!, Act of rnrliumeiit, is ciilcnlntod to bo very UMcfnl in fUrili. tilting? the settlement of properties in trusf, and in roliovin^r from nndiie res|)onsil)ility the trusteeH. To curry its npeni! tion lieyond the intention of the lepjinlature, and to mal« its proeeedin;,'s in all cascrf of questions of trust-interests the snlistitnte for a suit, would l)o injurious to tlio Hysteniiitic administration of the law, and danj^erous to the rights of par- ties, by removing the protection afforded by the forms tluit attend the prosecution of a suit between parties. The codicil asserted by one of the executors and contested by the other, dated 22nd October, 18G2, is a subject which 1 think is not within our present inquiries. Supposing it to ho within the intention of the Act, which I greatly question tlie inquiry, as regards its operation and effect, is. I think, preniiw turo, until the claims against whicii this instrument professes to be directed shall be assorted in distinct form: and tlu; same reason applies to the objection urged against the validity of its execution. There is, besides, a more fundamental objection against this latter inquiry. I conceive that inquiry belongs to the Pro- bate Court alone (as I suggested to the counsel at the argu- ment), and can only come before the Supreme Court in its appellate jurisdiction. That this is so, appears clearly from the case of Barnes v. Vincent, 5 Moore's P. C. C. 201 (1840), which was an appeal from a decree of the Prerogative Court of Canterbury rejecting the allegation and refusing probate of a will of a married woman made under a power, because the requisitions of the power regarding the execution had not been complied with. This was reversed by the Privy Council, on the ground that it belonged to the Court ol Equity to determine whether the power had been properly followed, and rejection of probate precluded the partv from Laving the opinion of that Court, " because, if probate be refused, the Courts of Equity can never know anything of the will at all." And again, the learned judge (Lord Brougham) says : " On both ^i'les of Westminst r Hall, when a power is to be executed by a last will, probate of the in- strument must be obtained before any Court can look at it or MICIIAKI.MAS VACATION, 18(i6. 225 iciiow of it^ oxistcMicn:" luxl ho cited liosa \. Ewer, 3 Atk. 160; Jeiijcin v. Whllehome, I fJiirr. 431. Tlio cMusu was s.'iit, back, with diroctiona to lulmit tlio allc- 4utit.11 1111(1 tiiki) fvidoncio to provo tlio will, tiikiii" mt 110 10 ()()\V(M* .•oiisidcriitioii w!i:itevor tlio oxi'culion of tl III Him w Ewer, Lu\i\ Ilurdwicko 8aid : '"'Wliovo w fanme mert lias ii sof,,inito powor ovor lior ostivto niid nmy d ispuso )( it by will, whiitovor sort of writiiiL' t*lio I loaves, it ou^lit to first pro|)(.uii.] >d us u will in tlio Hpiritiml Court," and Jenlciu v. WliUchome, Lord Maiisficdd fully 111 >. rule, rccosnizod tlio Sir FIo('l)ort Jeniu ilS;];")), folt his re.«jpoiisil)ility in rot 1-, in Or {(fill v. Fernrd, 1 Curt. 1 00 using probate (because I thought the paper to bo not dispositive) to be enlianued 1 tho siinio canse, as " thereby, so far as this Court mod, i)rechiding tho parties from rosorti 10 oni IS con- Court, for the purpose of obt .>triiction of the paper, ng to anotiicr lining its opinion on the con- I have, however, investigated the c ^crvo any useful purpose, I am roadv t ises cited, and, if it cai tho two points raised, viz: Whether it is test o give my opinion on irnentary in oiwracter; whether tho penalty it imposes is absolute or (errorcni. in On the qucalioM raised on the lltli clause of the will respecting the shore quarry frontage, I do not irivo an union. It IS uiiaeeossary to do so, as mv 1 propose t( rny learned ion arises lor avoid Brethren are agreed on the point, and the content on the frame of tho will, on which I would rati giving an opinion, unless absolutely required to do so. Tl... question, however, is of so much practical interest that I desire to hold my opinion free in cases of snnilar character 10 rhiit may hereafter arise ; and I mav, I re, be excused if 1 offer a few suggestions on tho subject as it has presented itself to my mind. Tiie leading cases for a restricto I construction depend ;ho locality of the devise or grai was held not on A devise of land in the county of Limerick ) convey land in tho county of Clare. My estate of Tedworth, in Hants, did not mean ihnt U narl- 220 In ue estate OF SEAMAX. r V. of the estate also which lay ont of that county. Wchhe SlanlcT/, 12 Weekly Reporter, 831. My eshrto at Ashton-for so tlio Court read my estate oi Ashton— on which there are prohiihjy many coinpeiled to Imn to the authority of the decision who may be unable to appro- ciate its reason: yet, so road, the case turned on the locaijtv of the devise. Doe d. Oxenden v. Chichester, 4 Dow's Re- ports (House of Lords), G5. Here the question turns on the word " betAvoen." Is its ordinary sense capable in any casre of extension to meet an obvious intention? A very different question from one arising on a restricted locality. My doubts in this case are principally nised by the case oi Pu(jh v. The Duke of Leeds, Cowp. 714. The opinion of Lonl Mansfield in that case is a worthy study. We see a f,'ro;i^ mind, fretted by the entanglements of technicalities, breakin- and casting aside the meshes that would control his reason" with an expression of scornful indignation not often found in the sober language of Judges, and a force of eloquence and argument not easy to resist. He there decided that the ol.. vious intention must prevail, and held th.at " from the dav of the date " was to be construed inclusive or exclusive, according to the intention. This reasoning was a[)prove/gh v. The Duke of Leeds was properly decided: but that turned on the construction of a contract between two persons where their intention was to be considered. But greater certainty is required in indictments." This will apply to wills. Ruller J., mi Doe v. Coruns,21\ R. 503, says: "In construing wills we do not look at teclini cal words so much as the testator's intention, which can onh be collected from the whole will." American text writers have given the word " between '' an always limited meaning, while they have allowed " to, from. and by " to be subject to the control of necessary implication. They do not explain the reason of the dillerence. Lord ]\ransfield having emancipated the law from tli« tyranny of one preposition, I hesitate to assist in rivottinp tlio fei 'vliolo ph'iie t Ilia^ roil 9 C{ lliero a to go wlietlie in«et ai should I If h( appHed learned who del and tha (p. 440) ']» bound re.>voon" ,„ay bo o.ton to ,«^t,,„,..n.u.,n.on,.W,^^^^^^ .piMr:;L,;x:;r';rrt;:;d''r;p"'-"'^r" l«un d work ,s tl,o snl.joot of 1,1.1, eulo^in.n h .1, jZl who < lohvored ,l,o opini.,,, „f tho Conrt in AlUn\. MuMof- (p. 440) ..In eonstrn.ng his wdl, tho Court ia ontitlod a, d " ''""'" "; .'■'"« "-1' ■•" 'I'e situation of tho tostalor with r spoot to l„s p,oporty, tho ohjcet. of his honntv, loo,'- .the o„.c,„„stanoo „,a,orial to tho construction- ^1 1,1 wi »1 lor tl„s p„,.p,«o to receive, if occasion roqui,es I'l' •:i!3,,;:,:irtt:r'''"-'"^'"--- On the suhject of the i,„eMon, a, ascertained from tl,e we,dsoftho w,llasroad in tho li«l,t of the sn,-,-oundi,^. ci" cumstanees, t ere socns little r„o,„ f„r dilfc-onco of iti , ' Ihe ,,rean,blo ot tl,o clause explains tho intention t be irectod to tho valuable quarries, and tho various rolh • ,„ ".clung n,anasen,ent „„,] .listribntion that follovf C ." . .cate the sa.no thing. The ovhienco shows that tho ™ Mc q„arr,os aro in tho covos. and that all that lie 1 wot ' m .1.0 restr,cted sense, aro of insignifictnco. 0,M s , ' l.e language of tho testator in tire red hook 1, s 1 ' ear,ng. After giving one-oighth of the big tnarsi, t, f -, 1.0 says : .. Also to have one-eighth part'of all u„ iv d J ...1 tl a n,ay not by mo be sot off during ,uy lifetime tol .erw. . full shares of al, rents that .nay" bo^oll":'. J ^ I1....C kuHls and Jogg.n ,,uarries, etc., which, in ti^e, under ,^»od management, may bo good value to ouch for £'2 7.U ' oy iho will no lands wore to bo tho subioet of ro„t c ' ., i-eiit of tho heirs except the Joggin ;:::;L:',::d .h'rst 228 In re estate OF SEAMAN, the testator lias set down for of\uh oiglith h too large, unlos-* he liad coiitemplatcKl tlio valuable quarries to bo ini-huled. Ho could not liavo embraced, in the description in tiie eloventli clauHO, tlio whole frontage in genora' terms ; for in the arrangement of his property he seems, according to the papers in evidence, to have designed Downie's Covo for present distribution. The question whuther Rufus Seaman is trustee as respects the school lands jointly with Mr. McFarlane, I think, must bo answered in the negative. I do not think that his a|)p()iiit. ment as executor in the codicil confers on him a special traM of that nature. I do not think tiie several and different trusts under tlie I7th clause are necessarily ins(;paral)le. Under the 23rd clause, I think the advances to be chart^od against the shares of the children of Amos and James cnii only be ascertained in the same way as in the case of tlio other heirs, and directed in the 14th and 15th clauses. Thus, I believe I have answered, either directly or bv necessary inference, all the questions propounded in tlu! petitions. I have given to this case the best consideration of which 1 am ca[)able, and which the interesting nature of the question and the value of the property demanded. If I have erred in the conclusions 1 have arrived at — and I ought to think it probable that I have done so -I am relieved from the anxiety that must always weigh on the mind of a Judge, who appre- ciates the infirmities of his own judgment and the deficien- cies of his own knowledge, when his opinion is to bind largo interests. In this case, if my conclusions are erroneoin, I have the satisfaction to know they are innoxious, as I believo they have not met the concurrence of my learned colleagues, and will not, therefore, enter into the instructions to bo given to tho executors on their petitions. DesBarres, J. This very important case, in which tho ■learned Judge in Equity has just delivered an elaborate opinion, 1 have not failed carefully to consider, and I have ex •iimii'.ed tho authorities which wore cited at the arcrument, i\M others which a research conducted together with my Brother I isits under tlie MICHAELMAS VACATION, 1865. 229 Wilkins has discovered. Witli Imn I l.avo more constantly oonforred than the many engagements of tlie learned Jud-e in Equity have er.abled mo to do with him, as I could have desired. Wiih that learned Judge my Brother Wilkins and I unfortunately, arc unable to concur in sDme of the conclusions i.t winch he has arrived ; and there are some points, indeed in winch my views are not entirely coincident with those' of my Brother Wilkins. But, in his conclusions as to the necessity of rejecting all entries in the red book made subsequent to the execution of the will, the black book and paper marked No. 13: as to the construction of section 11 of the will ,n relation to the r^uarrie.s: as to the effect of the first codicil of October, 1802: and. as to the question sub- mitted relative to the trusteeship of Rufus Seaman, I con- cur; and, without having written an opinion, I content myself with referring to the elaborate one prepared by my Brother \7ilk.ns, which I have read, and of which I generally approve. Wilkins. J. As to the first point of inquiry, " Whether am md what consideration is to be given to certain books, docu- ments, and verbal declarations of testator r (The learned fudge here read the Uth and 15th clauses of the will.) I did not, at the argument, understand the writing No 13, to be much, if at all, insisted on; but 1 shall, neverthe^ loss, consider its claim to I > regarded as incorporated in tlio will. ^ All of the document ; .pounded (the rod book, the black book, and writing No. 13) being unattested according to the requ.rements of the Wills Act, neither can be regaivled as a part of the will, unless its incorporation can be established y evidence that will bring it within the rule enunciated by Wd Eldon, in Smart v. Prujean, 6 Ves. 565, which has often been recognized as tlie only sa^-e rule. It is as follows • " An ' in3truraent properly attested, in order to incorporate another nistruraent not attested, must describe it so as to be a mani- tostation of what the paper is, which is meant to be incorpo- rated in such a way, that the Court can bo under no mistake.'' This Court h, ^vhen adjudleating hi the mailer of this en- 230 In itE ESTATE OF SEAMAN. qniry, in n certain setno a Court of construction and mtist looking at tlio circnnistances wliicli surrounded the testntor at the execution of lii.s will, if necessary to do so, cornimro with his lan-nago in those sections every document oinTod in evidence claiming to bo the extrinsic " hook " or " \vv\\\n^ under the hand of the testator " referred to therein; and. jJi ordoi to this, the intrinsic evidence ot such document must bo carefully considercid so far, and so far only, as may be necessary to decide ■' lohether it is identical with the documeht to which the will re/era:' I will not enquire particulailv whether, where as here, more than one ducumont is presented in evidence which may possibly be the extrinsic docuinc-rit referred to, the Court can decide between them. Tin; language of Lord Kingsdown in Mien v. Maddock, \\ Mooro's P. C. C. 454. ^-eterring, as it doe>-, to a decision of hy that lunv! want my property divided." Rufus adds, " My father re- ferred to that book sent me by Vernon, and said, ' Yor will see m the adding up that your share is nt equal to the rest: but when this place (the homestead) is added to it it will make it more than equal.' " Vernon, when ho carried the red book to Rufus, was told by the testator to take it, dow., to the boys and tell them " It is to he the final division «/ my estate as the hook loill show them:' The red book is identified by Vernon. Thus, thougti it seems the testator told Mc- Farlane long before this that he had made the red book void, yet the testator, so far from destroying the red book, sent i! thus formally a few weeks before I'lis death to his son, (who is now one of his executors;, as and for the book thaf was to Bhow how the testator's property was to bo disposed of. As such, that son and executor, who retained it,' produced it 'ate advances as SnCIIAELMAS VACATIOM, ms. 533 aficr I,i.. IMoV. ,Ieatl,. In ,l,o in.orval .,„,woe„ the ,1,.,.|.. »''"!" •'" " .tl- rcl bo„k,„,„l M„.,last rau.lo .0 llofVla no r.g..r,l,„B I,,,, ,,,..„K„i, „f „,„ M„c.k bo„k, wo have no ev" black b„<,k bens found in .l,„ ,n,„k can bavo any ,v„i,' ." nn«,nga ,n-o»„n,p,i„n in it, n.vor, ,l,at pro.snmp.i'nn „.„T,ld ..mUbe Uct „f ,ts o-ox.stcnco (unca„cdlo , ...d ,t ,, hea.led n, aocordanc, with the l,5lh .eetion « fo;,!, ;>rc-<.:r«fcrf ,«. McFarlanc say, that he prepared it "' ■ .» year .882 and that, afle,- tUe cJution ofJJ^ L . t or dehvorcd to him, signed by the testator, to bo lai. "17 :"'"'■ ".'"' "'" ^^"'' "'■'! ^-"^ "■"' M:ck book are c d, also •■ a wnt.ng s.gned by the testator." ^e. 13 allot, ....d fi.xe, valnatn.ns; »o doe, also each of the books, liein-- gne- alter the execution of the will. N'o. 13. like the black ^ook, , of course, founded on the reserve,! prospective power I wonid ,ee,„ to f, w that if used accordh.g t law orb- , ! 1, tl' T'" t "t;"'"';"''' ""' " ^"'-'l"""' -"f>"e Hdop'Jed I '?;"■■ , '"" ''" ""•' "''"'" »■"'"'"■• '" i"eo:,te,trble. We cannot, therefore, believe that he relied on No. 13, at the .me of h,s death. That document ia silent o„ the Hnbjec. » advance, ; but the testator ha, made an indication bv him Ih rT' "1 '"""""■"' •■""' ""'i«P»"-'l'lo part of hi/ plan m odied ,„ the two section,. The provisions of sect.e! 16 iiin.oLi..].^n.i.. r..:} ,•/• ii « - . Ihe converse does not follow, for 14 can stand without 15. VR^^- 234 In ue estate OP SEAMAM. A construction of tlicse sections involves u necessity for con Bidering tlio ellect of ti.e deeds in evidence. TImt qnestiuii presents a .loul.le aspect ; first, as regards the deeds in the abstract; secondly, as regards them in connecti,.o with the intende.J disposition of the estates as referred to in the sec tions. Under the first the question sin)plv is, '< Were the deeds completely execnlu.l?" There are thVee in one das. SIX in the other. The latter have all monicd consi,lerati..ii ■ expressed, the former are stated to be for love and afftdloa Ihey bear date, the six on the Utii January, 18G4, the tiire,. on the 25th March, lS.5i. The only evidence respecting th.-' oxecut.on of the latter is given by McFarlane, who^avs " Jhese were handed mo by the deceased some three or [\m years ago. He said 1 was to retain the deeds as escrows ami deliver them to the parties or those who n.ight represent them after his death, should he not deliver them before ■ He adds, "They are in the handwriting of William, decease.r who IS a witness thereto. They have never been .tctualh' delivered to or accepted by the grantees, but I have registered them since testator s death." The deeds in t!io second class, being dated subsequently t( the execution ul the will, and being to children and grand.;hil.lren of the to- tator, were prepared by McFarlane in the year 18G3 or 18G4 from a paper written by the testator. Alter they had been executed in the pnssenco of one Charman-a subscribing wit- ness thereto- under circumstances to be stated— the v were retained by the testator. After his death they were receive-l by McFarlane, at the hands of Emma Seaman, the testator luvv.ng, a sl.ort time before his death, addressed to McFarlanr these words -Those deeds yon wrote of the new diked marsh you will get from Emma Seaman ; those I wish you to tak" for delivery to the parties when I am gone." Chariniu savs, "I was called on by the testator to witness some deeds be- tween December, 1863, and January, 18G4. Mr. Seaman, at his house, said he had some deeds to witness, lie, the testa- tor, signed them one after another, and desired mo to set down my name as a witness, whic, V did. He said, ' Perhaps you may be called on some time to pr> re these deeds, and perhaps not. He retained the deeds, and I came away." McFarlane civea this ^nr^b^r i^'>-*>! • •• „ oa ims .»rvLvr ic=iiniuii^v uoiiuurning mem. " fcjome short MIC1JAKLM48 VACATION. 1805. 235 e.oro,v» t„ .«ko „,r„o, „r„r hi, ,k..",T,' . , ■■:•' T".'" livoreJ ll,o,„ l,„(„,.„ ,„ H,„ ■„,, c ' ' ' ' ,"'"" ''"• ' ". . '--- u, ,„„ ,,., ,:;,::::„„ vr -;•- '-■■ respectin^Mlioso deeds. ^ '^ testator Tlio deeds „f 18G4a.c materially disti,nM,isl,e.l -m fn H ' Bnuitoo thus inv,,ste.l with u title, with.,„t h.C. ..,f 1 .•^^"' e''*"tor. iiio grantor raavoemnletelv exr^ cute a dee(J, }ui( ( o|,v«r i> frw. fi • i '"H'^'uiy txe- not to iMud ,t to the grantee until after the grantor's death In one of the cases stated below it will h« J H.af p 1 • 1 T "i-iuvv, ic Will be seen, however lut Coleridge J. expressed himself doubtful if tl.« T 7? 1 escrow. />oe rf. Garnons v. ^a'' will ; and this on the broad ground that a will cannot in- corporate an extrinsic paper not in existence at the execution of the mil If, at the time of the execution of the codicil, the w.ll had not effectuaMy incorporate,! an extrinsic document, the execution of the former could not have that effect from Its mere operation. It would set up the will, of which it pro- fessed to be a codicil, and also previous codicils executed, or perhaps, «,nco the Statute, unexecuted, from the force of tlu- term '. codicil," and by virtue of express decisions. But ii could not incorporate any papor which the will had not incor. porated, without express reference the -eto in the codicil. T iiiiva fi\t\t\i\ n >.»<.: ..e I. 1 ... '•" " ""^'^^ "f ""6 one case which could, at all. MICHAELMAS VACATfOX. IHW. 237 Executors, (p. 15)5.) I c,r, .iff... J '\""^"^ /^^//^///^* on wl.iol. wo have:: I I: :^"t •'"'"'•'"' '' ''" "'""'^ *" th^ paper (n<,t incrpomt,,.!. W) uKn-imn, 'o JuT; ' nil 7 . V lii. t^.i, 7,M IIS- .. 4 f '"^ '^"^^' '" J^'loUv, frailer 7 v;(.>*. U.S. -A roforon.o to tl.o will pn,v.H ., Iv tl, tt Vl n ^ visor r.c.>....... tho oxistoucoof ti.o will, wl ll L^'"/^" ,:,'ivo ii any n.iu operation orfn f. " ""'"'" *» Ac /mr/ a^mtf'y c/o//e />y cxmduuj it " ^ ^ '^'"'* •UnJortli.. lato Wills \,,t it U sfill n -i , ' '^'•' * 'n.o.ci.i,.xoenn., wii, ;;: n':;'^:i'''''r'^^^^^^^^ An.l a..ai,. I.o say.s, h, tho same ...so • ' '?f til "'° ':"''^- -HI o,- no,licll .lnlyoxooate,l.nyiU,. j ,^V"^ "' '" '' ^oill or other pap.r, tl.o inst..^^ ^ ^: i;^?'''^^^ P--; of the will. Bnt tl.o reference must bf l" Lt """' oxclu.lo tho pn.sil.ilitv of misf.lc,. ; , "° •"•'^^'"ct. soas to nu.U>ealrea<1ywritt;J ' "'^' '''° P^'por n/e..erf to Tlli.S prilicipio is .-OOJirMljjorl hv ^\r Pnml. * r . '" '""r- "I"'™ " '^-o'l'.v. M km™ ! : '. -If' «.»M, as (ar a. thoy l,«vo gone, h»vo raise,! doni, . ' " M.ap„r„„.cco,l„„My e.is,i„,;„„e cl„ ^ ^^^^ '" 238 In he ESTATK OF SEAMAN. piipormw/c a/tcnmrds cuuM never he purl of tho will ; f..r tho ehroo witi.uHs..^ required hy tlio Stiiluto aro witnessos t.. the siiiiity of tho tostaror, uikI to all tl.ut is nooossury t(. vuw Btitiito a goo.l will. Tluj oon^oqutMico i« tliut tlio snl)Ht.qii,.„t pnper Iiuh not tlio curoinoiiioa iiuceasary to coustituto a (\<>. visu of laii(i." Tlio rouHoria, coiiclusivo in tlio piirticular case, would not, of coiMNo, apply to tlio caso of a dufootivoly exocutod will. renji-riiiir to an extraneous docnment as .lesi^Miod to ho inn.r- porated, U \w^ lol|,,wod hy a codicil rcfcrriwj io that docnment, and itself lej^'ally exocutod. Such roforonco would incoipn. rate the document in tho codicil. In my view of tho law and of tho cvidonco tho execution of the codicil in Septemher, 1SG4, has no practical opemtion ill this case. It must ho l)orno in mind that tho reference in section 1 1 is, not to a hook, hut to '' entries made, or to h, made in a hook." It \vill ho perceived, already, as a consoquonce of tlic opinion I entertain of tho law governiiifr the facts, that tho black hook must ho rejecled in toto, and tho red L..(,k held to 1)0 incorporated, hut not as regards any entries made therein after the execution of the will. Tho red book, proved to have existed at the execution of the will, contains entries shown, j>er se, to ho made, some before, others since, 8th M.irch, 1HG2. All tho entries in the black book aro proved to have been made after that time. Both classes accord with tho description of entries referred to in the will. 'I'hoso that at the execution of the will existed wore, and are. a part of the will ; and, as such, needed, and could derive, no aid from tho execution of the codicil. The entries made (and they include all those in tho black book) after the exe- cution of tho will were, at the moment of tho execution ol the codii;il, void. That act republished tho will, and made it repeat the voice that it nttered at the day of its execution It could do no more. What it had then uttered was the language of section 14 (it is sufficient now to refer to that alone), as made completely intelligible by tho entries in the book referred to as then made, and which were then— 8tli March, 18G2— in the book, as proved by the book itself. The exccntion of tho codicil (that codicil' containing no oxpi^'si of tlio will ; f.-r •0 WitDOSSUS (.. cessiiry to coir tllO snllHCqiKMlf OIlHtitutu H (If. xse, would Hot, exociitud will. mI to 1)0 incor- ) that document, MICHAELMAS VACATION. 1865. n-;^«ronco fo nny ontrie«) couM r.ot hy impUcUion male that (ImI not exist at tlio timo wi.on tlio will l>i)-ua-o of Ho.;tiorj 14 hIiowh timt tlio 230 tlio liriHcIf a power to malco tli( o voice of oiitrio8 fii-Ht Hfx.ko Tlio testator reserved to H'H-tiori Hponk by entrioH to be z!:^r' ^'vri'"'' '^ ^'^ ^^'^^ -'^ -^ ^'^ -^eZ that the law did not iiorniit. Tl but I'.v implication from tl '« moment an attempt is mad CDlllCI '0 mere elleet of tlio exuent , not expressly referring; to it. to 8ot ion o( a will those republisliod on( not in existence at the execution of the wil|'7l iiidispensahio nocessify to have recounso t uncertain w/iut (Mitries tho testator at tl "p as purt of the '"'''?.'" '!. ':""'^'' ♦'"'•" 'existing, but > there arises an '■'it'o'i of the L'iuhcU, intended to I o parol testimony to '0 timo of tho exo- rt'publishod Avill. T| Statnto of Wills. Tf_ in Sheldon v. She'don, I !{(.! IIS eaniiot be doi '0 incorporate.! in his thu« lo consistently with tl orporation does not depend on parol lese aro the words of Or. f^usl .ert. 88: "Tho validity of tl 10 iiiiL'-ton, )"p:er permitted), but tho ovidonco (which is le in- tected by exactly tl paper to bo incornoratcd no i.'iHtrument by which tl 10 same evidence ifl pro- as .•ond':ri va|ia tho tlie 10 incorporation s "{I'ecti ' iies8os Higuature of the testator, and the sub namel V "i-s were protected, in this cnr; '<<-'-ii';{ons< ttwo wit- t!io red book will. Tho t(!stat()r and tl pi'ition, subscribed tlieso cut will, of which they w oxiHting at tho timo of tho execut jio entries in 'on of the e illnesses both, in legal cent nes, because they subscribed tl em- its if written in the will. 8o tho t eio as much a part in the eye of tho I Sdhsc o.stator and witnc.'^se.s wl 10 aw r.bo a coduMl, m legal contemplation, then sub.sc lO previous codicils and tho will ; the whole, in th '.i^v. constituting one then subscribed instrument 'lit try the application of this to tl ribo all o view (,f tho •il iu relation to the entries 10 execution (,[' i| lis co- li"-o is glaring. The testator and tl "I'scribed this e.Hlicil in September, 1864 11 the black book, and it 10 two witne sses loin j)lation could be held to havo •-■odicil, and tho will with tl •^t it8 original execution, and then H'ho «'» legal contem- ^ubscribod notliin- bnt tho >o entries co-existii.g with the will lI}Pf)t*y\^>»^^ g no oxpresb I l^'ack book rest j-Or'-itn'j cVKicnco, lei a part of it. On wl ono minute be/ore tho "10 ask, did tho ent int. rie; in the e.^ocution of tho codi 240 Lv RE ESTATE OF SEAMAN". oil? Not on tho execution of tlio previous will, for the rci- sona state.'!. Not on the subscriptions ot testiitor and twd witnesses to tlie entries, for those had no such subscription in fact. On what incorporatinij evi- tho execution of the codicil? Kxchido McFar- lane's evidence of the declarations — parol testimony — xxwA there la no [iretence for imph'ed incorporation. Suppose tli. testator had himself declared to the two witnesses, whii.-,t producing tho black book and patting his linger on the en- tries, that ho had made them nftcr the execution of Ida wVl, and intended them to speak as and lor the entries referred Id in section It, and thereupon ho and the witnesses had snli- scribed a codicil s'llctd about those entries? This is plain!)- substituting parol testimony to prove a will for the refiuiri; ments of the Statute. When we refer^ however, to the evi- deuce of McFarlane respecting the black book, to the bodk itself, and tu tho codicil as executed, the testimony does not diir.jr in kind or in degree from that which I have supposed, The two books were, on unobjectional)le evideneo, proved tu have existed at tho time of tho execution of the codicil. lie. ferring to their cnlries, made subsequently to the execution of tho will, tho inero internal evidence for tho one is u strong as for the other. iJy what nieiais is the scale attemp- ted to be turned? Hy tho testimony of witnesses orallv do- livered, in connection with one of two rival books unincorpo- rated, and by means of that alone ! My opinion is that a man's estate cannot thus be disposed of after his death ! To talk about republication by tho codicil of tho black book which er concesso hxd never been publiahed wuuld be a contradiction iti terms. Tho question can only bo. '' Was the black book incorporated in the codicil of 18G4?" After writing what I have just read, I found, with great satisfaction, the following express confirmation, by the highest authority, of the opinion entertained by mo, that " siwcc ///c Wills Act an attested paper, even a codicil, cannot incorporat' an unattested paper without expressly referring to it." Dr. Lushington. in Croker v. The Marquis of Hertford, 4 Moore'o I*. C. C. 365, says: "Before f'le passing of tho re- cent Statute, it was common to roDubligli a will or a cofjirj! for the purpose of renderiii;: them operative from the date from the Jato MICHAELMAS VACATIO!?, IRCJ. ^^^ -r pnl.licati,,,,, l,„c„„sn, „,i,<.rwi,e, I.„,l. „e,i„i,e.l sul.sc ■l"-t>. w„„|,l „„t ,,„,,. Or,li„„rily, tlHTo l,a, l,„„, . -. -l-.l, 1.0 t.™ it,oin„,p„r„: („,t ,1„,™ „r, ; ,1: >|-.i ..o..t e,„„„lor," 1,0 co„ti„„„., -. „,,„„ „,,„j ' l^,,; ;[^ ;l...t me„rp,„a:i„„ l,y rofurcc. has t„,„l ,„,<], ;' .l...t law |,i-,nicio(l for I lo authcM.ticitv ,.r .,„.r. • A..y u,.,,,„pt ,„ .leviso ia,.,ls will o ,. ; ''' ' m'","""'" .man could nut, l,y hi. will, ,e.so,-vo to him.olf til , .i«vi.i,.,, Ian,. hya„ „„„„o„„,, codk-il-f,: 'i/:,^"""'- fi :arry with it Ics proof of anthentic-itv hit 1 ''*' .oa testator ,0 rinder oporati:: lll^ p:!' n.'rr;;-' .c.t..d, a wr„tc.„ papor alrcas we may lament it; but wo ^it hero, not to try what the testator may have intended but t, ascertain, on legal principles, what testamentary instrumont. he lias made ; and wo must not be induced, by any consider-, tion of intention or hardship, to relax the provisions of'n Statute (perhaps the most important of modern times) for the disposition of property." In the case of In the Goods of Smith, deceased, 2 Curt 79G where the words relied on to incorporate were. " I make and publish this a second codicil to my last will and teatamei)f it was held that a previous codicil, signed by deceased, not attested, was incorporated. Sir H. Jenner says : " The latter codicil being duly executed, and re/erring to the former k an execution of the former codicil also." ' IJn btin^ cannc ro/bre settlci 'or, in lov ca [)Ovvcr t'Xecui licienc paper (or its ivere i\ an exti 'iie efii pose o execute tioU, CO >ec. 15 t!ie alte tlie prill liook, an tho 8th iiiust be I am time of t lion 14. a made by perty, ain :igainst, namod." lilted in 'ilea exec m that bo itre ao re 'testator hi •i declar (cith the ^isees, whi ^'uui their MICHAELMAS VACATION. 18C5. IJnJer tl.o present Shitnte of Wills if i. „ r , , ;inff incornr.n.t; .rn, , "^ 'Hs it IS a fixed I itiiig incorpcjnitioti, "That •annot iucorporat an attested tostamonta 243 ■egu- rofo renco to it." l s]ni\l « an lumttestod paper witi settled, and conclude, in the I, 'or, in Johnson v. y?a/;, 5 DoG tor cannot, Ly his will therefo rt '■y pfiper >t>nt exprosii . I't-'gard the point a» '"',«";'«« «f '!'» Vice.CI,a„c„l. •V: Smillo, 91, ■' Tiiat a testa- poiver (0 dispose of 1, ' P'-"^poc;tivdy oroato for l,i,„solf |«ipci- not referred to in It of , , •* "" "'"■•"nocus. - i'- -pp..rt. I. ;'•„ f ":,::i,t"-"^ ""; p-ncpio «ero found tl,„,, ,.i ,|,e ONec, ti n ,.' '" '"'""■•k "»' if it ... e.Nt,aneo,„ i,.«tr„,„o°tT "","""' "'"" '"'' "^^i"' *■ ^-r^ot of „i,ioi,, <: „ ,.::;^" f ■-,;po™'--, «nd l»e of !l,o t„,e.-,t.,r>. estate C, "'"' ""^ '" <'i»- «ec„ted, could uo. bo ll^u[2f:i\'T"""'"'' '"" <>«'>' li«u, oo„si»lo„tlv ,vi,h tlol'!-/'''"^"' '''•-' '"'■"l^"'- «. 15 and 16): becle ,t Z 7"" "^ "'" **'"'■' ^ct f^oe l!.e al,e,«io„, tt ,«! ut ,J^ f '""""'"' '° "'« «"=" of .i.o pnuoiple^'abovo Z' d '::l7r t °' "'" "'"• « I'oolc, and all entries „,„do 7„ Zl' T' . ^' *''" ''''"^ >k« 8.1, Marol,, 1802, le. t r.r; . ''''"''"'"'"^"">- '» »;' -0 dis„,issed f„.„ o 'r:o!!:;:::';r ^^""'"" '"'^ -"- .«l'™ir::irortt':..^;''™:j"'''^->-*^^ "»" H.as being, i„ tl,„ ,,„;:^ Jf , .riT™'"" ''•'"• -O" , '"ade by the testator, of "advfnoel of , "' ""^""^ »'""' Frty,»n,l s„„s and c Largos as "I '''' "^ P"""""' P™" '^i"«t, certain of Ids d, IdrL t ™''''', '°' "'' "''''^S''d -J." I an. also of opi. -"Xt" b^":: '^'f •"■'^^■■" mod in Boction 15, so far as .!,„. !• "" '""orpo- ■i.ea oxeeutod by tie te» tor „ , "", 'P""'"' "^ •''"Jd- I <" 'Im. book. I am of op^o : TfT" ."'"'"'^ ■■'"■«^™'' 'o « » referred to, anr,,u , 1 '^ "'"'"''>-'» of 1854 -tor bad devised tbe'erstVetodrof t -f '"« •J declared in the will as ho fmc ^ i /■ ° ^''^ and «i"' «bo will in o„„ L w;,';r d'" ,''"'<''•''' '-«' .-s, ,vl,o arc the grante.^ slln^d "l"!!uf !!.''!' "'«' "- <<«. -tnoir several sbares of tl.o -ost.to°7Ii: ::: ta^d 244 T>f RE ESTATK OF SEAMAN. in the hook in respect of the estates professed to 1 ,,^. by the douda. The tcst.itor in the book, under date of'lh >e convcvc'. very date of these decMls, hu s expressly duchirod "//iaf /,<. and the deeds are found at \m duatli. course. 1 then deeded the lands, T have si.okon of these papers as deeds, but, of "lavo not supposed that they eoidd operate as cotntnon I conveyances. They eonhl not do so in point of 1 wouhl bo inconsistent, as my view of theii un- law, and i( operation Hun- poses, with the intention of the grantor ( viewed as //m /es tator) so to re-ard them. I view them as written papers Kigned by the testator, referred to in his will as '• (U'cl . executed,-' whieh ir. form tiiey are, and in entries existinfjai the execution of the will, referrinj,^ to them, and found in ;, book— o.w.l ( , '^.^ . • !» I ' • -" ' — - 'J '""-' ii-icicntx- itnmaieriiU) slioiv % Mv to be corivovc'ii ndor (lato <»{ the eclarod "//<«/ /,c uiid at liirt (loatli. Jilt, of Course^ J as common law it of law, and it r operation siiji- owoa] a^ (his te.s written papers. will as '• (li«oiI: tries existiiij^ai ami found in a I consider tlmt ho sectionH ajui li the oxecntidii il them — coiLsfi- Jiderent estHtc^ teatator has, in arties nam.'d in om his ahare ot ;hat 8u»n wliici; refererico to the 10 estate named 8 if he had ex )d to show tin- ivill : " 1 devine scribed, and on orm a deed be- tat en tho con- respocti ,7 the i portion *" rny but no unoro u will of tho o.\ d to. OS. Seaman, I)i. itttures subscri jrrod first, ton that of Miucli, material) shov. MICHAELMAS VACATION. 1865. 245 ;■',;"■';- to ..,.,.,-. w„.„ .hr;::,.xr„, ;;::," clearly those are they. The dafo in , i ' '' ' '^"^ i»«:^ which i» im.odiL,i> po'tVo r; ;:'''••'''' ''■ ,irt, .1 , ''l>P"rt,or.n.out „f tho MionJio o«t,.l„ or ts .h„,,o, cHcopt „s regard, tho dood. ,ha.v„ hrt'ha to hHVo hoen ;.„„•„„,, „,oo,„o,, ,•„ f,„,,„.,.„,„„ , ,■ ^ My ro,.™,„ for f„rmi„« ,h,.t opi,„-„„ »ro tl.o.,,, -The book ».™k other e„,ri„,, o„,„„h,. „„o it. li.eso erm, _..Tht' ^ .» kop, by ,„„, ,.„d t,,o entries and ch„r«„n,erei Jbv "le made are h acconlance ivitl, (l.„ „i • ""'""" "^ Tho testator tbn, deoh.ros t!,at on that T"^!f'T", ;;-.uod hi. „,„ ,„t a„ tho Jntif'irfjiw';^: z:: r :::o ":,°:;,r "T"-' "': "--"-'» ..-'to .fof I . ^""^ portions thereof, are oxDre^^lv '"_«,1 mnst all, thoroforo, Hhare the fal- of th„ hl.„l, u..,. ^ 246 In KB ESTATE OF SEAMAN. T turn back, then, to tlio procodin- pagos of tl.o rod l,ool- 800 whothcr ti.oy contain entricM of an apportionmont m.-le by tho lostator, at, or previous to, tho oxocntion of tlio will It such bo found they must bo ro-ardod a. incorpor,it,.| therein. I find ontrios, indeed, ovi.lontly made in order to apportionment. Thoy are inserted between tho dates ol boptr. 27th, 18-1 1, and January 24, 1846:-but they, in mv opni:,)n, aro not incorporated, becauso thoy aro manifustiv incomplete and 'defective. Whilst thoy profess to apportion and do appon. u to some of tho descendants named, in an unquabhed n...nner; they aro so uncertainlv and va-„..|' expressed as regar.:.i others, that it cannot bo' said, in r.Mr enco to those, what tho testator intended to givo them. F ,• instance, whilst Ann's portion is thus described, "An. -, have that part of tho Ma.-ar-farn. where tho Donc^isters r • live to tho Lake Road, at same value, for the rnar^ih, 30 acr ■£15, an per acre,"— tho apportionment to !; ifua fUHJ William is i- follow.: "Rufus and William to have tho upland :-iso f.ai.i the old Chapel to Clarke's Point, wi(! the pa.turo marsh t. the notin of the road opposite, at same rate— uplan! j£'0 .md marsh X15 per acre, to be e»i.ially divided as thev may a- re. but if Bu/us stick, hj nm, and b- haves loell, it' is ny desire for him to have that pmi wlih the buildim. I now ocoip,,, and miham to take from jJt,'Mon.s line to the point, vaiu. hoth X04;. If liufus rakes the homestead, he oiwht to allow Wi'liam HOMETmm/or building extra - Again, in' tho apportioa; :ent tor Mary and Jane, ho writes: "They should have «o we .xri of tho httle ri.ctrsh in front, to accommodate each," - adverting to thia vagueness, and incompletness in some oft!.' apportionments, I consider it quite impossible to consider t!.u general entries last referred to incorporated in the 15th section. Another objection to so regarding them arises from the fa-t that at an interval of eight years from the date at the en.l of tho last mentioned entries, tho testator disturbed the pre vious arrangement by entries made showing the subsequent conveyances to Rufus, Gilbert, and James, and by certain entries under the date which accords with that of those con- veyanooa, showinc a variance from Mm «n««:„..„ ..-„ ment,for instance, "^Ae Bbnkhorn lot may go to Jane and to Jane and MICriAEI,MAS VACATION, im. 247 M,." 1 f„,.buH,- rcmrking <„, 11,^. f„f„re„co of cl,a,.L.o.l «l,cl, appour, ,„ tl,o book t. bo o„,„,.Ja „_^>,.,7;. ' ™ „^^„ .///«««, lc.ob„«su.o .b,.t I ,.,„ bo,„„l to »bntl™ il... la» as muol, a, I ,.,„ ,„ ,b„ „|,„lo contents of ,l,„^b,lk «oK, My v,cw. of tl,i. oaso procludo tl,o po.sibil "„ "t ::::;:2^^!;; ■^-i-, i..-.nc„ .. . eo„.. •. t.. b,/o."L':i: TI,o C„,„-t H ,,,., ,„,,„i,„,| j„ ^,,,,^j_.^^^ J t-ir . - 1 Jioiiju hero roail lliis aoctiorj.) ' TI.8 t. f.tor i„ 8octio„ 13,«poHki„g of tho rov.rsion of i ' " *"*^' '"i the laniriiafo i>4 f iwf ' .«./ ^op,,„ ..,.te, ,„„, „,„ ^.^ &J''Z:!2 "01. .. quostloM. Ihoy throw no light oil tho |,oint of in ,«:r.v, b,,.au,„ thoro i. a roforoaoo inli^o,,. t„ ^Sl^Z « npt,ou auJ tho mi ,f tb„ „„,..„,. ,., ^r^,,":^ ,,^^2 10 tho considuralioii of tta( ".oat,..! uatk r'Josg,,. .hore," „f which, iu.iisputably, hr,„r to Z'o 'al...'Wo portion, i„ g„„or„| lopiito, and aocor ii.rt . «..o.»o., i, not ineliidod in, h,i! iio^ iar o „TZ p^^^^^^^^^ i^d l..n.., should bo coii,idorod a, i„„|„d„d vi i,r 1 S:!:'."""' "' eoii.triic,io„,ovorrido tho Ju.l eoatoxt, and .ho oWd i, ^J t , 'ir^t" r [ "" "■"''"' "'" »f 'l.» testator „ho„ l.o mtlo ; ; "It .b il'T"'^"''^ prossion is that „11 .b^so considorat.oii, !.:'!:'' Ji,/''Z '"- »-Js. 11,0 ,„,t„t„, „„„|j ,„^,^ j^ ^^^^ . ^^_^^_ j^^ g ^,^^ J 248 Vw KE ESTATE OF SEAMAN'. tioM witl,„,u tl o Ik r " o'f"'--'""*"'" 1"-^ mi™ if .0, ho co^l, , ""."' "■':"" '"= "'■•••»-•■'■»'«' limits,,.,,; m.... noc.::: ; 1 ri:;':::^;' "•;;, 'vi.0.0 ,„ ,«.e; „.: Pnncip,,!, „„,, „,„ ,„„,( val„ .1,1' ■„ r , , ^ . """'"'" ""■ My worked q,mr,-io. 1 : , """"■'" ""'-" i""'"- without .losil ;," 1 T' "■''^■'"'''"' !•"»•'>■• f-vo "esa in prcDan,,,. i, ** "" 'lol,l,o,ut,„„ „„,, „„,^.|. , «eno,.,u ^;,r; ' r ;;r,H,r':„„Tr "™ '"■^■^"""-" ■■>• * «.r more lim^te.l e^ m ' ''""'f """'' l"""'*>ric.. „f „ land and w^trr ,. tlu '! '"l"'"'"-"'- '•'>'•"••'■ ''"" "f 'I" hold tl,i„r ''■ """ '"'""'■"'■ '" '"■™ "-^ "" l-^e. Woc.n g„t.I,.,- nothing conclnsivo i„ f„vo,- „f ,i,„ , im™odi,.to\,ivi.i:,;:r:t:''j :;. °t;:;:,^:::"^"''- '''' profit,W,lo workinir, of H,n • , '"J"noiis to ll,„ t>.at he shonhl ^M ZTl ^'V' "' " """< have i„fl„e„oed ,,i,„, „,r dito'ni' i"f' i:: ":,r°"', ™; of tt leaso that Dorfmn ,.f *i , " *^''" sul.|ect umt portion of thotn alone which Iih 1.... a / . VVe must boar in minr? *»,..* i i , , '"^■■* ^'i^^J"C(l. in .ho manage™::':"'?,, v.!-: iif ;-::i "'■'" "^^ opinion (not atJoarontlr ;., ,.„ ^ ' '"''' "'"' '""' oxp,-ea8ed an it wonh uotZTL" '"'™'-*"""' »"l' """ "f othora) .1,,., Quarries,-: p„;,:: 'XT """'r' "•"'■^ ""^ "'^»"^- «-a,,ini.iaopLi,:rL5fJ'!if;:"''""' '"-'• C"t.er a.,. f —J, .... „.„. v%.i«aMe jart o/ Me whoU. Those MICHAELMAS VACATIOX. m,. g^^ ;l'0 plan slunvs to lio outsi.Io tho limiN T. • • ••vouIoe,. ..flection .uXr: 17 """ ' " ■""^' "'"I'toJ. TI,o toHfitor .T-'""-'"'""' '•"'•'n> tho u-or.|s >voro »"ii«"o„s I „ " ;^ ,"'" '"-""r" *p"' - iM. ,1, „ lil p.-eci,i„„. Tl,„ w™ r, ""T "™ ''""•"' "'■"' -'- %"."ivo.,,, ,•„ ,.:,r:' .!*::'<;■■. :''™-h- i-o,(„„t ''■-•o " on ,l,„ o„„ ,„ r, f ■ L 1*'* ''""-■"■" '■ ""K "■^l. «»'-».«o-v„„ „,.;, ;, vo'' : ■ ;:" " 7. ""^ ""■-■■ '"■« In cunsidonu.- t|,,, ,.„l,.. <"t»n,iL.,l,..(o s|mcu. '■':;--:- - f .Si.- i;.n w',::, ''%?;r"° '-r ^•"•"• 'l»»co ,0 explain w U . ' '""^»''"'"y "f oxtrinsio evi- I"""w,.- .. Wi,,,^ , ,,„ '" '"''V'"- "'^ Pn.positio,, II. i, „, "tri.t u,Hl primary J^Tl " "■ '"'^' ""'" """ ""-•''■ "■«».xil.Iu rnle of c^ „c io , T.'T "™''""""--. ''t i« u„ l» i".orpr„.„d in C r t :. , " "'""'' °' "" "■'" ""»" "'I'". ul.l,„„gl, thev 1, h! P "miy sonso, and in no ««co,„larv- inttoreta In^^ ^<- ""pablo of aomo popular or ««.e 4» /-..rf„.w „ "" "'"" '» """A popular or second,,.,. 250 In he estate OF SEAMAN. Now, tl.o words ill qiKMtlori, doscnptivo of tho limits .1, . visod III section U, considered with roC^ronr:.. to tho oxtriiisic c.rcumsrunco8, viz., tho sif nation of tho tostutor rchitivelv tu tho "Joggins," or "Jog^rin qn.irrios," viowod as a wh.,1. arc .iiKh nial.ly scrmbk, and cr.Mto, ;>cr «c, no diiliculty of i„. terp.etation. Tho words aro not capable of any diffenMit Henso from that which thoy primarily convoy; and thoro ,\ absolntcly n.. evidence (nothing; bnt a mrro coiijecturo) .,i an intention to convey another and a (lillorent ineanii, which wouhl require tho substitution of other w(,rds. Sir James Wi-ram thui expresses, at the end of hiY trea- tise, his conclusions from . ,,g review of the autho- rities. IIo says: " Tiu ooir i.Uions, then, which tho pre- ce.ling pa^^js appear fo authorize, are those: 1. That evidni •.. of material facta is i.i all cases admissible in aid of tho exp.,. sition of a will. 2. That the lefri.imate purposes to which- m succession— M\^:\\ evi.lonoo is appli-,! ' two, namely first, to determino whether the word« of the will, with reh-i enco to the facts, admit of being construed in their primarv sense ; and i^'-condly, if the facts of the case exclude tlu- primary ine.r. ng ,.f the words, to determine whether tho in- tention of tlu testator is certain in any other sense of wimi, the word:, with reference to the facts, aro capable. And, .i. Ihat intention cannot be averred in support of a will, except in the special cases which aro stated under the Seventi. Proposition." lleferrin- to that proposition, wo find those cases thus d- fined : " Where tho .,bjert of a testator's bountv, or the sub- ject of disposition, i..' describod in terms which are appli(;a!>|,, indifTerently to more than one person or thing, ovidonco is admissible to prove which of the persons or things so do- scribed was intended by the testator" Sir Jamos conclude- his doducnons in these v.ords: " Tlie wiiter of this Examination, the;,, whilst , admits, and insists upon the rule ' that the ju Igmeut of a uirt in expounding a will should be simply declaratory of what is in the instiu- meny hopes that he may, f;, jl.js phice, without fci of cor- rection, add that, consistently with that rule, < Evory claimant under a will has »i r'urUt ^•^ fuz-.ni'i.^ tis-* » ^^ -^ -'• . * . I.. MICHAELMAS VACATION. 18C5. 261 tin., in tho oxorution of its offico shall, l,y moans of extrinsic ovicJcnco, ,,|,ieo itHolf in tl.., sit..utioii of tho testator, th.- moaning of whoso lun^Mia-o it is eallod np„n to doclaro ''" Tho oxproHHion of tho result of tho anthoritios seomsto mo to go the longth of showing that tho clearost nos.il.Io inton- Jon, provod by oxt.-insio facts, on tho part of h testator to •lev.so tho whole extent of the .i.iarrios, co., not prevail Hj,'ainst tho plain and sonsihlo language ii.-<-,|. Jt dearly 1 tl.ii.k, sanctions the view I have expressed, of a noces-itv ("••construction of tliu section in qui-stion according to tho pnmary m<'a.iing „f the words of tho testator. As re^'urds tho codicil of 22..d Octoho.-, 1802, an\hothor those have, or have not, a support in law or equity seems to mo to be besi.lc tho question. Tho attempt tJ assort Ihom comp.ilsorily, by either of the parties named, is made by the testator to involve a forfeituro of tho intended devise or bt. -lest in favor of that party. The Court i' asked to declare "whether Rufus .Seaman 18 trustee aa rt .ecta tho land devised for school purposes?" % the codicil f 13tli September, 1864, tho testator ap- pointed his sai. sou in terms " to be executor of his will n connection ^vith h: ^on-in-Iaw, Mr. McFarlane, with the same power and authori., as if his name had originally been Hiserte.l therein." These words aro satisfied by holding tho.n to constitute Rufus Seaman co-executor in the strict sense of the won! '^executor:" as contradistinguished from the office of " trustee." Adverting to tho 10th section of the will which refers to the school purposes, we find McFar- «S": thereby appoiutod a trustee in terms; and for tho pur poses of tho trust twenty acres of land are devised to him. u% COLUNS V. RETD and Otiikr». 11.0 .luvMo M, iiHleod, to l.ini, l.i.s l,o.r« ond a«H,V„«, b„t it j. raa.lo uovertl.oloH., under npociul c.rcurnsttt„ec.. of porHn.m! conn.lcnce u« re.pectK McPurhu.o. I tlm.k. for thone r«a«,„.s Ki.luH Soamun lm« no authority t.. uet u.nlor tl.o Hoction i,i quoHtion. Order accordingly. ^^^K ' COLLINS V. RKri) and Ot»kkh. May 11, 1806. o„n!".r'*'*'i "* '";''"' "" ""'«""" ""' ' "'« ^"'"''^•'"* O^^'""' Act. Ii«hl« for no, coJl..,inK ,1.. H...K,...., ,,.,„.. ,h.n, ,„u,. l.« ,li.,i„e, „r.H.f ... „..«lec, ; or of p.^iUv. lo.b.„ranc., nn hm p.rt towanU th« ,lebt„„. wUhout tho concurrence of .|„. ,;, »i«nor. .nd of consequent lo«i ; and «l,o thn the debu, aligned were of n-n. Tho claim of n„ as.fKnec of Ibo rq„ity of redemption in mort«»K,.d pw-mUoH for «nrplu. proceeds , inioK "Acr .h« «ilo of pn-nHncH on f.,rrcl.«.n«, ol ,ho •»ortK,K«. i, not barred by a twenty years' p«.s«H.ion of th« pn-miHca by th.. «,. 2"or. woo cluimod under the mnrlK^^or. the mortnaKee having by ,h. for.-d,. «uro «„.t a.*.,...d u pMmmount olui.u to the po.«,Mion. and th« premi^a bn,,. sold und^r that claim. * «^'?"'; '""'.»"*««•*•"•" "<■ 'ho ««.iBnor of an cqnl.y of rt-d.-rnption i» not nd Tenw to Uio umignee, unleM »liu hk will. This wiw an application on boliulf of tho defendant, Arclii- bald Groenshields (a jud-.nont creditor of the defendant. Adam Rcid, and assignee of the equity ot redemption in tho preniiHcs mortgaged to the plaintilf ), for Hurpl.n pn)ceeds re- ma.n.ng from the Halo of Reid'K property, alter payment i,. tnll of the amount duo on tho plaintilF's mortgage and tlio costs of tho forecloHuro ^.uit. Payment was resisted on the ground that Keid had assigned to GreeuHhields debts to a very large amount, out of which he might have paid him- 8oH the full amount of tho judgment, and on the ground ot adverse possession of the lands aud premises on the part (if Roid. The cause was twice argued; first, by Primrose for the de- fendant GreenshieJds, and S. H. Gray for the defendant Rei-.l: signs, but It is ien of pornorml ' tliOHe HMisdiiH, tlio Hcction iti • accordingly. A(!t« litihln fi,r tioi fleet ; or of |iu-iLivf ciirrpnce of iIh' n* ignt'd were ol tvu. >"«•'«"«••<• pr«»mi(i«H. /olToloHlirB of thp irctniMfs hy th(> h^ injj by ihn fon-clo- th« premises bcinK ■tnption La not nd ill. Miiliint, Arolii- lie (lutbiidiiiit. iption ill the I proceeds le- r payment in ?ago and tlic ssisted on tlie Is debts to H vo paid him- I the ground nisos on tho 96 for the de- ruidii.nt'. Hull] • MICHAELMAS VACATION, im. 253 *ndaguiM by the Soliellor (hncml for Crcon«biuI.I.^, tind 8, II. a my for Ucid. S.H. Gnt,, rifod the following autborifios :~2 ChxUuH Kqmtii Ih,jeHt, 1 21' I : Ex parte Mure, 2 (\,x'h CanrH, 63 ; 8 lU'avnnrlV^] WilUams v. Price, 1 Siin..nH A Sfuart 5S| • a Mm. Chan. %,. 129; 10 Tc^^y, 4f.;i ; K.v. Stafuto.'ob. l/JJ >'.'(•. II. ' Primrose cito.l To/^'/^Af v. liuhjer, M. S. in tbis Comf. Solicitor Oenvrnl cited tbo following:- 3 Cruise's Diqc.st 1%; Adams on EMmnit ['V\\\\u>r\,,,,^x), 17; miMurn on had Prupert,/, 4!) ; 2 J/illiard on Mortrjages, 13 ; 5 li. (t Aid. 090 : Tim fiieti set out in the various aflidiivifs. and tbc | oints lak.-nat tbo argument, are sufficientiv set out In tlu- judLr- iiient. ** *=* JoHNSTO.v, E. J., now delivered judgment as follows. TiiiH is H Huit for foreclosure of a mortgage nmdo by Samuel Cupples In 1838, to the plaintilf. Cupplos' equity .1 redemption was subsequently acquired by tbo defendant Adam Roid, and be, on the 20tb September. 1842, nsKlgned it to the defendant, Arcbibald (Jreensbields, under tbe In- solvent Debtors' Acta. The property, being a house and land in tho city of Rail- fa.\. having been sold under the order of foreclosure and sale 111 this cause for more than sufficient to pay the plaintiff; the lefendant, Archibald Groenshlelds, has applied for tbo' sur. plus, $838.05, under liis jucJgment an m>.....o, ,, ah,,„t X.31,. , „„„ „t ,|,e time ot'the „„»i,„. ..ontheb„,evc.d,a,„ln„w believes, that with due dilige.K.. (.reenshiolds might haveccllected sunicient tosatislv his iu,h. me,„ (X7I0 10,. 3d). Ue „„e, net „,.iut t„ auv part on K,' or debt, a, bo.ug o. value-he had tho list ulule,- l,i, | "".1 e„u d i,avo ,Ione so-„,„. does ho negative having l,i„,s, .■ooe,vod any part „f those 55 or neglect, „„,, „„^,|^^j „,,,^,^ .^ __^^^ enouBl,. thoro ,„„„, (,„ 1" » m„,t 1,0 ,l„„v„ ,„ |,„ l,>rgc._„q„„| ,„ ,|,„ „„,„„„( „|. |... .,..;.K...ont-.o Uofe. ,„■„ .,,. w ,„„ ...pU. „, ,:,:' In tho tu-o cnsos relio.l „„ l,y Mr. Roi.l'. c„„„,„l ,|„. „, » Snoe w,„ „.„,„ ehargoaWo only .„ ,l,is oM,„„. ,„ Vi-l" ^ /.re tl,o ,„„.,„„t cl,a,-«e,l was ,l,„twl,ich it .va, v7w " 1 i..*h o81, tho roforenco to tlio Mai-tor was to »»t.„rlai, wi- m,g,,t a„„ o„g,,t ,„ i,avo .,oo„ .,eovo™., o„ ti.o":::;;;:;; JV'so caMo, are i„ „,l,o.. n,,|K.ce« also o»s„„.iallv .lifforont l'"n, 11,0 present. A single securily ,va., assigno I- , , .a 0..0 onso a„U a .j,„l«,„o„t in the other, one ol'l !; , ' .< equal „„,„„,„ „i,h ,1,0 deht to be 8oe„r„d-,l i ' ,' ont e,„g voluntary in itself lostilie.I that cir, r J .Lought the security assigned to be of »„,„„ value "„./, la ."oans should be taken to render it available. I '„ " 1 h"""t, iiiiiL, aim in not Dursiiimr Hinao neasures to the end, and all these circum,/an Iwere aT Mod to and had influence w.th tho learned Judge? Thl W Chaneel or, who in E^ part. Mure carrie, tht Xneral rir'' ,^7,'"'"'" •"'""='■ '''^"""' "«■' "'» Mater^of thj »lio,e there has been forbearance to ,he debtor without tZ concurrenoo of the assignor, and tho Master of 1 „ r' " n..™„to« that this forhearanco „„st be positive;nor,„er:J »nr::rt:-ifrvr:i;':;'"'''''",'"'"!™''' ""'''"-' ^«'' worthl™. Tl , " '""'I™'"'" "ITects, however orti le ». There was nothing to in.licale that either n.rtv >taohed value to tho debts assigned, and the „..si ' "e ''I'o " .n.e to a.y of the debtors, nor took any stept 1 „w!™ tl.«t he oons.dero,! the debts available. In the slate li^ preef it is unnecessary to investigate the deg ee of lib ' -■.-.= *..,, or io ODqu.re whether the circumstances might 256 COLUNS V. REII) AND Otiieus. not Invo assumnd ii diameter to rocniire from tho attorn. >v iiiiil a«,'onti* of Mr. Groenslii.ild.s a fuller aocoiiiit of (!,..,i- reasons for esteeniirii,' the dehtji worthless, and of tlio measn- they adopted for obtaiiiiiifjj iiiforrriitioM on tho su!)j.jct. There is no proof of vuhio, of forbearance, or of loss, upoi: whieh the Court can act. There has boon no Hugf^estion for a reference, there is n,, reason to suppose that an enquiry at this distant period woni i result in anythin.c,' but delay and expense, and there are not wantin.!;: considerations to make 'such a reference inipropoi- under the circumstances of tho case. I am of opinion that i\\\A objection cannot prevail. Th,. next objecticuj ollered to tho applicition of Mr. GroenshieI,|> is that the right has boon lost by laches, and that the .Statute of Limitations applies. This induces tho consideration of the rohittons of ReJd aii.I Greenshields to each otiier, and to tho property. The latter, Bince the assifrnmont in 1842 to tho commence, ment ot this suit in 1865, has taken no step to enforce lii. rights, whatever they were, not even by recording tho assign mont. And as regards tho former tho only passage in Mr. Reid's affidavit concerning the possession of tho land is this; " That from the time of said assignment till the summer ot this present year (l^-'Gi), I have oxorci;^ed ownership over said property, and paid the interest that from time to time become duo to tho complainant, Enos Collins, by virtue ot tho said mortgage." How this ownership was exercised, whether by actual occu pancy or tho receipt of rents only, and whether those rents were more or loss than the interest, are facia of which we have no moro informatiotj than may be gathered from tiic above passage. It was argued tint under 3 «fe 4 George 3, chap. 6, (Provin- cial Laws, vol. 1, p. 90), tho assignee of an insolvent debtor took a perfect title in the property assigned, and could by tho terms of the Act sue in his own name in like manner as the assignee of a bankrupt. There is, however, a markc.l distinction, for by tho seventh section the creditor may, not- withstanding tho assignment, take the debtor's lands and goods in execution, and, I think, tho assignee must bo hold tn tlio attonu'v •i)IIIlt of til-'!!- it' tlio muusur,.. 10 Sul)ji3Ct. tr of loss, uj),j JO, tliero is nn t poriod Winil ! I there iirc tiut oncu imi)roi)oi' provail. The . GroonshieliN lilt the Stiitutr 18 of Reid aii.l ho commence. enforco lii- ing tho uHsigii \sHage in Mr. 3 laud is this: lie summor ot vnership over timo to time l»y virtue ol y actual occii ir those rents of which \vc 1 red from tiie \p. 5, (Provin- jlvetit debtor lud conid by ko manner as or, i\ marked itor may, not- r'a lands and nust bo hold MICHAELMAS VACAnON. 1865. 3^7 :::!; be r^;'^^^^^^^^^^ '^^^' -<^ the alignment -rt.a the assignment to Grernshi;ids C i the nat "o^ tho pno. incumbrancer, and it is laid down that tU. . , r;,;s°',:T"°" '"■"'""°'' "-'^ '■-' -^ "-'-.. ^i:: See ^rfam. on /;^utVy 312 """ Possession, to the estate -that i. i^ 1 ^'^ *« the party entitled jnti, „ft„r u,a. pos.f.i™ Lre^ii T:::; u , r:'r There w„ „„ pHvity „r relation between them It „!/h Jocded " that the laches and non-claim of Zri.l tfi ' of an equitable estate for a period of 20 vll7 '""■ •he case of one, who ranst wifh n tha Iw <'"PP"":"'' " olain. in a Court of Law, had it e " ^"fJZ, Td "" -..an .at po^ JXir ttet '':t:r: '/ •-«iii uucsjuivocaii^ ituvorae.'' ' " 17 258 COLLINS V. REID and Otuers. If Greenshields is to be considered as trustee, and Rei.l as cestui que trust, noither at law nor in equity would liis posses- »ion be adverse. BUI on Trustees, 393, in. *p. 266 ; Mdlimj v Leak, 16 C. B. 663 ; Garrard v. Tuck, 8 C. B. 231. The Master of the Rolls in Cholmondeley v. Clinton, after distinguishing the relation of mortgagor and mortgagee tmn that of ordinary trust roiatiiins says (p. 179) ; " The possos- sion of the mortgagor, or the person claiming that character, is not adverse to the mortgagee, because it is consirttuiit with his title. The mortgagee is, therefore, not barred by any length of that possession, but the possession of the mortgagor is adverse to every other claimant of the o(|uity of rodempti..ij, because it is inconsistent with his claim of title." The cases at law are strong on that point.. Hall v. Deed. Surtees in Error, 5 B. & Aid. 687 ; Doe v. HuU, 2 f). & It as! In these two cases it is declared that there can be no (Jis- seisin at law without a wrongful entry,— a wrongful contiiiu- ance is not sufficient, and, again, that the Statute of Limita- tions cannot attach, unless it is shown that the mortgagor hold in opposition to the will of the mortgagee. Ho it is laid down that the mortgagee may treat the mortgagor as being rightly in possession, and 10 Vea. 453, is in point to show that an equitable interest will not be barred when the Statute ol Limitations does not apply to the corresponding legal interest, Again, in Lister v. Pickford, 6 Now Rep. 244, where trus- tees having mistaken their proper cestui que trust had paid the rents to wrong parties, the Court held that notwithstand- ing the misapprehension under which they acted their posses- sion enured to the benefit of the right parties— saying "as soon as they entered, their possession was attributable to their real rights, and to no others." Now, to what conclusion would these principles lead, bad there been no equitable interest in the case— had Roid beeo in actual occupation under a legal title, when he assigned under the insolvent proceedings ? It would seem that unless there were evidence in such case of a possession in oppoaition to the will of the assignee, the Statute would not run. It is to be considered thai Greenshields had no right to poe- session,— all be could do to promote his interest would hAve MICHAELMAS VACATION. 1866. 259 been either to rodoom or obt«in n receiver. Ho might not be able to do the llrat. and if the rents were small-and of their amount wo have no evidence-so long as they were applied to keeping down tho interest on the first incumbrance ho had no object to unawor by requiring the second. As soon as tho foreclosure suit is instituted he asserts his lion and claims tho surplus. If he is not entitled to the surplus, what title has Roid to olttim it ? Only on tho ground of a purely adverse possession tor ho h.id convoyed away his title; tho laches of Greenshiolda might stand in the way of his recovery, but what would give the money to Roid? Not his equity of redemption, because that he hud conveyed ; not his possession, supposing that possession to have enured to his own benefit, because tho first mortgagee had asserted a paramount claim to that possession under which tho land has been sold. Whether, therefore, I have looked at this case purely in its oquitabio relations, or as these relations are affected by the uialogy of legal principles, I cannot reach the conclusion that the claim of tho second incumbrancer Groonshields has been barred, or that Roid is entitled, although I confess that I have felt tho case to be one by no means free from difficulty and doubt. I ought to have mentioned that the letter of Reid to Green- shields precludes the presumption that the debt had been paid. My judgment is that the surplus proceeds be paid to Archi bald Greenshields under tho assignment by Adam Reid to him of the mortgaged estate. But as this contention has arisen from great laches on the part of Greenshields, I do not give him costs. .^, , , . Order accotdingly. Attorney for plaintiff, CoUins. Attorney for defendant Reid, S. E. Gray. Attorney for defendant Greenshields, Prmroae. 260 HAMILTON AVD Akothir v. BROWN ahd O-u.as. HAMILTON AND Another v. BROWN and Others. itajf 31, 1866. Wh.i« PblaUik l»d broaght .n wtlon M«i>>« defendant, tor an .11^^ tW- on th..r n,in..and it app««d that th. mine wa. within th. li„,lu oT^ ^ r.'^.J." *5'"'J°^"'**' •• tb-t th. lot had b«,„oocupi«op^y. or irre,>arable ml-chief i. threatened .!«!,? K^?i!'"rl^"" ?' '" '"•^""°''°'' « '«^" •» ">« f"*"- "hould be fully di^ fceto, if he faet. .oppreeaed wonld not have altei^d the decision of the jX ^ .pp"::rthr»fr^ '^"■^"" -^ «^'"- -^ ^-"- - - •«^^^- This was an application to set aside an order for ,-., Writ of Injunction, and to dissolve tho writ on the grounds that the title to the property on which the defendants were restrained b> the writ from mining, Ac, was in dispute, and that i! plaintiffs in the affidavits on which they had applied for the order had suppregst^d material facts. The facts alleged to be suppressed wore that tho dofendanH claimed tho disputed property, and had forbidden tho plaintiffH fron, trespassing on it, and had broughtan action against ti.era lor HO trespassing after such notice. TIm. case was argued on the 30th April, before the Judce m Ivjuity, by McCulhj, Q. a, and W. A. Johnston, for the pin. n litis, and the Solicitor Oeneral and W. Twining for the deltiidantg. 3fc Cully, Q. a, cited the following authorities: 2 ChUly'i f '3',f'^J''1; ^^^^^ "^"^ ^^^^ ' 2 DanieU's Chancery pL ttct; fVUhrd'aJSquiiy Jurisprudence, 3i2; 16 Vesey, 61. Solicitor OenercUmd W. Tunning cited the following: 2 Chiff>/§ Arch.. 0, B: Prac /lAa, ^a \ ia_«? ,«/.^ wU. I i Vmv iUDU ujy; lor for a Writ of grounds that the MICHAELMAS VACATION. 18W. gfi ^f''''^\^'*^y ^^rtsprudence, 382; Eden on Injunctions, iV^i'n !k^f ' 2PAt7/»>,164; 8 F«ey, 89 ; 6 do. 147 lido. 110; 19 do. 146; 6 do. 51; i New Hep. 459 ; 3 do. 669 ; The material facta stated in the various affidavits, and the pomtg taken at the argument, are sufficiently set out in the JDUgmeot. Johnston, E. J., now (May 21, 1866) delivered judgment as follows : The plaintiffs having brought an action of trecpass against the defendants for breaking thuir close, and extracting man- gsnese, obtained an injunction ex jmrte on affidavits stating their possession under Stephen Parker of land, in which they had sunk a shaft to a deposit or pocket of manganese, and that the defendants from a shaft in their adjoining lot had run a gallery to and beneath the deposit on plaintiffs' land, and were by that means carrying off, or were about to carry off, the ore which the plaintiffs were engaged in working. The defendants have moved to dissolve the injunction on affiduv.tH on two grounds:- Ist. That the title is in question. 2Dd. That the plaintiffs suppressed material facta. It appeared that Mr. Nutting, being the owner of a rectan- gfllar tract of land, sold specieed quantities to three several persons, and to Stephen Parker whatever should remain. (^ a survey attended by the parties interested, a line between Parker and Edward Church, the adjoining purchaser, was run about 9 years ago,— was marked throughout and xvas hold to on each side, the parties fencing on it as far as their cultivation extended, and being regulated by it towards the rear in cut- ting wood and timber, and the blazes were subsequently renewed, where they had been obscure, by Parker and the son of the then proprietor, Edward Church. The plaintiffs' man- ganese mine is on the Parker lot if this line bo correct, but the defendants allege that there was a mistake in running the hne, and that by the true line it tt on the lot of the said bdward Church which they have acquired. The plaintiffs offered affidavits to strengthen their title, an 262 HAMILTON AKD Akoth«r v. BROWN ahd Others. in one particular to contradict. Tbo delencJuntn' counsel I will first diaporte of this point. Thoro is much contradiction in the auflu.ritio. cited. Th. cases referred to by the defendants' counsel decidedly nog. ve l.e adm.88,b.hty of affidavits on Bhowin^' c.u,.o to sunno^ the r.ght to the injunction. On the other htnd Daniel II ' PracHce lays down the right in unqualified termH, and many ca es support that view. A strict examination ivouM pr^ bably show that there is a distinction between difTorent ca I of complaint and different stages of proceeding., and eXp; somejlnng .n the large discretion exercised 'in' easel oil.' In Norway y. Jioioe, 19Ve8.154; the Lord Chancollor in waste held the plaintiff entitled toasserthis title byaffi l^^ contrad.cfng the answer which denied his title to stay uJt In Peaoocfc v. PeacooA:, 16 Ves. 50, affidavits were received contrad.ct the answer, - by analogy to waste." There t Lord Chancellor said : '• The Court with the view in each c to have sufficient, and no more than sufficient informatio does exercise a discretion in hearing affidavits " InPackingtonv Packington,l mckem,lOl, Lord Hani wicke injunction to stay waste, is the plaintiff confined, as i„ an .njuuction to stay proceedings at law, to make out his caae from the answer only, or nmy he strengthen his case l,v affidavits?" He answered the question l.y saying: -rhe plaintiff might read the answer to show his right, and miirh also read affidavits to make out the waste " ^ ♦.W^T^,'!"'^'" ^"''^"''■"^^ *° '^''*"-«''^« '"y owndiscre. tion I should deem it unreasonable that a party, wlm seeks so summary a remedy as an ex parte injunction, should beallo»vod to strengthen his position in matters relating to his right, and within his power when he applied,-and only reason.U)le that he should be permitted to contradict or explain matters newly put forward in his opponent's affidavits. Tho greater portion of the affidavits in question would fall under the ■ former head. The assertion of Arlington Church, the son of I ii.awara Ui.urch, that he removed the line without hig father's " ND OtiIEIU. ondiintrt' counael I 8ul»ject to the MICHAELMAS VACATION. 1864. itio^ cited. The (iHcidodly noga- cfuico to support 1(1 Daniel in his torrnH, and tniin)- tion would pro- difujront cmiseH gH, iiiid, porliiips. iu oMtiti ot in- d CljMMcollor in itlo by iifTidavHts o to «tay waste, wore roct'ivod ite." Thoro the ew ill nacli case mt infonrmtioii, iord Hardwicke to coiitinuo an Hnod, aH in an ko out liiri case n his case by 'uyiiig ; " The gilt, and might iy own discre- , who Books 80 uld hoalloivod to hia right, Illy roaHoiiable xplain matters Tho greater »11 under the rch. the hod of at hig fatber't 263 authority would very properly, I think, be met by the father's : : oZ I '"" 'T"""'' "'^^ "•'"'" -•^»' »- knowledg To the purpo-e of regulating the cutting of logs. 1 he view of the case which I take does not make it neces- sary to decide this question, an.l I hope soon to bren bl d by general rules to define the practice on this point, aioi others winch the argument has presented On the objections taken by the defendants' counsel to the continuance o the injunction, it is true that in genera ii June fouH wil no be allowed when the title is in Ipute, be CO tinu. where the., has been the suppression'of ^aterL facts. But I do not hnd that these prin , ;eg have been acted pon with he inflexibility, or to the extent assumed by t e I., .evoml cn.e, I |,„ve l,«,l „cc«,i„„ to „cl upon tl,e dr.. «.mad ,.n„o,pl„. Bu,. i„ o„„ of t.,o,„ o„,„, th' ,,«fe°,l ™ W been .,. po,.„,™„ f„ r„„„,„ „,. f. '^ Si^^ir."" ' : '1 i' """ """«"' """"" "'» -er,l ; reeroct on before a «„ie then pendinR w„» ,l„cidod JdZ .Inch already a j„ry |„„1 diaaBrood ' " li. the decided cages ti.ero Imvo been generally if „ot always crcumstances which p>v„ application to t . FU.O.P e „ Spotti^u^ode v. Clarice, 2 Phillips, 158 " Court bed the right to be uncertain, but did not therefo e cessardy dissolve the injunction; they considered the gre,,' »d .rreparable ,„j„ry ,o tho defendant fron, restraining the »l« of b„ almanac at that season of the year, and dissolved .!.» ".junction, directing the defendant to keep an account « tl. plaintiff ,0 be at liberty to bring an action '' iCraig, 171, there was a doubtful contention, but there Z 6 Court acted on tho circumstances according to that C .crofon e«rc>.ed in cases of injunction, \he MasterTf lid "f ■ <"■ '""' " """""'"« "■» inconveniences tch i»g .t, I should »nquestion,bly run much greater risk of doi,„ mischief bv eontlnyi... .1.. :...■..—.;.. .. _ . . """"« (li>u"""• »...! only tJ even against a , again, the mm piirty muHt hnva It under claim of t'on, by the / ct the lot asRigiied 'l»»in, and occu- iotor of the lot no iiitorruption of nine yours, loans intend Uy r prejudge tU • trial and full should be pro- in their JoH.Mir, h' the defend- objection. To ould be to do do. adjuiJicatc j/oro nie. To ing in diHpute this can over- eir letidor by oncoi;rago a c peace and long as the rs' possession oately unsuc. 08. good deal of he propriety >njUuctioQ ejs « »noth,r ground 1^.1 ?o^d r '" """°"'''' »'"' '"> '""'='''<»' .1. .irong oxprcioM rff. 1 ^'"°">'-»'™" R"lf», who „.ed I .11 not . "rr;:™;" 7,"™'""'" • ■" i^^^ "' "•" — . ■kc.«inK «„ot|,„r ', , '^""'""'' '" '"PP"f' "i« injunction by .«it Jto T" "^ ""™'n.t«nc», in »hich he would bo .VKHten^trdoIr «'"::;? ^r^' ^^ ^: *"* ' «- »-opre,ontation::na';, j Sru' JLm 'r 1 "' c.rr'rititied.'oT""™""""'"^-" "■" "'"""■'f-^ "■- JtTtti^oi zrnL:r -«^«p--. '. proprietor. U i. io .hi. view ^'i,.'^^^2::t MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 I.I 1.25 IIIIIM y. 1^3^ II 2.2 ■ 03 ■■ 13.6 II ^^ tii fbim ^ y£ ||J£ bi u ■lUU 1 1.8 ,,, 1.4 1.6 A /APPLIED INA^GE Inc ^^ 1653 East Main Street r.a Rochester, New York 14609 USA iSS r716) 482 - OJOO - Phorie SS (716) 288 - 5989 - Fax 266 HAMILTON AND Another v. BROWN and Others. reply by tue plaintiffs are, as I conceive, unimportant, as that act 18 sufficiently established by the previous affidavits. So the notices and suit by the defendants were but an asse^ion ot a right claimed by them to interrupt the plaintiffs in work- ing the mine in their possession, and the affidavits of iK, plaintiffs state that the defendants had interrupted them After hearing the affidavits produced by the defendants, and seeing their claim of title expanded, I still think the plaintiff. Should be protected in their possession until the title is ,ie cided, and, therefore, entertaining that opinion I ought not to have refused the injunction because of the notices and action. I therefore, discharge the rule nisi, but in view of the with- Holding of the information of the notices and action I do not give costs to the plaintiffs, and I direct that the injunction be continued, and the defendants restrained from mining, &c., in the disputed land until the title shall be tried at law or fur- ther order on terms, viz., to keep accounts, &c., and pay amount and to give security, &c. ^ V i Order accordingly* Attorney for plaintiffs, Blanchard, Q. C. Attorney for defendants, W. Twining. • The following is a copy ol the order granted •- Halifax SS. Before the Judge in Equity, Monday, 2 let May, 1866. < John Bbown, and others, Defendants. I'w or rnt» f"T^ T^"** °' ^"^ ''^"'™" """' '^« «"« «bali Jdeter^ne at the Jnn h f ™!''°''!'^'y '"'»'"• O"* ^onih . verified account of all the ore raised by irnrthe: to ,h r™^; " '^^"^ ""^ ^••^ «"-« °f «»« defenlTJrt that Z ptaTntS l?.rr. ' **''"' ''' ™"^' ^"^"« '""^ »"« P«"«'— BOtbylC?rlttr« "^ r"°* ^" ""•• ''»'« °^ "^ the o«, which shall be Lo^f rei^rof-^^LTar^r^^^^^^^^ --• the Court when ordered^ " " ^^^'^ ""^ raDnnued to lnd Others. important, as that •us affidavits. So but an assertion plaintiffs in work- affidavits of the Interrupted them, e defendants, and link the plaintiffs ;il the title is de ion I ought not the notices and MICHAELMAS VACATrON, 1866. 267 And in thn event of the title being established in favor of the defendants, that the pla.nt.ff. pay tho defendants for the nett value or price wier .ieducting nrtt ^x-^n- 869 and charges of -ho rnringanese or ore «ntten or sold by them since thn com.nenco- mentofthn defendants' snit out of tha disputed land to which the defendants may establish luie, lie arooiint to be aecertained under the order of the Court, and to be added 10 the damages assessed by the jury or otherwise paid a. the Gon.t may tT~T ?" "" •''''""*■' ^'"^ "^"'''^ '" ^^ «P'"-°^«d by the l-rotuoDola-. at HttJ'fai tor the fuliilmeril of these terms in eight hundred dollars. By order of the Judge ia Equity. (Signed.) J. W. NorriNG, Prolhonotary, view of the with- action I do not ihe injunction be 1 mining, '&c., in 5d at law, or fur- s, &c., and pay accordingly* 866. ifendants from certain it, and the defendao's lich having been fully ' that the said rule be and the defendants med by the plaintiffs' hall be determined at ay, that the plaintifla ' all the ore raised by the defendants' writ so a verified account le same period— and le ore which shall be aj be made thereof, ed and sabmitted to CASES DBTERMINED BY THE SUPREME COURT OF NOVA SCOTIA, IK TRINITY TERM, XXX VICTORIA. McINTOSE AND Another v. CULLEN. J^uly 17. 1866. ..p.n-.t.„d .„d dl«c. th. w»fc £'.„! ' '"' ''""If «<»«i»»«l to «>.r..rd,„ft„p.,„«,' ™^;^;,™'' "P"«»» <" .ii»PProv.l, h. c.o. intT„rb:,,J'"'''rT'.*"" '«"'"°S " -rtain contract m writing between tbe plaintiffs and defendant wherebv tl,«r wok tTr^^t '""';°. «"•"« -""'hs after completion of tbe work to make certain specified alterations, and additions in and to a building of defendant in tbe city of HalifarZ plaintiffs providing tbe materials, tbe work" to - b^^t't inspections as it proceeded, and to be complete 2 satil fection of the defendant, or each person as he sLnld appo n tbe work, according to tbeir contract, provided a larire but that defendant during the time limited for performance zo me ^.emiooa, waerehy they lost the profits to which SCOTIA. RIA. LEN. >r a special oontracf, int or wilf il (Jcviation rk (lone, tho measure m aa it would lake to lor a speci il contract gh he complained of itad that he did not himself continued to iapproval, he cannot )rtain contract , whereby they 9 last of which pletion of the id additions in f Halifax, (the ' ubject to . the satia- tould appoint), prosecution of ided a large to complete) ; performance, refused them ofits to which TRINITY TERM, 1866. 269 they were entitled, and were put to great expense in provid- .ng marenals for the completion of their engagement, and were obbged to discharge certain sub-contractors and ti pay them compensation The declaration also contained the com mon counts for work and l.bor, &o. Pleas, admitting the con- trac , btit alleging that plaintiffs in violation of th!ir agree- ment proceeded to do their work with other and inferior materials than provided in their agreement, and on other plans and in other manners and work,nanship than stipulated for, ag.m«t which he from time to time remonstrated ; that they pers^sted ir, proceeding nevertheless in the erection of a kind of building which he had not agreed for, and of inferior materials and workmanship; and thereupon he, not being able by any other means to prevent plaintiffs from so doing, forbade them further to proceed, and requested thorn to ri;;ove the materials from his premises. There was also a plea to the common counts of not indebted otherwise than under the ■special agreement. At the trial before Wilkins, J., at Halifax in October, 1865, although the evidence was somewhat contradictory it an- peared that the plaintiffs in several particulars had not per- formed the work contracted for in exact accordance with their written agreement, the principal deviation being in the size certain studding which they had made 5x3 inches, instead of 6x4 inches as required by the specification, and which was also not mortised both at the top and botto.; as required by the agreement. It appeared, however, that all the work had been done under the inspection of an architect (Marshall) appointed by the defendant, and that after Marshall had ty leter forbidden the plaintiffs to proceed, defendant had him seh given them instructions with regard to the work. Mar- shall also stated on the trial that he had not supposed that he plaintiffs would abandon the work on the recei; of hL letter, ut that they would go on and make all right. Bush an architect, who was also one of defendant's witnesses, testi-' fied tha it would not cost a great deal to make all right The learned Judge, after contrasting the conflicting 'testi- mony which he left to the jury to decide, instructed them hat the mam question for their consider.,tion was the qua?^ turn of damages which the plaintiffs were entitled to receive 270 McINTOSH AKD Another v. CULLEN. He also told them that it was clear that when the work wa*; stopped by the defendant, no rational man placed in his situ. ation would treat the amount of work done and then in a material form on his premises as useless, and a nuisance and incumbrance. He further said that on the contrary many ot defendant's own witnesses proved that when plaintiffs' opera- tions were stopped by defendant's act, the substantial contract as understood by the contracting parties might have been com- pleted at a certain cost, and that, in the judgment of some of them, not a very heavy one. His lordship also commented on the position in which Marshall stood to the parties, being defendant's inspector, &c. The learned Judge concluded by instructing the jury to find for the plaintiffs the original sum stipulated to be paid by the defendant, after subducting from it such an amount as would have been necessary to complete the contract when the work was stopped. The jury found a verdict for the plaintiffs for .£290, and a rule nisi having been taken out under the Statute to set it aside for misdirection, as contrary to law and evidence, and for excessive damages, it was fully and elaborately argued during last Michaelmas Terra by McCully, ^.6'., and Blanchard, Q. C, for the defendant, and the Solicitor General for the plaintiffs. The defendant's counsel contended that entire performance of the contract was a condition precedent without which the plaintiffs could recover nothing, and that the main question was not the quantum of damages, but whether plaintiffs had per- formed their contract, and that, therefore, the learned Judge had misdirected the jury on a point of vital importance. The Solicitor General contr^ argued that the modern cases had altered the law, that the failure to perform the contract must now be in something essential to prevent the plaintiff from recovering. WiLKiNa, J., now delivered the judgment of the Court. After referring at some length to the pleadings, and his instructions to the jury, his lordship said : It appears to us then that there can be but two questions for our consideration,— first, " Was the Judge authorized to iuatfuet the jury to assume that when the work was stopped, TRINITY TERM. 18G6. 271 pliiiiitiflrs liad .siibHtMiitiiilly performef] their contract up to that time?" second, (that question being answered, if it may be, in the affirmative,) were the jury instructed rightly as to the principle on which the amount of damages was* to be adjusted?" Before considering these questions, it will not bo without its advantage to reflect on what wo have 7wt got to consider. Wo have not got to deal with the case of a fraudulent, or wilful deviation by a contracting mechanic from the stipula- tions into which he had entered,— the case of the owner of land on which u contracting party persists contrary to his agreement with that owner, to insert into a fabric in progress of construction some material which, if suffered to remain, will be irremediably injurious to the structure, and respecting which the other part as soon as he is aware of the fact, takes his stand, and at once forbids the defaulting contractor to pro- a'ed, and so repudiates all his subsequent acts. To come home to the present case, we are not called on to say what the legal consequence would have been, if, when this defendant knew of his own personal knowledge, or of that of his inspec- tor, that plaintiffs had inserted and, when required, refused to remove the particular studding proved not to have been of the stipulated size, he had then absolutely forbidden the plaintiffs to proceed, and had not thenceforth expressly or impliedly recognized their subsequent proceedings. Of the two questions referred to it will, perhaps, bo more convenient first to consider the second. "Assuming that there was in some particulars a deviation by plaintiffs from the conditi JUS of their contract— was the principle on which the jury were instructed to fix the damages, one that is sanctioned by law." The authorities show that on this point there can be do question. The whole doctrine involved in the inquiry will be found elaborated in a note to Cutter v. PoweU, 2 Smith's Lead- ing Cases, 17-18. Some of the cases turn on a point unne- cessary for us to consider, viz., whether the remedy must be on the special contract, or by the count for quantum valval It is unnecessary to be considered, because the writ of the plaintiffs, who have a verdict, contains both forms of action. The history of the remedy is curious. For a long time it 272 McINTOSH AND Akothbr v. CULLEN. was held that under the circumstances of this case, no niattei to what extent defendant had deviated from his contract the plaintiff, suing for the contract price of his work, was entitled to recover the full amount of it, whilst defendant's only remedy was by a cross action. ^ Then, again, it was held, as in the case of Ellis v. Hamkn 3 Taunt. 52, that the slightest deviation from the contnic't prevented the contracting builder from recovering anything Finally, there was adopted that which is unquestionably the rale at the present day, not only, in England, but in some if not all, of the more enlightened Courts of the United States. Before referring to the cases, we may notice the followinr. passage from 2 Srnith's Leading Cases, 1 1-12, in note. " It is submitted,'-' ho says, " that it is an invariably true proposition that wherever one of the parties to a special contract, not under seal, has in an unqualified manner refused to perform his side of the contract" (and note this defendant has in effect done so, when he forbade to plaintiffs access to his premise*) "or has disabled himself from performing it bv his own act the other party has thereupon a right to elect to rescind it 'and may, on doing so, immediately sue on a quantum meruit for anything which he had done under it previously to the red- eion." " This," he adds, " is apprehended to be established by Withers v. Beynolds, 2 B. & Ad. 882," and certain other cases which he cites. Again, he says, "The general rule being that while the special contract remains unperformed (meaning of course capable in reference to the acts of parties of being performed) no action oUndebifatus assumpsit can be brought for anything done under it, we now come to the exceptions from that rule The first of them consists of cases in which something has been done under a special contract, but not in strict accord- ance with it. In such a case the party cannot recover the remuneration stipulated for in the contract, because he has not done that which was to be the consideration for it. Still if the other party have derived any benefit from his labor it would be unjust to allow him to retain that without paying i anything. The law, therefore, implies a promise on his part to pay such a remuneration as the benefit conferred upon Lim TRINITY TERM, 18CG. 273 is roHsonubly worM,. This i, conceived to be a just exnreg- sion, ho concludes, " of the rule of h^y as it at present pre- vails.' ' * To the same effect spe.ks Addison, (Addison on Contracts, p. 198.) Lord Kllenborough's rule, hvid down after consult: >ng the Judges, in Farnsworth v. Garrard, I Camp. 38 is •tlie clauu shall bo co-extonsLvo with the benefit.*' Su'ch also IS the doctrine, except perhaps as to tho form of action. mBadhej Rdl, 4 Bing. N. C, 652. In Thornton d al v PW 1 AI. Sc Rob. 218. it was decided that where a trade.- man finishes work (in the case it was datinr, hmldtngs) differ- .ng from specification agreed on, ho is not entitled to the actual value of the work, but only to the agreed price minus snch a sum as .t would take to complete the worl according to the specification." Por Parke, J. The principle of this msi I rms dec^,^ou is expressly recognised by the Court in f^^^O^'"'''''''-'''^ also in Z.e. . ..«., Bayioard v. Leonard, 7 Pick. 181, is a very interesting case directly m point as respects the principles involved in it, and one that shows the doctrine of the Supreme Court of Massa- chussets to be in accordance with that now held in Westmin- ster Hal. The learned Chief Justice Parker who decided it referred to It as governing another case before him, also in point, viz^m.^ . vThe Proprietors of the First Congregational Meeting Bouse in Lowell, 8 Pick. 178. Since the decision of Parke J. in the case cited from Moody d Bohmson, I have not found either in the cases cited a the argument or in any other case, one single decision opposed to It. The remaining question is one that refers to he written contract and to the evidence, and it makes it our duty to inquire, "whether, in view of the facts, the fury were at liberty to assume that, when the plaintiffs were for- bidden by the defendant to proceed with their work, they had up to that time, substantially performed their contract^"' And thus, It appears to us-there existing no ground for imputing to pkintifTs fraud, or a wilful, perverse design to conceal from defendant or his inspector bad materials, or to save their own pockets by imposing on him work of Ieoo^.oI„. lliun that which thej contracted to provide for him^-resolVes 18 274 McTNTOSFI AND Anotiieu v. CULLEN. Itself into an inquiry, " whether that portion of the work duno when the progress of it was arrested was useless to defendunf in a sense, that by expenditure of a certain sum he could not make the work done at that time, when completed, as .^ood for the purposes contemplated by him when ho entered int„ the contract, as it would have been if there had boon a literal and perfect performance by plaintiffs of their stipulations ' One's common sense revolts at the proposition, " that bo cause a contractor has honestly deviated, in some slight par- ticuiars, from his specifications, he can recover nothing for work actually done, work of real value to the other contract- lug party, on whose land the fabric stands which embodie3 it-and yet that result is reached, if the contention of defend- ant 8 counsel at the argument must be received as law I To say nothing at present of the evidence of plaintiffs and of their wit- nesses, which we must assume the jury believed, and which If believed, decisively shows that the defendant could by expending a certain sura have cured all defects, and Lad a building substantially according with plaintiffs' contract we turn to the testimony of defendant's witness^Marshall-' than whom none could be more competent to judge It shows conclusively that the work done, when the vvork'was stopped, was not useless, and might have been perfected He says, "I did not suppose that plaintiffs would abandon the work, on my letter, but that they would go on and make all right." This is decisive to show that, in Lis opinion if they had been allowed to go on, they could have made all right. Again, he says, "there would be no difficulty in making all right if what the architects and carpenters" (meaning those who had been produced by plaintiffs as wit- nesses) « said yesterday in their examinations be true " Now It must be taken, alter the verdict, that it was true, and! therefore, Marshall's testimony is destructive of the onlyj ground of defence that could possibly avail the defendant. It must not be forgotten that Marshall, with a full knowledge of the defects and deviations-few and not very important j they are-which he pointed out in his testimony, nevertheless, continued to superintend and direct the work up to the 8tb August, when the letter was written of which the object was to prevent its farther progress. On no rational principle ns\ LLEN. >n of tho work duno seloss to cJefondiint, ij sum he could not complotud, as good ion ho entered inti. J had been a literal, oir stipulations, position, "that bo- n some slight par- cover nothing for the other contract- Is which embodies ntention of defend- ed as law I To say fsandof their wit- lieved, and which, fendant could bj defects, and had )laintiff8' contract, tness — Marshall-- int to judge. It 3n the work was been perfected. i would abandon go on and make in bis opinion, if d have made all be no difficultj and carpenters" ' plaintiffs as wit- » be true." Now, t was true, and, ive of the only 1 the defendant, a full knowledge ' very important Qy, nevertheless, rk up to the Sth I the object was tional principle TRINITY TKRM, 186C. 275 to pay for the work of the.o plaintiffs then previously done topped, at the moment of knowledge of any one of the Lread.es of contract, which it is now insisted that te^ cot m tted. According to the defendant's evidence hi. condem na ,on of work and materials is so unexclusive that it d c^s abehef that ho must have been laboring under delu on an m..appreonsion about the real nature' nd charact of llL.\\"T"V'''' ''" testimony of his inspector just adverted to, he sa.d, "as a matter of prudence, I would not attempt o support this now defective building,"-!agair "the roof ,s 80 bad that it cannot be set to riLs ''--He' even condemned the wall, though Marshall admits thatTe passed .t as unobjectionable. As regards the roof so abso utely condemned by defendant. Bush, one of his own 'wl esses sa,d •' I would not pull down, but I would not be ^ee,^. the roof-. .ouM not cost a ,reat ^eal to'll On the point of waiver of objections by permitting plain. ! XTTf f'' knowledge of defects, it is observable tja whdst defendant said : " I cannot say whether tMsi^^l WTs giving him a sketch for shop-front) was or was no after Marshall's letter," plaintiff, Innis, said, "it was long after We must, therefore, take such to have been the fact. n on the other hand, we confine our attention to the antiated and we find also a complete failure, on'the pU of t "iTfT' *° ^"^^*^"t'*t« *»"•« his defensive allegatbn wS he had ^^r^^^^r/' ''^ --ting a kind of building wh ch he had not agreed for, and one marked by inferior matena s and workmanship." The evidence last referred L shows that had the plaintiffs been allowed to proceed to co- f^etionof then- work, defendant wou d either have had s„ch an erection as they stipulated for, or that there would have trlirthV."'''"^''^"^ '^^"^^^^ «^-* letter of ?het eon- tract, that by means of the legal privilege incident to def«nd- suDduct trom the contract price an indemnifying sum, aui :lSfc; 270 IIAUTSIIOUNE akd AxcTiir.n v. WILKINS an,, Otiivms. lio couKl within the limits cf tUt contract prico liavo c,,,,, inundod, rouliy and substantially, sucli a huilding as plaintilF. ongagcHl to provide for him. Tho learned eoun.sd for tl,, dolundant was understood at tho argumont to ol.joct " that i\,. ovidenco aflordcd no su/liciont data to onahio tho jury tu ascortan. tlio amount of dum.igos/' But that .a.jection is obvi ously unfounded, for, to say nothing of tho inforenoos as t„ tho quantum which tho jury might havo drawn Irom tho work proved to have been undone when phvintills wore stopper'^ rehitively to wliat they had engaged to do, and to tho consi,l.'.' ration therefor, there exists direct testimony given by tho plamtifTs, which, if beh-eved, presented abundant grounds lor arriving at a legitimate conclusion on tho point last notice,! For these reasons, wo are of opinion that this rule mu>t b. discharged. ,^^ „ Utile discharged. Attorney for plaintiffs, J, N. Ititchie. Attorney for defendant, Blanchard, Q. C. IIARTSnORNE and Another v. WILKIN'S Juhj 17, 1866. AND OTHERS. ..iJt r°,°' '"°'' Pe'^ns.and espocially where relatives, perish in tho same calamity tho law recogmzoa no presumption of survivorship; bat in the ioIrI I the matter wOl be treated as if all of them had perished at the same momcn ?o theThTr! "°"° '^ '^° ^"''"' ""'" ^ ^^^^ "^ ^"^' transmitted any righ. A testator. J. C, by his last Will bequeathed a .ertain fund to tmsteoa in tru.. after payment of an annuity of £30 sterling to E. H.. and a disposition of the remammg mcome dunng the life of his daughter. L. C, (who was illegitimate), IroTthe .% 'T; ^"«y.^^A^~ °f ^- -'^ " ""J ter death as hor.,i„,.ftor slated. "^ ^""'*. ""I !'" 'luly j.rov.d the will after steamer nor L. U. „or M„y <,. hJ U ' "''"^■'' ^""^ ""'""■^ "'" B.. (Who survived he .^."V': ''^ ^""'"•^•" "'"' ^'"' """ ^^^ "^--^ H. 8 //W^i. nr... „.,u a.e f„„d could n. b^ : : Z7t7' "", "7 •' , of the chlMro,, of him.olf and „(• r n , *""" '" "* '^- "• •'" "'« '"ir at law .bould be livi.,K at the d.cea* of r I ' .''"."" '""" '''"'''"" '""''' """"''*' «• the .cttH.or. "' """ '' '"''■ '^''"''" " ''^"i'-'-'od eutlrdy ou tho will of .r, lawful iss.0 und ,h r' w" " "T'r^''^'"-' ^^ "- ''^'"^ -'I'-t . avi„« 'he had issue born .U tit oVHr*" r"'':'" '''"'•*'''"" ^ '■^^""." «'"d .nd her. ' ''°'" '*"' "" ^'"'"^ «* survivorship between her issue Wment of the annuity t^EH ""' "' "' '""""*• •^""J""^ ^° ^^« or.':^r::;reresrar:vj::r7r'^' ^^^"''"•^•^ ^--^ ••■« t.-.e ia.«3tacy. was ordered t^^ l.td a rtt'', • •'" T'' "''^'^ '"''^'^'^' ''»« «ach argument. *• ' ' ''"' ^°"''«'' "^«^'-'°" "^«"ed until after This was a special case on tlio construction of the will or ela^ Joseph Creighton. stated for tho considerat: o e Cou.t by the parties interested in the will, or in ti . estate t e estator ndependently of the will. The wi lis d ted 13. The testator left an illegitimate daughter^ Louis. Cre ghton, a sister, the late Mrs. Wilkins, the child on o" brother, and the children of another sister T IT ul -ried H. S. Bagnell, shortly after Ihe ah of t le tf. 7 n had three children, all of whom perished wi I r t /„' --...vdand elaimea ino whole of the estate as heir to big 278 HARTSHORNE and Anothkh v. WILKINS and Others. cU'dren, or pare of it as a legatee of his wife. Five nieces of the testator claimed the whole under a clause in the will Itiero were four children and eight grandchildren of Mr/ W| kms, three children of the late John Creighton, four children and a grandchild of the late Lucy Binney, all of Whom were claimants ; and twelve of these, to the exclusion of the grandchildren of Mrs. Wilkins, claimed as the testator's next of km. The case asks the Court to decide on the con- flicting claims of the defendants, and to adjust and decree their rights so as to enable the plaintiffs, the trustees, to cany out the trusts of the will, and to make a proper distribution ot the funds under their control. The material portions of tho will affecting the questions raised by the case are substantially as follows :-The testator bequeathed to the plaintiff., Lawrence Hartshorne and tho Rev. James Stewart, (both of whom are now deceased) the 8um of £8133 2s. lid., thrc^e per cent, consols, in trust after payment of an annuity of £80 sterling to Elizabeth Horn and a disposition of the remaining income during the life of his said daughter, Louisa, that the plaintiffs or the survivor his executors or administrators, should, and would, after the' decease of his said daughter, transfer and dispose of the said sum unto all, and every, and such one or more of the children or grandchildren of the said Louisa Creighton as should then be living, in such parts and proportions, manner and form, as the said Louisa Creighton, notwithstanding coverture or whether sole or unmarried, by her last will and testament in writing or any codicil in writing, or by any deed or writing disposing thereof to be by her signed, should direct, limit, give, or appoint, and iu default thereof, then unto, and among the child or children of his said daughter Louisa living at the time of her decease, to be equally divided among them if more than one, and if only one then to such only child ; and further, should his said daughter Louisa die without leaving any lawful issue, then it was his will that the said sum be paid over by his trustees to his nieces in equal proportions, or to their lawful issue then living, subject, however, to any legacy or legacies, not to exceed in the whole one thousand pounds sterling money, which his said daughter Louisa in case she should have no lawful issue, might . by her last will and 3 AND Others. e. Five nieces of lause in the will, children of Mrs. I Creighton, four cy Binney, all of the exclusion of as the testator's Bcide on the con- t and decree their rustees, to carry oper distribution ig the questions s : — The testator tshorne and the vv deceased) the Is, in trust after Elizabeth Horn, Juring the life of or the survivor, would, after the pose of the said ) of the children 1 as should then >er and form, as TRINITY TERM, 1866. 279 ; coverture, or rid testament in deed or writing Id direct, limit, into, and among sa living at the among them if only child ; and without leaving le said sum be proportions, or vvever, to any e one thousand Louisa, in case 9r lust will and testament give and bequeath notwithstanding her coverture. The first of these provisions, as will be seen, transfers the fund after the decease of the daughter to such of her children as should then be living, in such parts and proportions as she should appoint, or otherwise in equal shares. The second transfers the fund, should Uie daughter die without leaving any lawful issue, to the neices of the testator in equal proportions, The third empowers the daughter, in case she should have no lawful issue, to bequeath ^1000 of the fund as she should think fit by her last will notwithstanding her coverture. The case sets out that th^ daughter in the month of Febru- ary, in the year 1862, then Louisa Bagnell, with all her chil- dren, three in number, embarked in a British steamer called the " Wie.sbach," laden with warlike stores and bound for Halifax, to rejoin her husband, the said Henry Sedley Bag- nell, but neither the said steamer nor the said Louisa Bagnell nor any nor either «.f her said children have ever arrived at the port of Halifax, nor have any tidings or information since been heard of the said steamer '• Wiesbach " or of the said Louisa Bagnell, or any or either of her said children, or what has become of them, or how or in what manner and when the said steamer was lost, nor how or in what manner the said Louisa Bagnell and her said children ...jd, and which of tha said mother and children died first or last, but it is assumed that some time during the year of our Lord one thousand eight lumdred and sixty-two the said Louisa Bagnell, and all the children that she had by the said Henry Sedley Bagnell, perished on board the said steamer " Wiesbach " t^at foun- dered at sea under circumstances unknown. The case further sets out a will made by the daughter after her coverture, under the power reserved to her, bequeathing out of the fund X600 sterling to her husband, and ^400 ster- Img to her mother, the said Elizabeth Horn, which will has been duly proved by the husband as executor. The case finally sets forth the various aspects under which the several parties lay claim, which are stated as follows : First— Sarah Maynard and her husband in her right- Mary Whittey and her husband in her right-Lucv Kearney, and Jane Hays as nieces of the testator, and Charles w! • ^: 280 HARTSHOKSE and A^orn.„ „. WILKINS and Others. Paikei-, i,i right of representation of his motlier Lucv P.rl-^r sen..>uv.,s of n,ecos of tho ,aid (.....or respeotiveb. S. Su«,n>lly-I,owi-. M. Willci,,,, CImrlo. T. Wilkin,, Marti. I W ll<„,, Mophcn Bi,„,oy, Eiohanl Binnev, E Louisa BagnoH and her chddren, the said testator in contemplation of la°v a of his trustees under or by virtue of his will. »„d M M *"" ^'^^"''""'^■^ho are children of Mrs. Sturge, I cfsT'trr'?™' '""-""'' ^"''^■="™'^ "'"™ '° 0^ -""'o Z^T, , , """ '" ■■''P'-''»^"""i™« of the nieces as lega- tees fads) to share among the next of kin titled "i!!''tb~■''^'' f '\«r'^ ^"^''^ '^"g""" '='»'™^ to be -. nnnaied m,d thir.y-mreo pounds two shillings and eleven AND OtHEKS. lier Lucy Parker, Louisa Bagnell aro children of voral' tiefeiiduiits I, deceased, clnim liet^es and repre- ipectively under nikiuH, Martin I. Kdward Biimcv >e decided tliut ) Saruli jMayniinl md jjer husband the said Charles r, togoth(}r with Ikins, Martin ]. !dward Uinnoy, 5 said property vl parts to bo •; they and they of relationship ig-ent claimants on I he ground > happening of and the event ry Sedlev JJa->-- ilike unproved nder the only [jouisa Bagnell ition of law at •s respects tlie y in the hands r arrs. Stnrge, to be entitled icces as lega- lims to be en- housand one 1 and eleven TRINITY TERM, 186G. 281 pence as the father of the sai.l children by the said Louisa Bagnell, his wife, and that on failure of such right, then ho anu the said Elizabeth Horn claim under the said will of tho said Louisa Bagnell made as aforesaid, to be entitled to tho several sums of six hundred and four hundred pounds be- qneathed to them respectively by the said Louisa Bagnell ." and by her last will and testament hereinbefore in part set fortli. ^ Fifthly-^ the defci^..M«, except the said [Tenry Sedlev Bagnell and Elizabeth Bm u, deny tho respective claims of th'o sau Henry Sedloy Bagnell and Elizabeth Horn under the will ot the said Louisa Bagnell deceased, insisting that as she had lawful issue she was not empowered by the testator to mako a;nl disposing of any part of his property bequeathed by i.n to the plaintiffs, the trustees, and that, therefore, the pro- bate of her said will granted to the said Henry Sedley Ba-niell mnst be annulled and avoided in duo course of law. The suit was afi equitable one brought by the executors and trustees of the testator against twenty-seven persons, being «I the parties believed to be interested in his will or his estate. All these persons claimed as being in one or other of tlio classes set out above. The case was argued during last Michaelmas Term, by counsel represcmting the various classes of defendants before y>ung 0. J Dudd J., and DesBarres J., Johnston E. J., being absent, and Will.-ins, J. being one of the defendants. Smilh, Q. a for the plaintiffs simply read the case without argument, stating that the plaintiffs had a right to ask tho opinion of the Court. nr' ^ow?^ ^'"' *''^ "^-^^ °^ ^''" '""^^''^^ to Underwood v. ^mcj ol Lng. Law and Eq. Rep. 293, and to the language of VVightman, J. m that case (p. 297) where he states that the next km as to personalty stands in the same position as the heir a^ law as to realty, and that tho person claiming against him mnst make out his entire title. He also read the following extract from the judgment of Lord Crauworth in the same case, (p .^01) : - The real ground to proceed on is. that it cannot be proved which died first ; they both probably died 282 HARTSHORNE and Another v. WILEINS and Others. within a few seconds of each other, but Avhich died first it is impossible to say. That being so, what is the result? Win- here ,« a will made in which, in one state of circumstance; ' namely, ,f the wife died in the husband's life time, the propor' ty IS given away. It is not proved that that state of circum- stances existed, and in no other state of circumstances is it given away. Then it is not given away al all. Therefore it 18 to be taken as upon an intestacy, and must be distributed among the next of kin." He also referred to Wing v. Angrave (House of Lords) 30 Law Jour. Rep. N. S. 65, and several other cases, and contended that the whole fund, subject to the annuity to Elizabeth Horn, must go to the next of kin. McCully, Q. a, for all the nieces (except Lucy Parker and Mary Whittey) contended that the title of the nieces to the whole fund did not depend on the survivorship of ..either Louisa Bagnell or of her c\n\^von, that they (the nieces) wore entitled under the will even if she and her children all died at the same moment. The words of the testator on which the right of the nieces under the will defended were, should his said daughter Louisa, " die without leaving any lawful issue " and she did so die if she and her children all perished at th'e same mstant. The words were not '•' die without issue," but die without leaving issue." Shannon Q. C, for Lucy Parker (since deceased) and Marv Whittey, referred to 1 Taylor on Evidence, 179 ; 2 KenVs Com. i)»ii-585, and other authorities. W. A. D Morse, appeared on behalf of the children of Mrs Sturge and Mrs. Moprsom, deceased, being the grand-childron of Mrs Wilkins, and contended that they were not excluded by the last clause of the third section of Chapter 115 of the Revised Statutes, second series (p. 747, third series) from participation in the fund. The Solicitor Generator H. S. Bagnell, contended that to adopt Mr. Gray's view would obviously entirely defeat the intention of the testator. He also argued that if Louisa Bagnell s children survived her, then H. S. Bagnell would AND Others. ch died first it h e result? Wliv f circumatancus, time, the propor- ; state of circum- rcuiTistaiJoos is it ill. Therefore it l po. shed a the same niomenl, aiid consequeiilly neither of tho othei. Tai/lorM. m a ,iote that by the Maho.netan law of India when .•elat.oi.s thus perish together it is to be pre,u,„od that they all died at the same moment. This principle, however, Is by no means universally re- ceived^ The Code Civil of Prance a,.d that of Loui.-a..:, bo.h of which are Cited in tho note to the Amei-ican edition of 1 Yorcug & Collyer, 12G, take into accouiit the ci.-cum- stances ol each c.tse; and so late as the year 1842 in SlVick V. Hooih, i-epo,-ted as above (but which Mr. Taylor says can no oi.ger be i-elied oii as an authority) Vice Chaiicelloi- Bnico decla,-ed that by the law of Engla.id, evidence of health, stre.igth, age, or other circumstances, may be given i,. cases of this nature tending to the judicial presumption that one party survived the other. According to 2 Kenfs Com , 435, 9th edition, the English law iKts hitherto waived the question, and' perhaps prudently abai^doned as delusive all those ingenious and reLed dis- t nctions which have been raised on the vexed subject by the civilians. The latter draw their conclusions f.-om a ui mu lou8 presumption restiiig on the dubious point which of the parties at the time, under the difference of age or sex, or of vigor and maturity of body, and quickness and presence of mind, was the most competent to baffle and retard tho approaches of death. It is remarkable that neither in the 9tli nor lOth edition of Kent, both published after the decision of Underwood y. Wing, axdOtiikus, TRINITY TERM, 18G6 285 is tliat case referred to, though it shows tliat thi3 vexed qnes- Hon IS no longer waived, as stated in the text, bv the EnHish law. ' ^ As matters of judicial curiosity I have looked at all tho earlier cases, and will cite two or three of them as affording us instructive or curious illustrations. Swinhurne puts tho case of a testator and legatee being drowned in the same ship, or both being struck to death by the fall of a house, in which case, ho lays it down that as they both died at tiio same time, the legacy is not duo, and conso- quently not transmissible to the executors or administrators of the legatee. In cases of this description, says Williams on Executors, 1084, the question of survivorship is by the law of England a question of evidence merely, and, in the absence of evidence, there is no rule or conclusion of law on the subject ; and as the onus of proof lies on the legatee's representatives, they cannot claim tho legacy unless they can produce positive evidence that he was tho survivor. In Broughton v. Randall, Cro. Eliz. 502 which was error of a judgment in Wales, in dower, the title of the femmo to recover dower was that the father and the son were joint tenants to them and the heirs of the son, and they were both hanged in one cart, but because the son, as was depo^sed by witnesses, survived, as appeared by some tokens, viz., his shaking his legs, his femme thereupon demanded dower, and upon the issue this matter was found for the demandant. In re Robert Murray 1 Curt. 596, decided in 1837, Murray, his wife and child, being below in the cabin of a vessel which struck the land and went to pieces, were drowned. Murray left a will in which he had bequeathed the whole of his pro- perty to his wife. The Court granted administration with the will annexed to the next of kin of the husband as dead, a widower j there being nothing to show that the wife survived and the next of kin of the wife consenting. In Satterthwaite v. Powell, 1 Curt. 705, decided in 1838 and closely resembling the present case, Ann Armett sailed in 1819 with Major Armett, her husband, and four children on a VOVaP"fi frnm Plrlutol t'> PorV ^p " r">"^Q+ ,.,i.:^t. i.. • the channel, and every one on board perished. Counsel for 286 HARTSHORNE and Another v. WILKIN3 and OrnEiw. the administrator of tho husband insisted that whore husband and w.fo perished by the same accident, the ordinary pre- fiumpt.on of law is that the husband survived, and reh-cd on a dictum of Sir John Nicholl, 2 Phil 261-279. But Sir Hor bert Jennor said the point was settled "that the principle has been frequently acted on, that where a party dies pos- sessed of property, the right to that property passes to his next of km, unless it can be shown to have passed to another by survivorship. Here the nextof kin of the husband claims the property which was vested in his wife; that claim must be made out, it must be shown that the husband survived The property remains where it is found to be vested, unless there be evidence to show that it has been divested. The parties in this case mu3t be presumed to have died at the same time, and there being nothing to show that the husband Burvived the wife, the administration must pass to hernext 01 kin." These conflicting views would have imposed on us a deli- cate task, but for tho governing case of Underwood v. Winq There it was held that neither the will of the husband nor wife could prevail, and that the next of kin of the surviving daughter was entitled. The evidence clearly established that the husband and wife and their two eons were immersed together in the water, that they sunk at once and never appeared again. In this state of things the Master of the Kolls held It impossible to found any decision on the assurap- tion that either was the survivor, just as no such assumption can possibly be entertained in the case in hand. When the case came up to the Couit of Chancery, Mr. Justice Wightman observed, « the next of kin stands as to personalty, in the same positicm as the heir at law as to realty; and the person claiming against him must make out his entire title. In the absence of any effectual disposition ot the beneficial interest in the personalty, the next of kin 18 entitled to it, and the person seeking to dispossess him of It 18 bound to prove a perfect title and to rebut iho prima facte title of the next of kin." "As to the point of survivor- ship it was argued with great ability, and the same cases and authorities were oited before ua as before the Master of the Rolls. la the Ffenca code the rui© of survivorship is made AND OrnKRS. t whore husbanrl he ordinary pre. d, and reh'cd on >. But Sir Her. at the principle party dies pos. •ty passes to his massed to another ) husband claims that chiim must sband survived. )e vested, unless divested. The ivo died at the bat the husband ass to her next jd on us a deli- irwood V. Wing, he husband nor >f the surviving estabh'shed that were immersed nee and never Master of the on the assurap- Lich assumption Chancery, Mr. n stands as to • at law as to must make out ual disposition le next of kin dispossess him jbut the^^n'ma ntof survivor- lame cases and Master of the rship is made TRINITY TEKM, 1866, 287 a matter of positive reguUition and ennctment, varying ncoording to the ago and sex of persons dying in the same shipwreck ; but in our law it is not so. The question of survivorship is the subject of evidence to be produced before the tribunal 'vhich is to decide upon it, and which is to de- termine it a^ i., determines any othor fact." " Wo may guess or imagine, or fancy ; but the hiw of England, requires evi- dence, and we are of opinion that there is no evidence upon which wo can give a judicial opinion that either of the four persons survived the other." So also the Lord Chancellor. " Having turned the matter much over in my mind," (this is so late" we must observe as the year 1855) " 1 am perfectly persuaded," he says, " that exactly the same principle is applicable to the case of per- sonal as of real estate. If a person dies possessed of personal estate, ^nma/«cte the next of kin will be entitled to it; and their right will only be displaced by some person coming forward and showing a valid and eflFectual disposition taking it away from them." " As to the survivorship, the real ground to proceed on is that it cannot be proved whether the husband or wife died first: they both probably died within a few seconds of each other, but which died first it is impossible to say. That being so, what is the result? Why here is a will made, in which in one state of circumstances, namely, that if the wife died in the husband's lifetime (and vice versa) the property is given away. It is not proved that that state of circumstances existed ; and in no other state of circumstan- ces is it given away. Then it is not given away at all. Therefore it is to be taken as upon an intestacy, and must bo distributed amongst '!.e next of kin." These opinions were affirmed by Lord Campbell in the House of Lords, though he differed from his brethren on another point, as well as by Lords Wensleydale and Chelmsford. The latter observed that « if Mrs. Underwood had foreseen the extraordinary contingency which actually occurred, no doubt she would have provided for it, but she had not. The House might speculate with great probability, if not with certainty, as to what the form of bequest would have been, if the pos- gihillfv of ""'•I* «!.T» Arrtxnk nf\\nA l.a«^^^.J 1 1 I . « to the minds of Mr. and Mrs. Underwood j but to act on such .1 288 nAUTSIIORNE ^Nn Anot„e» .. WII.KINS .^■^ 0.„n„,. '■pccniution wonW 1,„ .,„ ,„,iko tl,o will hdo-,1- „ i,„ tcstat,,,- a profo,-cn<:o .,C l,ia nieces to hi, other next „f l oftec „al ,„ ..^y ovo,„. 1J,„ ,ho words .re not th re „ T H 18 not for ua to supply them. ' Eovorting then to ti,„ throe qnos.ions, which I have „|r,.a,h- ucc,nc ly stated, the Cn,,!, firs, of „il, cannot be assit the father a, the heir ut law of the ohihlre,, h™, „e , the daughter, and there „ no proof thai any of the chiWr,., wore so l,vu,g, that is, that any of the chihh^n s viv danghter, and the daughter having been illegitin.a e , o her clnldren depended entirely „„ the will. nI e, tl.o fund n,, he second place, be assigne,! to the niece,, o i c ropresentafves of the nieces, beeanso their title dependc on the danghter dying without leaving anv lawful issue a, there .s no proof whether she did or did not so die tb.'t wl^thor her children did or did net survive her ' Ihese positions are doubtless very subtle; they seem to caTn, eTtw'^ i»«o.ibility and precisio,', of ^atle,: cal rules, than of a science wh.ch deals with the larger qucs- t.ons of oth.cs. But still as we have seen, they !ro ful ■ supported by the later decisions of the Eng ish Conr s .-.th reference thereto I „,ay add that so rfeently s i,', month of December last, the most important of "^^hem w recogr -.ed and acted on by Vice Chancellor Wood, in & wX tr"' ^™'V'' "-'^ Times Reports, K.'s. 5«: l^astly The argument m support of the daughter's will SoVtert'"'-' ° ""''°""°- ''" "^' "' "^-'y ^o '«9Uoa ^1000 sterling in one event, that is, in the words of tho testator, " in case she have no lawful issue " It was contended that her having issue which might die ia an hour could not take away he, power of devising. Why no Tto birth of a lawfnl child ipeo /ado created now rights and interests. The immediate death of that child o the still mor» extraordinary event which happened, we en in the contemplation of the testator, and h, L,. .u:^!" ._ ! rS AND OtiiEUS. Hpoak u langna-ro tioii wliich ia oftei, oariri-,' on tlio caso le will to show tljo othor iioxt of kin, 3 that preferonco not tlioro and it ich I have alroady ot bo assigned to fori, hocaiise 8u«-|| at tlio decoase of ly of tlio ciiildron reii survived the gitimate, the title •'ill. Neither car the nieces, or the r title depended awful issue, and t so die, that is, ler. » ; they seem to m of mathoiuati- the larger qucs- I, thoy are fully jlish Courts, and Jcently as in the it of thera was )r Wood, in He ports, :;. S. 541. daughter's will Jrty to bequeath words of the ch might die in levising. Why to created new f that child, or eued, were not tiiS puwur ui IRINITr TERM, 18CC. ojS doling l„ Uk claugl.ier witl> a li,„i,,ui„„ which put an o„ ship the Chief Justice, but it has unhappily b««n miBlaid. iwn OTiiEns. tutives of tliuriu linvo boon citoil, ISO of Lords, wo ling any opinion intl espociuliy of ) boon hoard by is point tbo case icoasod and tiiiio and myst'lf will lurly day during JO wo must bo irwood y. Wing, English law any inces, as to tlio 10 are doBtroyod of the fact, and )rt3 tho aiQriua- itator and their entitle them to )3eph Creightoii iasiio, and tliut e three childron 3, for some short when the ship id foundered at within a short ther lived a few ; fact cannot bo IS who were oa have survived, laid down ia I nieces and tbe >••>•! V ur.der the • ■'. , ^f then TRINITY TERM, mO. 291 the nioco3 a3 a class of claimants cannot establish thoir ri^ht to tho trust property under t!io will of Joseph Crcighton, the next question is whether the claim of Ilonry S. Bagnoll as hoir to his childron ro.ts on any surer or bettor foundation. It lies on him to show that tho child survived thoir moti ren or some one of them ith that of bis lord- leir mother, and, as that fact is under tho ciTr.mv stances utterly incapable of proof, it Mows that his cl -> .^ heir to his children like that of tho niecos must for that reason also fail, nor c,.!. the devise to hi'm bv his wife of XGOO storlmg from and out of tho trust property ( .ko effoct, since .here can be no doubt that having h,ul childron, alio had no power or authority under the will of Joseph Creighton to make such a devise. That devise, then, as woll as the devise to Ehsiabcth Horn of XlOO sterling out of the trust money can have no legal operation, and both, as it appears to me, must on thut -round be rejected. Seeing that neither tho clam.:i oi the ui. ces to the trust property as devisees under the v,',ll of Joseph Creighton, nor tho claim of Henry S. Bag. vh'I thereto as heir to his children, nor his claim or that of Liizabeth Horn as to the sums bequeathed to them respec- tively therefrom by Louisa Bagnell can prevail, it remains to inquire to whom this trust property legally belongs and in what manner it is to be appropriated and applied. It was contended at the argument on the part of tho next of kin that under the circumstances of this case, Joseph Creighton, as to the principal or trust money remaining in the hands of the plaintiffi up to the event of Louisa Bagnell's death must be presumed in law to have died intestate, and that dying intestate his next of kin became entitled thereto. That position is supported by the case of Underwood v, Wing in which the Lord Chancellor said that " where a person dies' seized in fee of real estate ^nmo facie his heir at law is to succeed, and he can only be deprived of his right to succeed to it by some devisee coming forward, showing that a valid will was made, valid in point of form and effectual in point of substance in displacing his rights. If that is not shown the I heir at la^v is entitled." " The same principle (he added) is ap- ,!;cable to the case of personal estate. If a person dies posses- Bod of personal estate, prima facie the next of kin will be entitled to it j and their right will only be displaced by some H, 292 HARTSHORNE and Another v. WILKINS and Others. person coming forward and showing a valid and effectual dis- position taking it away from them." In the present case although there is a will, valid it is true in point of form, yet as the devisee, Louisa Bagnell, and her children are all dead, and the nieces cannot take the trust property under it as devisees after her death, in consequence of their inability to prove that she survived her children, there is consequently no effectual disposition of the property displacing the rights of the next of kin; and, therefore, the testator, Joseph Creighton, must be considered as having died intestate as to all his undisposed of property ; and I agree that the next of kin to the testator are the parties who are entitled to take that trust property subject to the annuity to Elizabeth Horn for her natural life, but whether those who were the next of kin at the time of the deatli of Louisa Bagnell, or those who wore the next of kin at the timo of the death of the testator, are the persons who are legally entitled to take the ^aid trust funds is a question upon which I am not at present prepared to give any opinion. Our attention was not directed to that point at the argument, and as it is one that ought to be well considered, I concur with the learned Chief Justice and my brother Dodd, that there ought to bo a re-argument upon that point. Order accordingly. '^^ Attorney for plaintiffs, Smith, Q. C. Attorney for Hon. L. M. Wilkins, M. L Wilkins, and C. T. Wilkins, Wilkins, Q. 0. Attorney for T. Maynard and wife, McOully, Q. C. Attorney for S. Binney, R. Binney, C. W. Parker, I. S. Whittey and wife, Shannon, Q. 0. Attorney for E. Binney, B. O. Oray. Attorney for Lucy Kearney, James. Attorney for H. S. Bagnell, Solicitor General. Attorney for grandchildrpr of Mrs. Wilkins and parties claiming through them, W. A. D. Morse. John Creighton, Q. C., appeared in person. •Johnston, E. J. was absent from the Court at the time of the argument in QoniflnaenGO nf hnvincr hnnn nriainnllir rotalnol !n tha />niiqn AND Others. TRINITY TERM, 1866, 293 and effectual dis- ;he present caso nt of form, yet as are all dead, and ler it as devisees ity to prove that mtly no effectual ghts of the next eighton, must be lis undisposed of > the testator are property subject natural life, but the time of the le next of kin at persons who are a question upon ive any opinion, it the argument, 3d, I concur with )odd, that there ' accordingly* Ikins, and C. T. J. Parker, I. S. 'I ns and parties of the argument in FREEMAN and Others v. ALLEN. July 17, 18CG. Mere prior possession is sufficient to maintain ejectment against a wrong doer. Suoh posst'ssion, however, must be clear and unequivocal. Such possession must be open, notorions, exclusive, and well dt fined, and interfered with by defendant, by force or fraud. Per Wiiliins, J. There not being evidence of such possession on the part of the plaintiffs, or him under whom Ihey claimed, (the mere running of two side lines, the removal of a fence around the land which was wild and nncnltivatod, the use of a way over it for a cow- path by a third party with the peimissicn of the plaintiffs' devisor, and a continuous claim of title being held not to be sufficient), and they having failed to prove a documentary title, the Court, the case having been twice tried with the same result, refused ' to st-t aside a second verdict for the defendant, though he showed no title whatever,— Dodd, J., dissenting. Smith V, McKenzie, James' Rep. 223, affirmed. Ejectment for lands in Queen's County, tried before Des- Barres, J., iu Liverpool in May, 1865, and verdict for defen- dant. A rule nisi having been obtained to set the verdict aside, it was argued in Michtelmas Term last by the Solicitor General for the plaintiffs, and Smith, Q. 0. for the defendant. All the material facts are sufficiently set out in the judg- ments. The Judges being divided in opinion now delivered judg- ment seriatim. Young, C. J. This ejectment was brought for a small piece of land about an acre in extent, occupied by the defendant since the year 1859, being a part of what is known as the Gore lot at Liverpool. The plaintiffs claim title, first of all, under a deed to the late Joseph Freeman, dated in 1815, of a five acre lot, described as laid out at the end of the Gore and bounded Easterly by the common, and my brother DesBarrea who tried the cause in May, 1865, left it to the jury to say, whether the land in dispute formed a part of that lot. If it did the plaintiffs of course were entitled to a verdict, but the jury found for the defendant, as the jury had found on a iOrmer trial, anu on this head I think there is abundant evi- dence to justify the finding. The stone waH which was recog- 294 FREEMAN and Otiieiw v. ALLEN. w.o.n..;:irr:;::;r;;::;r ° "--"■■"'"^ 3-oluotanco in .1,,. r . \ •>ccop(ocl with aomo ^''7""* ^>"''"''. 31, a„,l ,1,0 noto .... 2 ^.^LelflM fr ' sjK)Ifeii of ns (lniil,ff„i .iT>i , - *^'««««ers, 111, It 18 " tliat mere p ii 1 " „ r'" ''"'" *'"'"«'"'" ™>'^ «»»«>», nant and ho ctes the case of Doe c. d. Crisp v. &,rte,. •' T tl uv„ ',T ' "'», •'»«"■■"" •— es not depend g possession— d and liold tlio joctmont. As •efore a wrong ssion is primd appearing in :ards it as ovi- unded on this es where the of the locus, ?« V. Bijeball, ) him of the t having for- In this case on for TRINITY TERM. 18G6. ^5 as there was also in a very recent case which I shall presently 3ite. There was also a forcil)lo taking possession, but whoro Clin the ddFeronoo l,o though the prior possession were only for a month, if it ho the sort of possession that gives the right; and whore also the difTorenco, whether the defendant enters peacef.dly or forcibly, if he enters on a possession which he has no right to disturb. The cases, as it appears to me, are not so clear on those points as ono would have expected, and turn upon distinctions which do not at all affect the main pritusiplc. In Jackson v. Hazen, 2 Johns. 22, the plaintiff had a peace- able possession of throe years which was held enough as against a wrong doer. The Court said: "Had the .lefendant come into possess,,),, of the p,-omises peaceablvr, a question would then have been prosente.l whether the plaintiff was not bound to show a possession for twenty years, but the case did not turn upon that point, for the defendant must be considered as a trespasser. Here the doctrine is stated somewhat obscurely as if ic rested on the actual or presumptive owner- ship in fee, and the same remark may be applied to the case of Doe e. d. Carter v. Barnard, 13 Q. B. 945. It is stated more vividly, and as I think more accurately, in bmith V. LorUlard, 10 Johns. 338 where it was held that a *;nor possession under a claim of right, and not voluntarily abandoned, would prevail over a subsequent possession of less than 20 years. Hut the rule Avas laid down with the qualifi^ cation that no other evidence of title appeared on either side, that IS, that the evidence did not show a right of possession. or title, as in some of the cases, out of the plaintiff, and that the subsequent possession of the defendant was acquired by more entry without ^\\y lawful right. The recent case I have spoke^'n of was an action of eject- ment decided in the Queen's Bench, Asher v. WhUlock 13 L T. Rep. N. S. 254, (S. C. 1 Law Reports Q. B. 1) where' Cock*. burn, C. J., said : "It is contended that possession once acquired as against the rightful owner (that is by a wrong doer) does not operate to keep out other wrong doers. That seems ta- me to be a very dangerous proposition. It certainly appeans. to me that possession is a good title against all the world escept against the rightful owner. The cases show that evea 29^ FREEMAN AND Others v. ALLEN. finding the door of a hT ' °''' »f » porso,,, wl,„, mril/absent goes Land ok"''^"; ""'' "" """"P''^'' '^"P"' ground that'tl^oeeup ItfTbe "'"" P°»'^-'™. "" *'- roferenoe to so,ne tZZ, I'tT'"' -1 7""^'"' "■'"' eould not be maintained ?T,, , '""^ """ "" 'x^"'"" founded on tbeS If „ '"'"'' ''"' "^ <""''='»"' i» to retain possesll" ^'"^' ""°' '^''"^P' "^ "8'"^"' "wuer, a so;,=d';:!:j;;r't,irr r, '''- "-"' «- ■■'"^"■•^""^ -^ month'8 labour 11?", ' . °^, ^'■°"" '"'"'-''» ""^P""''^ » though „„L:;„;;ref„::f„,r'::::i:r''^ t^' -"""' ter,havinKaslittlot;tl„ , """ f ""»9l> ""or, anotheraquat- possession Th fi 1 ' """'^ °" "'" '™'' »'' *'^'"bs the\>st could ma ntain resnl r'^'T.,"'"" """' ^'■'"■»»'-oe, ejectment, wMoh is on V /"" "" "''°"^- *'"■ "''^ "»' »'- Tl« ,,„ , ^ * possessory action in another form ■> itcanLb^Itakn %rr"'°''r'' """ "'"'^^'i "-' t-o enquiry, a pLtt^ff r! wroruTustTf^c'"" '"'' ^'^' "' cally show it It mn«f r.Ju r ^ ''''"'*^^ "nequivo- change the ossessTu^:!':;,. XL'**;' P '' '''''"' '» to turn the defendant Z Tbe!«t M 11 * r"'' "'"' ^"^ . On thispoint I have fallen i;^^: I o':: "T '"'"• in the American case of Jackson VTf 1, , '"'"'' Johns. 388. There the r ,.^7 . .' ^'^''^ ^- ^i"™- ^ and included it „ deeds of n 7.- ""''' *"'"' °" "" '''™' farmer who occuofed th» ^ '"" *""'"^' 'h'=">^«l>'es. One he then ;i ted "^^e possLrid" """'f ^^^ '''" '"'' entry of the defenda„rthe ^ei, Ze 1 ' "" ''" "" uninclosed. But Kent C % ^Tl . ^" ™'=*"' """i they inoluded p'ayt ; of ;;;:;'a^;' "::,V '""''' "'°"«' rotr'<^^rtdTeT••'"4-- " wi uue, and the claim was defGafPf^ ti.„ ^ r- '"--■'-^ V «wif/j V. mcKenzie, James' LEN. ood titio as against of a person, who, le occupier tempo' possession, on the )r is wrongful witli said that an action iw of disseisin is he rightful owner, an intelligible and y stated, a posses- > effect. fc pretence of title nd — he expends a -lie takes actual ar, anotliersquat- 1 disturbs the first se circumstances and why not also in another form? of clear and dis- ^nd marked that • the very gist of course unequivo- he is seeking to t Court and jury lies upon him. » case. It arose low V. Mi/ei^s, 3 ces on the locus, emselves. One ^ged their title, at time till the eft vacant and 3 facts, though ions, were not y have been of • The sort of 18 also enquired •■Kenzie, James' TRINITY TERM, 186a. 297 Rep 228 where the jury found in favor of a prior possession hyihe plaintiffs, and their father under whom they claim d and he majority of the Court refused to disturb the ve d'ct Mr. Justice DesBarres, who tried the case, said (p 233 A' ;s enoug that the fath. nad such a possesion s'wfrranted the jury to presume a title in him as against the delnd nt who showed no title." ueicnaant In the present case the jury have found a second verdict against the possession of the plaintiffs, though the charge wa - their favor, and, on the whole evidence, I think he fZ were in the right; at all events there is no si'icli prepo r ncT eLch-: ::•::: ' '''''' r '' '''''^'^ the've^dictir .Mere claim of itle as we have seen is not enough and I look in vain in this case for any actual possession. The run "rrli rth'eV";"^'^^ '''' -^^ '^ ^^- «'^^ "---"y vere run on the first survey, and even admitting that these hnes, with Waterloo street as the base, described fhe whole of t h^Gore, the south line was not blazed," and the witnes say^ We marked a stone at the road and that was all we did » The second survey was in 1860, after the defendant had gone nev r : : f "' T °' ''' '"""^"- ™ ^'^^ ^^e ^oc Jhad oned at Mr";' ''T "^"" '^^^^^ -"^ in and aban- ated but lay waste for 40 years up to the time the defendant took possession. The only act of ownership of any aval wa he use of the cow path by permission of Freeman^ But tits ;^^iro;tLr;r^^ DODD J. I regret that I differ from the majority of the Court. I ,g,,,a „ij^ ,^^^ ._,_ ^^^ ^^^^^^ judgmonU giv a n th,s same case, and I do not think that the ^facta proved on the second tnal vary the position. I think that there wa, a suffio.ent prior possession in the plaintiffs to enable them to derndTntTar"' ''^''"' ""''' "'''^''''- '""' -<"' «-« DesBakres, J. The present action of ejectment was 298 FREEMAN and Others v. ALLEN. the plaintiffs clvim tnfj '^"'^ ' ^"^' secondly, the plaintiffs have f.il,..) .„ . u, , , "'^ "P'"'°" "">' tl.o land in di'Z a d ,1 ,, if H '' " *'='™^'""^y «"« to at all, it „,u.t b'o „' e ' t „ f? '" ^"""^^ '" — ^ in Snow P P,„„ ground of a pnor possession either man. On this noTnt TL ^-^ ^ i ^""'"' *° '^^^^P'^ Free- .EN. >, who died whilo been prosecuted ves. They claim 'le will of Snow P. his father, Joseph cuted a deed as ;, comprehending, 0? and, secondly, ell as a documen- I twice tried, and >r the defendant. St trial, to which of opinion that imentary title to itled to recover ossession either Veeinan, to' that olJins to Joseph 1 as being part •ince Snow, and J lying between ilock B. ''J that this lot Liverpool, and !res more than le defendant it nore than five or towards the )f a stone wall *forth-East line d of the Goro do by Benjijah ine of the lot, I of the defen- ce to the East »s no part of Joseph Free- ow, a witness lined on tho TRINITY TERM, 1866, 299 former trial, is very important, inasmuch as it shows as I wall to Wate loo street ,s in fact the true North East line of ho five acre lot, and that the land in possession of tl e d fen dant IS outside of that lot. He states that the land dispute was wdd and uncultivated when he first knew it, ad Zt s.on of ,1 that he always considered it to be part of the common, that he calls the end of the Gore lot at a lh,e ru nl from the hne of stone wall to the East of No. 2 to W te" oo street, from the fact that Joseph Freeman, the then owner wanted to h.re to him the five acre lot/cailed the Go e ri-mt. >"' '"■^^^'■"^^" ^'^^''^ ^^^^'-^'^ then potted let ast , "' r'"*"';^/"" '''' '''^' -^'J ^° ^^'terloo troet, as the boundary of his five acre lot, that there was at ha me part o a fence running across the Gore lot to Waterloo street, the marks of w1m,.|, !,« l, . since that. ''° '"*' '"^ "'">' J''^'"- TI,o testimony of this witness as to the existence of tlie fence, po,nted out by Joseph Freeman as the bou Zy of s .eacrelot ,s corroborated by Whitman Preeman, a wit , rtich Joseph Freeman erected on the North-East line of the Gore, was a continuation of the line of stone wall, made 40 iZtZ::- "" ""TIT'' "■"« "' ^°- '■" And it: ta lie, ,7"^' r'"' '^"™^'' ' "''"^'^ '" "- dof ndant who lured the five acre lot from Snow P. Freeman for four or remans of the old fence, some of the posts of which were t at he d.reo ed Carey to follow the posts a, the bounda y of tlie lot m making the fence. ^ «»il\r°'', '-f ""' ".' *"' •'^'■"^ *''^«'' ■■' """"o' be e n^nds of the jury that they had a documentary title to the whether Ir^^"'"""' ^f"^ '° '■''"^''' "■« »^^' t iiiidfl, id, a verdict iu furor ellher not taken or ijch i» case the rcj^-n always presumed, lid, aIthoii(;h thore ii of the defendant sub. ' Wfvs a plcn of iidants defeiKlcd Hood, in June, in tho Cfiso was d denied by the la raado in 18-lG, n the defendant defendant Alex- ren, occupy and bund and it luid jr which it was rticularity by a impugned. He man. Ho was )erty, being the andum of what lis Crown lease, ^htors might be ;u3 and one to man in Gaelic, sale. All the I witnessed all '. All the sons Dns-in-law were onths "after. I t the deed to defendants live . None of the TRINITY TERM, 186C. 305 sensor dan^-htors, or of tho eons in-law wore called on the trial. The real plain tiff in the suit was Mr. Lawrence, tho sheriff of InvernesH, David Smith, tho other plaintiff, being his son- in-hnv, and having taken a conveyance merely for his benefit. This was admitted by tho sheriff at tho trial. Tho circum- stances under which tho shorifi' became connected with the property wore as followH. Peter Smith, tho husband of tho one defendant, and father of the other, I ving become ombar- raa.sed in his circumstances, three judgments were entered apiinst him, tho first by Ronald McLollan, the second by Alexander Cumpbell, and the third by Neil JIcLean. A dale was had in duo course -uidor executions on tho second and third of those judgments, when Noil McLean, plaintiff in tho third suit, bade in for himself, and tho sherilf at his request conveyed the land to Alexander Rankino for tho consideration money of X120. Up to this, timo tho sheriff had no interest whatever in tho land, but Rankino, having also become embar- rassed, was taken in execution and escaped without any fault on the part of tho sheriff, whereupon he was threatened with an action by tho execution creditor and uncertain of his liabilities paid tho amount, Rankino at tho same time conveying to him tho Smith farm for his indemnification. McLellan's first judgment, however, standing out, Lawrence to protect himself obtained an assignment of tho judgment from McLellan for £25, 2l8t Jan, 18G2, An execution was thereupon issued 31st January, and delivered to tho sheriff 3rd February, 1862, on which a sale was had. Angus McDonald bade in the property for David Smith, at tho sheriff's request, and the deed was made to Smith. The sheriff in his evidence said, " I had an understanding with David Smith about tho lot. I had an interest in the land. I had a deed oi it before, and asked David Smith to bid it in. He is only a nominal party, but he stands tho owner on record. I was obliged to buy it in to protect myself." The learned Chief Justice, in his charge to the Jury, stated that, although he was inclined, iu any case where a sheriff had bought without the permission or against the interest of the execution creditor, to uphold the doctrino that a sheriff could lint. nnrnlinoA nurl }^n^l'l Inr^A /^:../^»4.i.. -»- :„j: ii_ i-.i i 20 306 SMITH AND Another v. SMITH and Another. was selling as a public officer under execution, that the doc- 1 trine did not apply in this case, as tiie creditor, who had sued I out the execution, had assigned his jndgraent to the siioriil' accepting £25 in full. His lordship also stated in substance that as the sheriff was not a volunteer in the matter, and imd acted in perfect good faith throughout, he did not consider there was any thing either morally or legally wrong iu]iiij| proceedings. This view, if correct, his lordship added reduced the defence to an inquiry into the fact of a deed hav- ing passed from Angus the father to his son Peter, and the l alleged insufficiency of the secondary proof thereof. Hi J lordship considered this deed sufficiently proved, and told the | jury so. The jury, however, after being out for two. hours, found a | verdict for the defendants. A rule nisi having been granted to set the verdict aside, it I was argued during last Michjelmas Term. Blanchard, Q. C, in support of the rule. The jury have undertaken to disbelieve uncontradicted testimony with regard to the deed from old Angus to his son Peter, and their ver- dict is therefore perverse. The secondary evidence of tlie| deed was sufficient and was rightfully received. IIQ.B. 642' Starkie on Evidence, 496 ; Z A. & E. 46 ; 7 Excli. 639 ; 6 C. & I P. 206 ; 3 8cotV8 N. R., bll. Wbethei- or not the objection should have been taken at the trial. 8 Ad. <& Ell. 314 ; 1 M.\ dt G. 481. Attorney General contra. The credibility of the witnesses was a question for the jury. They had a right to disbelieve McLeod. He was reckless and interested. A doubt was cast upon his testimony. He was a judgment creditor of Peter. The sheriff being the seller cannot be the buyer. His title is under a subsequent judgment, and his levy, therefore, bad. Rev. Statutes, ch. 115, sec. 5. JSugden on Estates, 189. McLean could not transfer his right as purchaser to Rankiuc. Rankine could not convey to Lawrence because the defen- dants were in adverse possession. iiOiiw ku i;iwuuvo tu« «v«u ly irywr was aoi givea w TRINITY TERM, 18C6. 307 iwo. hours, found a le verdict aside, it as mi givea iq Christy. She appeared and plealcd in person. Tho notice served svas to the attorney of Aloxuiider Smith. The notice to produce on tlio trial of October, 1862, did not extend to tho second trial. Christy did not appear in person till 1863. She ought to have been served. The deed to Smith, tho son-in-law of Lawrence, is bad in equity. 4: KenVs Com. 516. Solicitor General follows on the same side. No sheriff or I deputy-sliorilf can purchase directly or indirectly at a sale by I himself of goods or land. 2 Sa:o appears by the minutes that thoy wore cither not taken iiont c lerics) I'itlo. ' lie goii llO, are ISO far a jsabsisti jcloso w ICkse, [(jimlific Imortgaj Iqiient j Ifflioso i liflcumb Tho [being j IJefcnda objflctio third reasona' from, or But a to re vie wero waived at tho trial. Where this is the case, tho rc^iB''"""*'' " larity of notices to produce and matters of tho like kind imi always bo assumed. The rule is so laid down in Williams Wilcox, 8 A. cfe E. 314, and in Doe e. d. CJnld v. Roe, 1 El. Bl. 279, and is obviously a sound one. Tho plaintiffs' right of recovery, however, was assailed a tho trial upon other grounds, which probably had a mo™*"" ""* direct influcnco on tho verdict than any real or supposeB'^®*''*^'^" defect in the secondary evidence. (His lordship here rofeB''"^^^^ " red at length to tho circumstances detailed above, showinBo®'^*^''^' the connection of sheriff Lawrence with tho property). XoBP^'*'"^^' tho question is, can these proceedings be supported? Tl argument for tho defendants was that a sheriff can, in no i stance, directly or indirectly, purchase property which lie selling under execution, — that ho is to bo looked upon as trustee both for plaintiff and defendant, and as under all t disabilities of a trustee, and that the deeds from Rankino Lawrence and from Lawrence to Smith are equally ineiloctuB^*'*^ ''®> to give title. iprinciph The deeds to and from Rankine are attacked, upon tlj""* ^'6'' chap. 20 ^:03, the In Sti Ritchie, received seized ai . ... ..1 J 3 uiiuci a ouuuiiu illd ii..'l llea. "o wise affect the interests of a first -\ughtors or of tliB'''°'"^&'^o*^°- ^^^ ^^^'^^ ^ ^^ o^ opinion that a second or subse- 1 which he argnc«1"°"^ judgment creditor may sell the lands of the defendant, iction that a dtoB^''°^" interest will pass to the purchaser " subject to prior lin the verdict if jliocninbrances." lis lordship said: ■ '^'^^ *'^'*^' therefore, of Lawrence as derived from Rankiiio ;ainst the receptiofr'^S goo^ a"fl ^ general verdict having passed for the prevail, because S°^""^^"*^^' ^^° ^^ entitled to a new trial, independently of any lither not taken i''J'^^^'°" *° '*''' ^^^i'" under the deed to David Smith. 1 the case, the re J'""*^"^' indeed, that as this case has already been twice tried the like kind niu J^ ^^'^'"^^ ^'"''^^ w'" "^t bo necessary, and that the fair and own in IFi7?w?/i« 8^"^^°"'^'^'^ claims of Mr. Lawrence will be adjusted, and paid ild V. Roe 1 El. ■'^^°'"' °'' secured on the land. But as this may not be the issue, it seems advisable shortly or, was assailed J*" review the cases on tho main point of the responsibilities fbably had a moj*"^^ ^"^'y "^ ^ sheriff selling under execution. No English ' real or suppose|^^'''*^'°" °^ text-boo kdirectly bearing upon a sheriff or other ordship here rofoB'''^^^'* holding an execution was cited at the argument. On the od above, showiiiBs^"'^''^' principle, as it is laid down by all the text writers, property). XoBparticularly in Sugden on Vendors and Purchasers (14th edit.) 5 supported? TiB'^^'^P- 20, fol. 687, and in -4 KenVs Commentaries (9th edit.) jcriff can in no iE'^^' *''® J^Mthorities are numerous. .perty which lie I ^" Stratford v. Twynam, Jacob's Reports, 418, cited by Mr. )o looked upon asB^'^<^^''®> ^^^^ Master of the Rolls held, and this is now the ;1 as under all tlB''^°e'^*2d ^^"""^i t^^at the creditor may purchase the property Is from Rankino Bseizof^ f^»(^ sold under his execution. " This is quite different," equally ineHectul^*'*^ ''®> " fi'0"i t'lo t'ase «f trustees ; with respect to them tho principle is that the same person shall not be buyer and seller, ittackcd, upon tlH^"* ^lero the shorilT is the seller. (Tho premises sold wero . 1 __j xi,;flleasielin](1.^ Tn tlm mso <-^f flipi tfuofoo flior" >" « /»rv.-.fl:„«- ^c of tho prior ju.li'^"*)' ^°^ interest, and the Court, therefore, says that he shall 310 SMITH AND Another v. SMITH and Another. m not bo trusted to purchase unless he has divested liimself of his character of trustee. ^ ^ Here the party is proceeding adversely against his debtor, not by any private dealing biu by the public process of the law; and he k not the person who is to sell: that is the duty of the sheriff; and what injury can arise from the creditor attending at the sale and bidding?" These expressions certainly imply a disability in the shwiir to purchase for his own benefit,' just as an assignee, an agent a solicitor, or an auctioneer, is disqualified. It is possible' that other English authorities as to the position of a slieri.T may exist, but I have been unable to find them, uor, as I havo said, were any produced. It makes no difference in the application of tlie general principle, that the sale is a judicial one, by public auction or at a fair price, or that the purchase is made through tlie medium of a third party. ^ sale jier inte,yositam personam U equally discountenanced, and this with the other branches of the subject are elaborately discussed in Davoue v. Fanning, 2 Johns. Clianc. Rep. 252, and Michoud v. Glrod, 4 Howaid's U. iS. Rep. 503, 560. In a note to 4 Kent, already cited, the rule is applied bv Judge Tucker, In opposition to some tUcta iu the Virginia Courts, among other persons, to sheriffs, auctioneers, attorneys, and all persons in fiduciary characters, as incapable of pur- chasing the trust property at sales made by themselves, or under their authority and direction. And Hilliard in Lis Treatise on Sides, 80, cites a case from New Hampshire, in which it was held that a sheriff cannot legally purchase goods sold by himself, and that such purchase is equivalent to a con- version. We have applied the same .principle to inferior officers— the Revised Statutes, chap. 128, sec. 29, declaring that no constable shall, directly or indirectly, purchase any goods at any sale made by him under that chapter, and that every such purchase shall be absolutelv void. By the Revised Statutes of New YuVk, part 3, chap. 6, sec. 41, It is enacted that the sherift" or other officer, to whoui any execution .shall be directed, and the deputy of such sheriff or officer holding any execution and conducting any sale of property in pursuance thereof, shall not, directly or indirectly, purchase any property whatever, at any sale by virtue of such Another. livestcd himself of ■ty is proceed iijg rivate dealing but I is not the person ; and what injury iilo and bidding?" lity in the sherilf ssignee, an agent, 1- It is possible iition of a sherilT 3m, nor, as I havo 1 of the general public auction or lado through tlie itani personam u Diher branches of woue V. Fanning, irod, 4 fJowanl's lie is applied by in the Yirginiii •neers, attorneys, iicapable of pur- y themselves, or HilUard m his ^ Bainpshire, in purchase goods ivalent to a con- iplo to inferior c. 29, declaring Y, purchase any hapter, and thut ; 3, chap. 6, sec. er, to whom any of such sheriff ting any sale of iy or indirectly, ' virtue of such TRINITY TERM, 1866. 311 execution, and all purchases made by such sheriflF, officer, or deputy, or to his use, shall be void. To apply these rules in all their strictness to a sherifT in tins Province, where the Legislature has been silent, and to debar all our sheriffs from protecting their own interests, how- ever fairly or conscientiously they may have acted, would Bometimes be productive of great injustice. I should be dis- posed, for my part, to require the party seeking to avoid tlio sale, at all events to return the money that had been paid, as seems to have been done in analogous cases in 8 Vesey 351, and 8 Price. 172. In a Massachusetts case, Arnold v. Brown, 24 Pick. 89 where the defendants in an attachment writ Bold the goods' to the attaching officer at a fair price, and an action on the case was brought therefor against the sheriff, this sale was upheld by the Court. "The property," said tliey, "when attached, bears very little resemblance to a trust fund. The sheriff cannot be considered as sustaining the relation of agent or trustee, in any sense, to the defendant in the attach- nient. He is the officer of the law, and as such holds the property attached. It may be considered as in the custody of the law.'' " There may be something in the situation of tlie debtor, and the power of the officer, which should induce a close scrutiny into their dealings, to see that there is no Iraud or oppression in their contracts." "If the officer slioul.i obtain an unconscionable bargain from the nocessitiea of the debtor, the law would set it aside." Inquiries of mis character in the present state of the law, where the transaction is perfectly f\iir and no advantage has been taken, this Court would probably be inclined to enter "ito. But, still, as the general principle is unquestionably sound, and sheriffs conducting sales should have no interest nor the suspicion of any interest inconsistent with that of either plaintiff or defendant, it is safer for them to act as if they were wholly restrained from becoming purchasers, dn-e-tly or indirectly, at the sales which they conduct. In the present case, for the reasons I have assigned, I think that the verdict for the defendants should be set asidA and » new trial had. Bule absolute. 312 HALIBURTON and Otheks v. HALIBURTON. Attorney for plaintiffs, U. D. Tremain. Attorney for defendant, Alex. Smith, McDonnell. The other defendant, Christie Smith, appeared in person. HALIBURTON and Others v. HALIBURTON. July 19, 1866. A testator (J. P.) devised certain real and peraonal estate to trustees tor the benefit of his two chlldreD, (a dangbler aud a sod), in trust to p?y one moiety of the rents, issues, and profits of the leal estate, and of the iaieiest of the personnlty to nnrl for the benefit of bis daughter duiiog her lil?, and " upon the decease of his said daughter, he gave and iKquealhtd' the said moieiy of his real «nd personal tsiate in Nova Scotia uoto the heirs of her body lawfuUy begotten forever, share and share alike," He also devised the other moiety of hig real and personal estate in like manner to and for the benefit of his son during his life, and " upon the decease of his said son, he gave and bequeathed the said remaining moiety of his re.U and personal estate in Nova Scolia unto the heirs of his body lawfully to be b<-gotten forever, share and share alike." He further provided that " in the event of the death of either of his said children without lawful heirs as aforesaid then the survivor to have the whole of the rents, issues, and profiis, during her or his life, and at her or his decease to descend to the lawful heirs of her or his body lawfully to be begotten as Bforeaaid." There was also a devise over, in the event of the death of boih his cliildren "without lawful heirs." of "all his estate both real and personal in the Province of Nova Scotia" to his brother, and of his money in the funds in England to S. B. and M. R., share and share alike, upon their mirriage or attaining the age of twenty-one years, The testator's son died many yeaw ago without leaving any i^sue. The daughter died in February, 1865, having bad five children (sons) four of whom survived her. The son J. G. P. H., who pre-deceased his mother, and died without leavinR any children, was living at the time of the death of the testator, and by a will luaJe in May, 1856, devised and bequeathed all his "estate real and personal whether -n possession, remainder, reversion, or expectancy, iucluuive of the distributive share he had of the estate of bis late grand-fatber J. P., (the testator) to which he was entitled under his will or in any way derivable through or from him" to his wife, E, A. H. her heira and assigns loiever, Hild, on the authority of Bigki v. Creher, 6 B, & C, 866, the question in cases of this kind being one of mere intention, and as the language of a will must be construed in the light of circumstances surrounding the testator at tho time of iU execution, and on consideration of all its provisions ; and the will in this case being made in Nova Scotin, where nrimosenitiire ia nnnnsr.H in t!-.n genius of the institutions of the ooantry, and to the letter of the lawa regulating the descent of real estate. lURTON. hiDiell. ired in person. TRINITY TERM, 1866. 313 BURTON. ) trnstess lor the benefit >ne moiety of the rents, the personnlty to and he decease of his said Bal and personal ts.ate ten forever, share and estate in like manner ion the decease of his hia re.ll and personal o be begotten forever, ter of bis said children lave the whole of the his decease to descend :n as aforesaid." ii of boih his children rsonal in the Province uds in England to S. or attainiD){ the a^e f i^sue. The daughter if whom fiurvived her. d without leaving any r, and by a will luade id pcrsrODal whether m the distributive share itor) to which he was or from biia" to bis . 866, the question in le language of a will i the testator at the ons ; and the will in the lawn regalatiog That the words <' heira of the body" in the will of the testator. J. P.. meant children, and that J. G. P. H. took a vested remainder in fee at the death of the testator m the realty devised to his mother as aforesaid, and a vested interest in he personalty so bequeathed to her. which opened to let in her after-born children successively, and thit all t!,o interest of the said J. G. P. II in the said teal an dpeuooal estate passed to his widow under hia will. This was a special case on the construction of the will of John Peoples, and was very fully argued during last Michrol- mas Term by McCulli/, Q. C. and James Thompson for the plaintitFs, being three of the sons of Maria 0. Haliburton, who was the daughter of the testator,— and by the SoUcifor General on behalf of Ellen Amelia Haliburton the widow, and also the sole devisee and legatee, of John Gustavus P. Hali- burton, another son of Maria C. Haliburton, and who prede- ceased his mother. All the material portions of the case and of the will of the testator, John Peoples, are sufficiently set out in luo judg- ment. James Thomson contended that John Gustavus P. Halibur. ton never had a vested interest under the will of John Peoples, or tiiat if he ever had it became divested by a con- tiugency contemplated by the testator in the will, ^ McCully, Q. a, who appeared on behalf of one of the plain- tiffs, argued that Gustavus had but a contingent remainder, and no interest during the life of his mother which he could devise or convey by any instrument whatever. Solicitor General contri] contended that Gustavus had a vested remainder. TViLKiNS, J., now delivered the judgment of the Court. This case, stated for the opinion of the Court, is in sub- stance as follows :— John Peoples by will duly executed, dated 30th February, 1811, (his death having occurred in the fol- lowing year) devised and bequeathed certain real estate and personal property to three trustees, (who are since dead), their executors, administrators, and a.ssigns, upon trust that they, their heirf>, executors, and administrators should during the life of the testator's daughter, Maria C. Haliburton, wife of George M, Haliburton, pay and dispose of the clear moiety 3S1^'»— ^ -w-W ^ 314 HALIBURTON" and Otheks v. HALTBURTON. Of the rents, issues and profita of his real estate, in Xova Scotia, (atter doclucting for the repairing and upholding of the same) as a so the interest of hh moneys in the funds of England or elsewhorG, unto such persons, and in such manneras his daughter should, notwithstandi' g her coverture, appoint, free from the control of her husband; and, upon the decea.se of his said danyhfer, testator gave the said moiety of his real estate and personal estate in Nova Scotia unto the heirs of the body of us said daughter laiofulbj begotten forever, share and share alilce. lestator then declared as to the other moiety of the rents etc, of his real estate (after deducting for repairs as aforesaid) also of the interest of his funded and other monovs . that his trustees, their heirs, executors, administrators, and assigns, should during the life of his son John S. Peoples, pay the said last mentioned moiety unto his said son as he mio-j.t roqun-e the same, and, on his decease, the testator gave the saidlast mentioned moiety of his real and personal estate unto the heirs of the body of his said son lawfully to be begotten forever, share and share alike. In the event of the death of either of h,s said children, ivithout lawful heirs as aforesaid the testator declared that, then, the survivor should have the w.K)Ie of the rents, &c., during her or his life ; and - at her or las decease descend to the lawful heirs of her, or his body lawfully to be begotten as aforesaid:^ The testator further declared that, if both his children should die loithout lawful hcirs,ho gave all his estate, both real and personal in the said Province, unto his brother, Thomas Poeples. and to his Ijeirs forever. The te.stator finally declared that, in the event of both bis children dying loithout heirs m aforesaid, he gave the money HI the funds unto Susannah Rumford and Mary Rumford share and share alike. The son died many years ago, and without issue. Tlio daughter of testator died in February, 1865. She left five eh. dron four of whom survived her, one of them being insane, and confined in an asylum for the insane. Her eldest son. John Gustavus P. Haliburton, whom she survived, was livino- at the death of the testator. He, by will, dated 29th of Mav^ , a_v , „„., ^^.;juca;ijuu an nis estate, real and personal, to his wife (who is now living) and to her heirs, &c., forever! RTON. in Xova Scotia, i£? of tlio same), ida of Engliind maniieran his 0, appoint, froo ; decease of his his real estate irs of the body hare and share moiety of tlio for repairs as other moneys, listrators, anl 5. Peoples, pay )n as her mig-ht itor gave the lal eetato unto :) bo begotten, E the death of as aforesaid, Dulfl iiave the nd " at her or or his body, itator furtlier 'ithout lawful rsonal in tlio 3. and to his '•onfc of both he gave the uy Riimford, issue. The ihe left five leing insane, eldest son, i, was living 59 th of May, nd personal, &c., forever. TRINITY TERM. 18C6. 315 Ihe case is brought before the Court in the form of a peti- tion of three of the sons of the said Maria G. Ilaliburton, who pray for a partition of the said real estate, and an assignment to them of their respective shares thereof; and they ask for .0 opinion of the Court, as to wiiether they are entitled to hree-fonrth parts, or three-fifth parts in the estate of the testator. We must, of course, without regard to these particular questions construe the will. The h. rued Solicitor General ai-guing for the devisee and legatee under the will of J (.ustavus P. Ilaliburton, deceased, contended, mainly on the authordy of JU^kt v. (Jreber, 5 B, & C. 8G6, that the said (xustavus, being alive at the death of his grand-father took a vested i-eniH.nder in fee in the realty, at the death of the tes- tator, WHch opened to let iti the after-born children of the testator's daughter successively. He took that estate so ve'sted, if the will manifests an ndention (strong enough to countervail the techi.ical meaning of the words 'heirs of the body.') that those words should bo read children' ; and he must have taken by purchase, because, the rule in Shelley's case not operating, there was lio inheritable estate in his mother, the tenant for life. The es^ite taken by the trustees under this will was commensurate with the purposes of the trust, and was, therefore, co-exten- sive with Mrs. Haliburton's life. The question which we are called on to decide is " Who ai-e meant by the words 'the heirs of the body of Maria C. Hahburton lawfully begotten etc.," as wo find them in the will before us? The question is one of mere intention, and tho i^inguago must be construed in tho light of circumstances sur.-oundmg the testator at the time of the execution of tho wjll^ and on consideration of all its provisions. Lord Alvanlev in Poole V. Poole, 3 B. & P. G27, said, " The words ' heiis of the body give an estate tail, unless the intent appears so plainly to the contrary that no one can misunderstand it." Lord U^]on m Jesson V. Wright said, -These words mean prima ymeall descendants, and they shall take under them, unless clearly qualified and restricted by nfhor "'--d- so a- *'■ ---— them a more limited sense ; and the controlling intent must be as clear as the intent expressed by the words:" but "tho 31G llALIBURTON and OxnEiw v. IIALIBURTON. rules of construction freely permit tho use of the words ' Iieirs of the body' in the limited flonso of ' cliiklron', tliose rules requiring only a clef\r oxi-lanation of intention to justify a departure from tho ordinary meaning." See Ilaf/es on Limi- tations, p, XXXV. It is not possible to review tho authorities that boar on this question, without feeling that tl.ere exist opinions anc^ criti- cisms of text writers which detract somewhat from tho force of Ri(j1it V, Creher, considered apart from its weight as a judgment of the high Court that pronounced it ; but the case has not been overruled by competent authority. It is true that Jarman and Baijes consider it in effect to have been overruled, and the former mentions Doe v. Feafherstone, 1 P>. ^ Ad. 944, as one of the decisions to whicU that effect may be ascribed. But, from what fell from Patteson, J., in the last mentioned case it would appear that he did not refer any such operation to it. liir/ht v. Creher was relied on by counsel with- out disapproval of the Court, in'Abram v. Ward, G Elare, 105, and in ToUer v. Attwood, 15 Q. B. 929. See also, the sigin'li. cant note)^to Surjdm on Real Property, p. 251. Observe also, that the Cliancellor in Ireland, in ilJontijomer// v. Alontfjomenj, 3 Jo. & Lat. 47, {Sugden on Heal Fropcrt//, 252), thus limited tlie authority of tho antagonistic case of Jesson v. WrlgJd. Tho learned Chancellor said, '' Doe v. Jesson only decided that the words 'heirs of the body' would operate as words of limita- tion, where otherwise the issue would not take estates of inheritance;" adding, "it is of deep importance that Doe V. Jesson should be put on its true grounds." Viewing MigJit v. Creber, then, as a binding authority, I pro- ceed to inquire, " whether it does not jovern the case before us." Excepting that in this case there is, and in that there was not a devise over, the two cases are not distinguishable. In it no importance, or, at least no great importance seems to have been attached by the Court to the superadded words of limitation, viz., " their heirs and assigns forever." But hero we have the word 'forever' which is sufficient in a will to pass a fee, to say nothing of the effect of the word ' estate.' Can we gather from the language of this will, viewed in the light of the testator's circumstances when he nxocntf»d it sufficient evidence of his inteution that tho words, ' heirs of ITON. of tho words iliiltlron', thoso iition to juHtlfy Uaijea on Llmi- at boar on this liona anc^ criti- from tlio forco ; woiglit as a ; but the caso ty. It is trne to liavo been ifhet'stone, I B. t c fleet may bo J., ill tho last refer any siu^h 7 counsel witli- l, G Hare, 1 05, Iso, the signifi- Observe also, . Moidcjomci'u, I, thus limited , WrirjU. Tho cided that fho ords of limita- ko estates of nco that Doe thority, I pro- le ease before in tiiat there stingnishable. ince seems to Ided words of '." But hero a will to pass jstate.' viewed in the •■* ••; )rds, ' heirs of TRINITY TKRM, 18CG. 817 the body' were -d in tho sense of ' children' ? He died in Nova Scotia, and resided in that Trovince when ho made his will. At that time, and at his death, and when his daughter died, primogeniture was opposed to the genius of our institu- tions, and to tho letter of our laws regulating the descent of real estate. It is not pretended that an estate tail vested in the daughter. Tho testator, therefore, designed an original gift of some sort to those intended by the words 'heirs of tho body.' His use of tho words ' share and share' alike imports that ho intended more persons than ono to be objects of liis bounty. Great efibct has been given in English Courts and in our Court to these distributive words, and adverting merely to the intention of the testator, it would scarcely seem justiilablo to reject them, especially when wo consider that tho testator used them when making provision for the then unborn issuo of his children, with regard to whom ho cannot be supposed to have intended to disinherit any of thom. I can find nothing in the will which necessarily shows that tho testator designed that ono only — tho oldest sou of his daughter who might happen to bo living at her death— should take his whole estate. Such, however, is tho inevitable legal consequence of inter- preting strictly the words, ' heirs of the body.' The commou law rule must govern ; as our statute law did not, at tho time of tho death of the tenant for life, nor at tho previous time of tho death of tl.3 testator make any provision for tho caso. It provides, and provided only for the descent of estates held iu fee simple, or for tho life of onother. (See Gorhin v. Ilealy 20 Pick. 514, decided in the Supremo court of Alassachussetts wheu its statute law was in this respect identical with ours. See also, 1 Waslihurne on TCeal Projjeriy, 81, s. 53.) Unless tho words ' the heirs of her body &c.,' bo read, 'children,' as contended for by tho Solicitor General, they import, necessarily, that individual wlio would bo, and was at the death ot tho tenant for life, (who had in herself no inhe- ritance to transmit), tenant in tail; and ho took by purchase, per/ormam doni. (Soo tho case of Tipping v. Casin, Garth., 262, mentioned by Butler, in his note 1 to Co. Lilt, 37G, b. See, also, Bayes^ 1st and 2d propositions.) Moreover, on the otnct conatruction of tho words, luo oldest surviving sou to tho exclusion of all the other children, took absolutely, 318 IIALIBURTON and Otiikks v. HALinURTON. at I.sn other's cloutl.,.Il tho personal ostato in whiel. she took a l.fo interest ur,(ler the will. JFa.^urnc on Heal Promrt,, 74; 2 Bl Com, 113; Green v. Steven,, 17 F.^.y 73 ^ ^' ir we look at tho disposition of iho personal^ alone, whilst tho inference from tho wonls "share and share ah'ke " i. tha tho testator intended more than one of tho lineal do' scendantH of his daughter as the objects of that bounty " the cons,derat.on"that by a strict constrnction the oldest ^on at tl.edea h of the tenant for life wonld take, and exclude all tho other ch.ldrenfroni a participation in it- strengthen, an inter- pretation which would road the words as if written " children " It IS possible, though I think very improbable, under tho cii- cumstances, that the testator may havo designed to preserve h.s m^Z e^/«^e in u lino of succession through tho eldest male child of his daughter her surviving, but I can.iot bring mv self to conclude that he contemplated excluding ff-om an enjoyment of tho j;c..on«% all tho other children; born and unborn. ' The testator's disposition of his realty muy, I think, bo read thus, as respects the daugliter and her lino of dcscon- dants to which alone we need refer, at pi-esent, as she sur- vived her brother who died unmarried :-viz " I civo in equitable estate for life to my daughtoi-, with a 'legal remain- del- in fee to hei' son (Gustavus) now living (Doc e. d. PlUc ^noton v. Sj.ratt 5 B. & Ad. 731), tho same to open and let in successively after born childi-cn of her in fee," thus satisfy' ing the words " share and share alike forever." (Baldimn v ^a,Te^ Cowp 309; Doe v. Pen.jn, 3 T. R. 484; 3Ieredith v. Meredith, 10 East, 503.) Lord Alvanley'8 riilo of construction above noticed, viz.: "that the words, 'heirs of the body,' give an estat; tail unless the ii.tont appears so plai.ily to tho contrary that no one can misunderstand it," however applicablo as regards England, would, in my judgment, if strictly observed in Nova Scotia, in relation to a will made, and to operate there, if it were in terms like tlai before us, be more likely to defeat, than to carry out th: real intensions of the testator. It appears to me that if we reflect on the different policy I.ws and usages on the point of the entailment of landed estates! which prevailed m England, when HigM v. Crebe?- was de- iURTON. in whicli slio took n Real Properbj, '■ficy, 73. ciUij iviono, wlillst slmro aliko," is, of fllO lilKMll (lo- 'hat bounty," tlio tlio oldoat son ;it (1 oxchulojill tho ngtlioiK^an ititor- itfon "children." lo, tirulor tho cir- nofl to prosorvo I tho oldest inaio mnot bring mv- lading from jui ildroD, born nnd ii:ij, I think, bo b'no of dcsccu- lont, aa sho mv- 55., "I givo iUl a logal remain- {Doe c. d. Pllh jpon and lot in, •/' thus satisfy- " {Baldwin v. 4; Meredith v. 9 noticed, viz.: trn estate tail ntrary that no )lo as regards erved in Ntiva to there, if it kely to defeat, testator. It t policy, luwa, anded estates, ^reher was de- TRINITY TERM, 1866. 3^3 general intent." ^ ' '"'' '""'^^ ^'vo way to a Bailoy J an Oiniuoilt JuJ'm foi-mn,I nn„ „r .1 r, (lecidod, iu tho Kin..', UoncI, "(r,!;? r ° ^""''' "'"' uiu tlUUlOlIty Ot tho lll(l'r|ni>|if nf +1.^ r 1 ii ^ "r s^,": %';,:: ^- :• Tr^'*""- -f-'-?to%/- v: u/toer, saui, Ihatcaso took for iN o-n.M,. +r • . /'" *• uuds of which d,o had the interest whilst :^,/ ft altogether undtsposed of by the will, e.oept on a remote el tingoucy that nauo.- l.»„„„„„j ,\ ■ *_. "" » '™ote oou- ,..._..^_..„, iigiiiD, \vueu siio survived 320 HALIBURTON and Others v. HALIBURTON. Lcr hrotlier, to whose upo half the rents of the realty, and half the interest of all monies, wherever funded, were appro- priated during hi., life, — tlio provision fund applicable to lior and the heirs of hor body, as regards the moiety of realty and personalty primarily intended for the son, is in terms as follows : — " (she) the survivor shall have the whole of tlic rents, etc., during her life, ami at hor decease to descend to tlio lawful heirs of her body, lawfully to be begotten as aforesaid." In the clause there is no previous mention of inrsonalty, the only antecedent language being " the whole ot the rent.s, issues, and profits." A devise of ihc rents and profits wouhl, indeed, carry the legal as well as beneficial interest in the land; but the context pretty plainly indicates that such effect was produced in this clause of the will, by accident and not from the ad- vised use by the framer of it of those words. Tims, instead of such a disposition having been expressed by explicit words, — the daughter took under the will, on tho happoiiiiig of her survivorship, the use, for her life, of the interest of the son's intended moiety of the personalty, and tho ' heirs of her body,' took an estate in the son's intended moiety of the realty, 6y implication alone. That the language of the will, viewed as a whole, supports that implication is, as it happens, clear. See 2 Jarman on Wills, 478 ; I HilUard on Real Propierty, 522, sec. 17, and tho cases therein referred to, The estate in the moiety of the realty, primarily intcndoil for the son, thus taken by tho heirs of the body of the daugh- ter lawfully begotten, &c,, was clearly tho same in quality and quantity with that which the heirs of the body, &c. took by express gift as regards the other moiety ; and subject to the same incidents as to vesting, (^ii AND AKOTHER. i^as inclined to con- tliia case corveyed C. J. said that i to the vesting ol '•est at tho earliest! ble of vesting. iJ [the case in whichj which he had jusi idgment, and thero| the Judges concur. jonsiderable hesita- his mind than t< to wliaf had been JB. He had looked own opinion,— an Crehcr, which be ncided in tho judgJ iVilkins. Bule accordingly. , Solicitor Generm TRINITY TERM, 1866. 825 :oRS OP Ross V. D. lefendants) by agreemenl ive him a mortgage f the lands to R. in 10 was then very ill, I better take the mor vhen joa bring me s notfi." B!sT' tAfdc t!> B oaoae, gave no opii IflKXtgage to A. and had it registered,— but this was not notil a fortnight after R'l Ijistb, and aboat three weeks after the above conTersation. No intermediats Jiaonmbranoe, however, intervened. McL. obtained the certificate but did not IbiiDg it to R.'s adminiatratora. R. died intestate and his administrators brooght ItUi action on the note. Htldt That McL. had snbetantiiilly fulfilled the agreement between htmself, MoD., laid B.,— and the jnry having fonnd for the defendant?, (the question of the delivery I of the mortgage to R. in his life time having been left to tbem), and having aim fgond that MoL. acted in perfect good &ith, the Coort reftised to disturb tha Ifvdiot, Assumpsit on a promissory note. Pleas (among others) that, by agreement between James Ross (the intestate) and the defendants, the said note was given as a security for the sum of fifty pounds advanced by the said James Ross, de- ceased, to Donald McLean only till such time as tho said Don- ald McLean (the first named defendant) should convey by way of mortgage to the said James Ross certain premises called the " Meagher lot " ; that the said mortgage was made within a reasonable time and in the life time of the deceased, and duly executed by the said Donald McLean and wife, and was de- livered to, and registered at the request of tho said deceased, and that the said mortgage was accepted by him in full satis- faction and discharge of said note. At the trial before Young, C. J., at Antigonish, in June, 1866, the allegations set out in the pleas as above were substantially proved. It further appeared that Angus McDonald (tho second named defendant) was a surety on the note — that a mortgage of the premises in the usual form was executed by McLean with a promissory note annexed thereto, payable a year after the title was cleared, and tendered to Ross, who was sick in bed, that the mortgage was exhibited to him, but. not read, and, that he said to McLean, " you had better take tho mortgage over to Antigonish, and when you bring mo back a certificate that it is left in the office, you will get the note." McLean took the mortgage to Antigonish accordingly, and had it registered, but Ross died in the meantime, his death having occurred a fortnight before the registration was efiFected, and about a week after this conversation with McLean. McLean obtained tho certificate but did not give it to the plaintiffs, but to jIcDonald, the other defendant, who returned it to him again some years afterwards, and McLean subse- I 326 Mckenzie A»DAKoTnB.«.MoLEANAKDA!«m.EB. quently lost it. Tho administrators of Eoss fonnd the note anions "3 papers, and brought this action on it, treating as a distinct debt. ^»*'iuy n The learned Chief Justice, in his charge to the jury, stated tha he cons,dered that tho execution of tho mirtSge by McLean and w,fe ,n the usual form, with a proraiss-ory „oU fulfllraent of tho contract made by defendants that McLean should g,ve a mortgage, Ac. El. lordship left the question the jury as to whether there had been a delivery ol the mort gage to the .ntestate in his life time. He stated, how" o^ that to regmtry of ,ho mortgage, though not efTected unt after he death of the intestate, seemed to him sufficieo there being no intermediate incumbrance. The jury found for the defendants, and a rule nm argTei "" "^° *" ''' *"« ^«''''=' -'<•»' " - Z McDonald Q. C. i,. support of rule. [rouNo. C. J The ^nery of the mortgage to the jury, and whether there w^ ^t thrr" ""■ /'•"""« °" "•»' p°-'- W"-™. ■ ™1. ' ., ". "° '''"''" "f "-J McLean was to give a mortgage m he usual form. I cor-end that your lordship 4s bound to tell the jury that he haa not done'lo, because ?he was no evidence of it. There was no evidence that th mort gage was read to Ross. McLean testified that ho went wi contents The agreement was not to be concluded until the ilf xr '■ . ' ^- ''■ ^'"' ■"ortgago was registered on the 16th November, 1858, a fo„ night after Ross' dfath, he hav ng died on the 2nd November, 1858. McLean fulfilled the essenof 1 tLe°atTr^, f" "'"" " '°^'»'8'" -'-vened betwee: the time at which he was directed to register the mortgage and the time when he did reiristBr it. rv„„.,„ n ,."""?**' been a falfilment of the contract, but none intervened. iND Another. 'S8 found the note 1 on it, treating it to the jury, stated the mortgage by a promissory note , was a reasonable ints that McLean Bft the question to ivery of the mort- B stated, however, not effected until to him sufficient, md a rule nisi side, it was now OUNO, C. J. The 3 question of the i^hether there is int. WlLKINS, J. ' ^^^^-'^"^ Smith, on t gfOUnd-.th6 only one remaining for consideration-of hi' being, a the t,me of his arrest a bankrupt, adjudicated to be snch m the London Onnrf nf «.,»i ^-I x ^ ^ "® -■ - ' _ --- ^..-xxupLu/. AH support of the • m .i. JbAnitofi, for defendant., was not oOled on. TRINITY TERM, 1866, pliance with tho lie discharged* 329 ; in thia Provinoe for BKor, in the State of payable 60 daja after and resident there, », bat did not pay 1861, io the London r discharge. On tho arrested on a capiat n these bills, in London, and the 9 from the Court of in this Provinoe. ent evidenoe of the . 161 & 203, and of liad obtained a who had been •upt. litchie for tho 8 affidavits are the Court. 38t on bailable Jmith, on the ration— of his idioated to be upporfc of the application ho has produced and authenticated a document under the seal of that Court, declaring him a bankrupt on the 14th November, 1864, by the name and description of Frede- rick Smith, of 34 Fonchurch Street, in the city of London, commission m( hant trading under tho style and firm of Frederick Smith & Co., and residing at Sussex Villa, the Grove, Sydenham, in the county of Kent. This document is dated on the 27th February. A. D. 1865. The affidavits and the process before us show that the appli- cant was arrested on the I2th day of July, A. D. 1866. Tho affidavit on which ho was held to bail, and tho process viewed m connection with it, show the subject matter of the action to have been two several bills of exchange drawn by the plain. tiflF,at Bangor, in the State of Maina, United States of America, (for XIOOO sterling each), at sixty da. s after date, (17th August, 1864), and accepted by the defendant (on tho appli- cant) in London. The applicant is shown by affidavit, at some undefined time, previous to tho year 1865, to have resided in London, and to have boon a trader there. Being thus called on to decide on an application for dis- charge of a party arrested under our own process, on the ground of his being entitled to liberation under tho provi- sions of an Act of the Imperial Parliament, wo should have felt a deep sense of embarrassment and difficulty, had it been necessary for us to construe judicially a voluminous, compli- cated, and intricate statute, novel to us in theory and practice. But that necessity does not press upon us, and all that we have to decide is, (and to that we carefully confine ourselves), viz., whether a British subject being casually in this Province and arrested hero for a debt declared to be due to a subject of a foreign Government, and applying for his discharge on the ground that ho had been duly adjudged a bankrupt in London, and that the particular debt was provable under his bankruptcy,— is entitled to hip discharge on production of sufficient evidence of his bankruptcy, and that the debt for which he was arrested was provable under it. _ It is necessary to refer to the existing English Acts of iiankruptcy and Insolvency so far, and so far only, as may be necessary in order to decide the question before us. S30 MILLS D. SHITII. If there were nothing in tlieso Acts which miKht bo con atrnod a, .n.posing a duty on this Conr. to act in iCjZ before n8,.„ „ mode prescribed hy them; still, in order to deternnne he question which involves the personal liberty of ho applicant, who, though a foreigner, is entitled to tho protoct,o„ of our laws-we should be obliged carefully to consKlor tho Imperial statutes on which ho relies for his di. charge from our proooss. It is enacted by the 24 & 25 Vict. chap. 134 sec "Ot hat "any petition for adjudication, or arran'gen,e,V«d u.fi .' ton of bankruptcy, assignment, appointment of official or creditors assignee, certificate, deposition, or other preceediug or order in bankruptcy, or under any of the provisionsof 1 U Act, appearing to be sealed with the seal of any Court under this Act, or any ,vnting purporting to be a copy of any such document, and purporting to bo so sealed, shall at all times «nd on behalf of all persons, and whetho; for the purposes Levlte'T rf"''" '"'"'■"°'' '■» "" Courts ..te- as evidence of snch documents ..,speotivoly,and of such pro- ceedings and orders having respectively taken place or been fflade, and be deemed respectively records of such Court without any further proof thereof." And by section 204 judicial notice is required to be taken by all Courts, Judges, Justices, and persons judicially acting, and other ofBcors of the signature of any commissioner or registrar of .ho Court,, .nd of the seal of the Courts subscribed or attached to any jndicial or official proceeding or document to be made or signed under the provisions of tho Act. iJl'^i !;^'"""'-' ""•''''"^ '" ""''"'™ ^"'""l'^'' 'he language of the 203rd secuou, viz., "all Courts wimlever," bo comprehen. siveenongh to inclnde tho Courts of the' Queen i,f nZ Scotia 1 IS sufficient to consider, in the first place, the «; «c^«ta e re., and, in order to the pretection of an English bankrupt happening to be in this Prevince, and there arrefted the English Bankruptcy Acts, to prevent its own process SeDrte'd"7 . *? "" ^■'°"'"°" "' "«' '"'"'y "f " Po-on deprived of it contrary to the fixnr«aa «.„„:„.•.... _/.. AUs , and secondly, and especially, that all doubts, if anv arising as to the application of section 203 to Nova ScoZ' TRINITY TERM. 1866. 881 makes ovory docu^^nl whic t "1:; t'';.^' tirif ^ '"I the Act) ill force, or tliore.iftor t„l • V ^ ""« °* bo ad™i..,o in- o^aerx ^^L-ufr ?; i;;; "curr J« fee m Liigland, or Walo,, or Ireland, without proof "f the Thus then, this - ordor of discharge " is evidence I)nfor« cLr.:': Teitr^r " ""-"• ^« '--- '- ""-i- Whether it would bo there, or ought to bo horo regarded as that point we give no opinion. PrM. facie evidence iZaZ twnMyu, •■ oftU l„nkruplc,j and of ui proceedi^^sprZZ xl°t:/ ''""'T" °' '""'' '"> "-' view ifl .r ! tioally conclusive evidcuce, until it be at least impeached bv a suspicion cast on the validity of the bankruptcy, or of the precedent proceedings, or of the order of discha'^^ge L ch S't' d!;r "" "^' ""'' '" ""- -°' «'^' o- '- "■« The " order of discharge" then, on which this arrested oartv rohes as entitl ng him to hi, discharge from ou ™ absolutely entitles him to it by force of section ISUf the mperial Act of 1861, chap. 134, provided he ha Lough himself wilun Its provisions by showing to this Court tha he particular debt for winch he stands arrested was "a debt claun, o, demand pro^oWe under his bankruptcy.' This he has established by evidence entirely uncontradicted , „d u„ .mpeaehed. It is in proof that he was arrested, nider lie process that detains him, on bills of exchange drl vn by a resident in ono of the United States of Amerien .IZ..' wiio accepted the bills in London,~on a party-duly adiudi; «ted be a bankrupt in the London Court of Bankruptcy. m»t the particular debt was a debt provable under his bank- raptcy 18, therefore, a point Dot io controversy. 332 MoSWEENY V. WALJJLCB, We aro. thorefore, of opimou that the rule muat be made absolute. Attorney for plaintilT, Weatherhe. Attorney for defendant, J. N. Hitchie. Rule alsdiUe, ^ JOHN MoSWEENY v, T. J. WALLACE. August 2, 1866. Whereon an application to Mt adde plea, as faUe. frivoloua. and vexatioo., f«M -.own, the plea, to be easentially lal*. a« podtlrely ,worn to. and ax^ r, partially bat not directly and explicitly denied in the affidaviu on the other side, the Court will aet the pleaa aaida. ptainfff himself. ,h,« rule dc«a not apply where the facU on wLich the phUnUff relies are in the knowledge of the attorney and not of the plaintiff A motion to set aside false and vexations plea, applie. equally to a fo«clo«.re aa to a common law suit. This was an appeal from the decision of Wilkins, J at Chambers, on the 13th March Jast, sotting aside tho pleas and ordering a sale of the mortgaged property. The action was brought to foreclose a mortgage made by the defendant to the Reverend Patrick Dunphy, and assigned by the executors of the said Patrick Dunphy to the plaintiff. In his first plea the defendant says that the "alleged mort- gage IS not his deed." Li the remaining pleas (thirteen in all) most of which are very voluminous, he admits the making of tho mortgage, but sets up various defences, the principal of which aro no consideration,— that the mortgage was exe- cuted voluntari!y,_that it was a condition precedent before the payment of the amount due thereon that the plaintiff and one Rev. Patrick Dunphy, deceased, (who together with him- self were co-executors of the Very Reverend Dean Dunphy) should obtain for him releases and discharges from the next of km and all parties interested in the estate of the said Very Reverend Dean Dunphy, and should also indemnify him against all claims against the said estate, including the claims e must be made Hule absolute. TRINmr TERM, 18G6. 333 LACE. I, and vezatioaa, FmU, orn to, and are onljr itfl on the other aide, Qeral, be made bj the Q wbloh the phuntiff aintiflf. tialljr to a foreolosare Wilkins, J., at tho pleas and The action was e defendant to r the executors "alleged mort- is (thirteen iu lits the making , the principal jago was exe- jcedent before le plaintiff and ther with him- >ean Duophy), from the next e of the said indemnify him ing the claims for legacy, and succession duties, that such releases, dis- charges, and indemnification had not boon obtained, vnd thue therefore, ho was entitled to resume the executorship (from' which he had withdrawn in order to settle certain disputes between himself and his said co-executors) ns ho had done and to retain iu his own hands tho money secured by the said mortgage. The appeal was fully argued early in tho present Term by J. W. Johnston, Junr., and JV. A. Johnston for the defendant (tho appellant), and by J. N. Ritchie for tho plaintiff. The statements in the various allidavits of J. N. Ritchie of the defendant, and of H. JJIanclmrd, (being all the anidavits used on tho appeal), and in tho exhibits annoxod thereto, and tho points taken at the argument are suflicicntly set out in the judgment. Young C. J. now delivered the judgment of tho Court. The present action of foreclosure ooh arisen out of the cele- brated case of Dunphj et al v /Fa/^-:i, which occupied so much of our time in Michidm. s, 1803, uid made us familiar with all the facts. I forbear Uv.u goii,.; into these as our judgments are on file, and are in c . i;..j of publication in Mr. Oldright's reports.* It now appears that, in Mav, 1864, the three executors entered into the agreement annexed to' Mr. Ritchie's affidavit, and which tho defendant docs not dispute. The object and intent of this instrument are apparent from tho recitals and covenants, which seem to us very clear and precise, though it was said at the argument that it had been hurriedly drawn. Tho loading recitals referring to tho estate of tho Very Reverend James Dunphy aro as follows :— " Whereas differences have arisen between tho said execu- tors touching the management of the said estate, the control of the funds, and the construction of certain clauses in the said will, And whereas the said John McSw.^ony and Thomas J. Wal- lace as such executors have each received into their hands and possession large sums of mouf^v belonging to the said estate A ^A ivt vfiiereas ^.-ie saui i atrivk j^uuphy and John McSweeny * See antt vol. 1, f . 383. 334 McSWEENY u. WALLACE. have commenced a suit on the Equity side of the Supreme Court of this Province against the said Thomas J. Wallace which is still pending and undetermined ; And whereas for the sake of settling the said suit, and all matters in difference between the said parties under the said will, the said Thomas J. Wallace has agreed to relinquish the said office of executor and trustee under the said will, and to release to the said Patrick Dunphy and John McSweony all his right and title to any portion of the said estate for fees or commissions, and any claim he may have at law or in equity under the said will or otherwise howsoever, and to pay over to the said Patrick Dunphy and John McSweony the sum of sixteen thousand dollars in full of all tho monies of the said estate remaining in his hands, subject to the several deductions therefrom mentioned in the schedule here- unto annexed marked "A," which are to be borne by and paid out of the said estate ; And whereas the said Patrick Dunphy and John McSweony have agreed to indemnify and save harmless the said Thomas J. Wallace, his heirs, executors, administrators, and assigns, of and from any liability and responsibility under the said will, and from any claim or demand of the next of kin of the said James Dunphy, and from all or any other person or per- sons claiming under the said will, to be brought against him personally, or as such executor and trustee under the said will as aforesaid." Now, it is known to us from tho original suit that the other two executors, in accepting $16,000 from the defendant on behalf of the heirs and legatees of Dean Dunphy, surren- dered a large sura which was in the defendant's hands, and which in fact was the price paid for his relinquishment of the trust. It was a costly, and, we may presume, considering the state of feeling between the parties, it was a prudent and wise compromise which a Court would uphold if it could. The covenants on the part of the defendant carry out the recitals, and he accepts the covenants of his co-executors as sufficient guarantees for his protection. He might have stipulated for actual releases from the heirs, for the actual payment oi legacy duties, for his resumption of the executorship ir case Mr. Patrick Duophy should die TRINITY TERM, 18S6. f the Supreme aas J. Wallace, id suit, and all under the said relinquish the vid will, and to McSwoony all istate for foes at law or in ioovor. iind to hn McSwoony ill the monioa ubject to the schodulo hore- 10 by and paid hn McSwoony ) said Thomas i, and assigns, ttder the said of kin of the person or per- t against him ader the said that the other defendant on nphy, surron- b's hands, and shmont of the msidoring the prudent and 1 if it could, carry out the -executors as rem the heirs, s resumption ly should die 335 before the estate was closed, or for any other provision that he thought essential for his interest or his safety. There are no such stipulations, and as the agreement was witnessed by his present counsel, was executed in the office of the Equity Judge then acting for the two executors, and was fully under- stood by all parties, wo concur with our brother Wilkins in thinking that for all the purposes of this argument the defen- dant is bound by it. This mortgage of $11,000 is given as part of the $16,000, and ought to have been paid two years ago. It was accepted as equivalent to cash at three months, and the now plaintiff having been obliged to como into this Court to foreclose it, the question is, whether under our practice it is competent to the defendant to raise the defences which are contained in his voluminous pleas. Now we are all of opinion that it is not competent for him to do so. The money in this mortgage is not his money. It belongs to the estate, and by our original decision ought to have been paid into this Court for the protection -id safety of the legatees and heirs to whom it roally belongs. This was our judgment when the defendant was still an executor, —a fortiori it is our judgment now when he has ceased to be one. We beg to be understood, however, as giving no opinion whatever upon the right ho now claims to resume the execu- torship, and the management of the whole or any part of the estate. These questions or any other it is perfectly open to him to raise in a suit for that purpooo,— all wo say is,— that he has no business to raise them in this suit in the face of his agreement under seal. Wo will take care, however, that no injusHce is done him. We aro disposed to do more for him, in fact, than he did for himself. From the fact that the plain' tiff has the confidenco of Dr. Hannan and Mr. Molsaao, the ex- ecutors of Mr. Patrick Dunphy, and the natural guardians of the rights of their church and of the legatees, we are satisfied that tho defendant runs no risk of being cal'ed upon for legacy duties or any other liabilities of the estate, but we will not expose him oven to that remote risk. In granting tho foreclosure we will direct the proceeds to be paid to the Accountant General, and out of thaan wHi o^a *u«* .11 ...A 836 McSWEENY V. WALLACE. M demands are discharged. On this account we think the want of the soliedule of little moment,— the want of it does not vitiate the agreement, and the contemplated deductions will be ascertained and settled hero, if not already paid. The other objections that were taken, and which were chiefly of a technical kind, may be easily disposed of. It was said that the affidavit to set aside the defendant's pleas oc^ht to have come from the plaintiff himself, and not from his^'attor- ney, and no doubt that is the rule where the facts are in the knowledge of the plaintiff or of his authorized agent. But here the execution of the agreement is proved by the exami- nation of Mr. James W. Johnston, now of counsel for tho defendant, and the defendant's admissions, which aro partially but not directly denied, wore made to Mr. Uitchio in person. His affidavit is thus of some avail, while that of the plaintilV who resides in the adjoining Province Avould have amounted to nothing. ' It was then urged that a motion to set asido pleas as false could not be made in a foreclosure suit, and, if we were governed by the English practice, or tho rules of an Equity Court, this objection would be fatal. But by the fourth sec- tion of our Equity Act, in all cases formerly determinable in Chancery and now conducted 'a the Supremo Court, the prac- tice of the Supreme Court as far as it is applicable shall bo observed, and we hold it to be the practice of this Court which experience has shown, within its legitimate bounds, to be a wholesome and highly convenient practice, that a mot'ioii to set aside false and vexatious pleas will apply equally to a foreclosure as to a common law suit. If, indeed, fraud had been alleged in tho defendant's pleas as tainting this mortgage or impeaching its consideration, wo would probably have thought it right to remit it to a jury. If, again, the defendant had ventured to deny that the mort- gage was his, that is a question which we would not have tried on affidavits, but would have considered this summary juriadiction as at an end. Now it is to be noted h ,, this essential point is handled in tho affidavits. The mortgage is witnessed by Mr. James, a barrister of this Court, who proves it for r- -istry before Mr. James W. Johnston. It is recriBterad aCROrtiinn^Iv an^) tUa AaCty„.,l^^*. ..„.._ *i nnn ve think tlie want nt of it does not d deductions will 3y paid. /hich were chiefly of. It was said 's pleas oc^ht to 9t from his attor- facts are in the ized agent. But ed by the exami- counsel for tho hich aro partially itchio in person, t of the plaintilV i have amounted 3o pleas as false and, if we were es of an Equity Y the fourth see- determinable in Court, the prac- plicable shall bo of this Court mate bounds, to 36, that a motion >ply equally to a ofendant's pleas Dusideration, wo nit it to a jury. ' that the morfc- vould not have d this summary noted h ., this The raortgago this Court, who ''ohnston. It is .~ Ai t\nn -/■ J.K . CASES OKTEKMINED BT TriB SUPREME COUllT OF NO\fA SCOTIA, IW MICHAELMAS TERM XXX VICTORIA. ANDERSON v. MASON. December 15, 18C6. wa«.«, to any of the oon9tnble8 of iho coouty, Inaioad of to tho sheriff or hi, deDutJ " S. * ""': ''•.""^ « •""« '•'^8">-''y which is walvM by .pp».lZ " ' TbB juri^Uctlon of the 8,lrH,„diar, Magistrate under L2^ 8.1,«, cL.n 76 to concurrent only with U,.t of two Juatlce, of U>e Pe«*. and notTxlLve In ti.« cas. the writ was «i«„ed by and u,Bd« burnable tefor^osa^Vi tnal by the rcqaeat of the defendant. fle/rf, that the lnrt>gularity, if any, wm otired by Uie aM>».- equi- valent to an appearance without process, or at all events as a waiver of any objection to the process. We think, therefore, thau the judgment below must bt affirmed. Judgment affirmed. Attorney for plaintiff, Voombet. Attorney for defendant, B. 0. Gray. HARRIS V. F^DER. December 15, 180C Ad •ffldsTit h snfRofontly enUtlcd in tho oatuia, kltboogh the worcb " plainUff" ■ad "defsndant " tra omlttMl in the bending i^te Um nsiMi ol the putiea. The ohaoging of the •maxM in a cnaM dey«iid« manly <» tbu balanoa of oonvenl noe u regirda the trial. In thi« one, the CJoart, being of opinion that th« owm oonld be nora coore. ^■Milw trisA ht £ss^ nk to ohaagn Um vmum abeolate with ooittk :• :b wmmu kwS vvtiiia wwi Muu, made the 372 HARRIS V. FADER. ^ Blanchard, Q. C. on a former day had moved for a rulel absolute to cliange the venue in this case. The rule waa argued by Blanchard, Q. C. for the defendant] and Teatherhe for the plaintiff. The facts pet out in the various adidavits, and the pointj taken at tiie argument, are Bufficiently set out iu the judgment.! DesBarres. J., n )w delivered (he judgment of the Court. J bis was an application for a change of venoe from the county of Kings to the county of Halifax, on an nflfidrtvit ol defenUuMi, stating that the cause of action, if any, arus:> at Margaret's Bay, iu the county of Halifax, ai.sta;)i 02 mi., from Kentville in the county of Kings, tha' ho has a good defence on vLe roeiits, that he and ' • :Ui;illy dove ; secondly, that all the pliuntiff's witnesses, six or ioviiii 'n fiurabo, reside, with the exception of one^ out of the ccnoiv ^r Ifali^ix, and most of them in the county ol King-?, vriihhi a fav/ miles oi Kern vUlo, and ;hat more expense will Iq nieurred hy plalntifiu taking his wilnesses to Halifax than the defendant would incur by taking his wituesses to Kentville. In the first place, wo think on the authorit - o^ Richard v, Isaac, 1 C. M. & R. 136, that although the affi-iavit of defen dant does not designate the parties as plaintiff and defendant as is generally done, it is, notwithstanding the omission o these words, suflBciently entitled in the cause. In the case referred to the affidavit being entitled " Thomas D. Isaac at the suit of John Richard " was held to be a deviation from the usual mode, which Gurney, B., said had never been allowed observing that tlie proper mode of entitling it was " A. B. c. C. D.", just as the affidavit of the defendant in this case ii entitled. Lastly, having read and considered the afHdavi|-a n;i l th sides, w© are under the impression from the facta and cin. u In a oast \!» Tuis, dafeadan TilQ m 8ani( U»t thr chuivh it the mnri In thi lad no I was evir] of 8ul)«t'(| "I a(>ok< •ras tool bis wife not thin •rould tn rapport 1 tbont ill!* Held, Mt(s, as I lod the c BlGA last. The conteni the alh tracted ^m MICHAELMAS TERM, 1800. 373 I moved for a rDlel'''^"^'®^ thereiu respectively get forth that this cause can more conveniently bo tn'ed in iliis tiian in the county in which 17. for the defondant.pl"^ venue is laid, and that there must, thoi-eforo, be a rule ibsolulo to change the venue with co8l8. BfiJe absolute. vita, and the point »nt in the judgmeoi ;ment of the Court of venne from tlie , on an nffid«vit ol on, if any, m'uso at X, uiatA;^ 02 miles tha' ho has a good wihu3i,8e>>, eight in| ing ■% poor man, be Iville. of tljo plaintiff on fent^ant is not pr titled "Jndson'i). nW and di-'eiidum ili;>,)atiff*ti witnesses, ception of ono^ out m iu the county o ihat more expense ritnesses to Halifax ^; his wituesBCs to Attorney for plainiilT, Weoiherbe. Attorney for del'ou'Janu Bfanc/iard, Q. 0, THE QUEEN v. HEXUY P. ALLAN. Januarij 2, 1867. arit;' of Richard v affidavit of defen utiff and defendant g the omission of luse. In the case riiomas D. Isaac at deviation from the )ver been allowed, ig it was " A. B. laot ID this case it In R pifxicoutioD lor bi^^aiuy, wbera ibere w a ibivi;ia maiiiaee, tbe roi«i«u law most lie strictly proved. Ti.i8, however, is not nG04Nwiry, whem llie tntirri^^ has l>eon admiUod by (he jafeudant, and there are ooiioOo.alins; ciicuiuslancea sHenittUeuiax the adiuia^oo. Tho tbHiiinouy of the minUler who maiiiud puuies that be bad a maniaKs HjCH'ifl which WB9 luonViJ' lo hioi by «sity for proof of tho marriage law of Maasachu- letts, as the m . on Crimes 2iG, 217, 218, note. An admission only has been held to be ufficient. It wivs not neccK.sary to prove the license to establish the second mar- riR«:'j. Bus. & By., 108. A settled minister hero acting under a license is on the same tooting with an Episcopal m'niiter. (Cites 3 BHtish Crown Cases, 267.) The license horn is recorded ; the minister himself is the best evidence. The defendant admitted the second marriage in ofToct. (Cites Prov. Act of 1865, chap. 32.) The identity of the defendant and actual marriage havine; btou proved, the couvict*')n will be sustained. 1 Doug, 17 1. Oldright, in reply. The position that there must be stric! proof of the foreign law has not been successfully met. In Massachusetts they have logislation that uo have not 'ore Massachusetts Laws, 1810 },nd 1841. ^Cites 37 Enq. Law A Eq. Bep. 609.) Our. ad. vuU. YoDNQ C. J. now Man. 2, 1867) delivered the judgment of the Court. After stating tho case, and the evidence with fi^gard 'o th. first marriage, his lordbuip said :~-- I more oxplicit, it I C.(f;KAQin; I rriugo was no mar- y.MiUia,! Jurist, Reports, 08. Tho lio first, Boscoeon or banns are in- 13 boon producoij, •y's Offico, which, a facie oviclenco. ;ial Act of 1866, Tho admission of ge and of cohubi Car. (jk Kirwan, I. The evidence >, 217, 218, note, ient. It WU3 not the second mar- ster hero acting th an Episcopal !7.) The license 10 best evidence, in ofibct. (Cites of tlio defendant 3 couvict'')n will o must be strict asluliy met. In have not 'ore. 37 Eng. Law tfc Cur. ad. vult. the judgment of h regard -o tlj. WIOIIAELMA.S TERM, \m\. 877 It is a principle of the law of ovidenco, that, on a proHocu- tion fur bigamy and in actions for ci'lm. loa., tho niuiriuge must be strictly proved. Tho easeit cited at the argument from 4 Burr. 2057, I JVlli Bl. 632, and 1 Dour). 171, and the uniform practice, says Baron Parko, over since those decision, seem to havo settled (we may now iiid d svy h »ve conclu- sively settled) that in actions for c/'tm. . and on an indict- ment for bigamy it is necessary for the | .mtiflf or piosocutor to show what the Courts call a ma)ri;igo in fact — ihitt U an actual marriage, valid, or avoidublo and not yet avoided (3 Inat. 88): and that aokuowlodgmont, ooliabilatioii, and repu- tation, which raise a presumption of a va'id marriage aie not sufficient. Tho marriage, also, if it bo a mirriage abroad, must bo proved to havo boon celebrated according to tho laws of the country in which it took place. These are admitted rules, but the quantity and kind of proof which the law recognizes, it is not qnito so eany to d'jtermino. Proof, according to AtcUbold in his Criminal Evidence, 752, that the ceremony was perlorraod by a person appearing and officiutiug as a priost, and thai it was under stood by tho parties to bo tho mar ' ::^o ceie(noijy, according to the rites and customs of tho foroign country, would be sufficient presumptive evidence of it so as to throw upon the defendant the onus of impugning its validity, and he cites Rex v. Infiahitaida of Brampton, 10 East, 2&2. But this was a c ise of settloraont, to which the strictor rule does not apply, and ..Ithough the law will be satisfied, in this case as in most othei oact upon certain presuraptions, I cannot help thinking that in t"*^ above passage tho learned author has gone further than tl) >9e8 will justify. It must be conceded, I think, that a oreign larriago must be proved to have been in accordance wi. he foreign law, and it was established by the Sussex Peerage Case, 11 CI. & Fio. 85, 134, overruling The Quiti V. Dent, 1 Car. & K. 97, that the foroign law must be proved by an expert — a person peritaa viriute officii or virtuie professionis. It is evident that a failure ofjt ice will often bo occasioned by this strictness. In case of a second marriage, shocking it may be the moral sense of tlrj community, how if the first to be proved which may have tn Tire QtTEBN f ALUS. 01 tho B„bo7 TIhh « » q„e,ti„„, |,„„„ver, more for Iho to^i* 01 detail, t ,0 8„l„miMty ami tl.o perfect go,„l faith of tl.o fir>l "iTt 'L ;;" ""T' "" "'°r '" ""™ '''" '"" p-f i -"« ciont but fer tho «.ln>„„un of tho vith' b.ga.ny u,ude a .tatoment bofuro a juslioo. in «rhich ho o" pre..ly declare,! tha. ho ha,l .narriod hi, ar,t wife,.::!; then present, and .Mr. J. Er»kine left tho oaae .„ tho iX Ob orv,ng that this ,va, not an incantion, station , a7„' .V thout duo attention, but that tho prisoner', ™i„d val directed to tho very point by the charge made agimnt h m on w „ch ,he editor obnerves, in u note, that it isTuUe Zr »; a™i::t"hiZr;- --"t -^ ""^"""« "'-"' p' "o tt^n of'a jury " """" '" ''° '"" '" "'" <"""'''"'- So Mr. aiarkie my, in hi, £„, „/ ^ij 2894, "I have known a prisoner to bo convicted of bigamv upon proof of 7h u'^'r^ife'r r °' ''""' ""'""'«^"'" "'» p--- oi ni9 nrst wile, before a magistrato." Truman', cwk, 1 East's P. C. 470, proceeded on the same principle, though there the admission' was backed by to copy InBfgina v Norion, 2 M. 4 Rob. 606, the Court said '■ De- Clara ions hast ly or lightly made w.re entitled to very little weight ; bu what the prisoner said deliberately and wher t know ,t to be a valid one, was undoubtedly evidence entitled to the very serious consideration of a jury " Now what evidence have wo here ? The prisoner had con- tn.cted a second marriage at Parrsborough under a different piauo oi Henr/ p. AJlan. The on tho other side lore for tho Login. g tho miiiuteness frtith of tho first tho proof inmiffi. . In aid of this by the principal at tho trill, cuuJd itntion and birth ^n admission, not ma of tho canos on Crimes, 218, ig charged with n which ho ex- it wifo, who was 186 It J tho jury, itatoment, niudo Jor'H mind was lo against hirn ; t is quite clear hich u prisoner > the considora- 2894, "I have upon proof of ) the presence J on the same 3d by tlie copy > prisoner and urt said, " De- I to very little y and when it , if he did not donee entitled Jooer had con- ler a different '. Allaa. The MICHAELMAS TKIIM, 1m06. 379 first wife hearing of this pnrsnos him. An old acquaintance who liad not soon him for sovonteon yoars recognizes and accosts him— with some hesitation he owns that ho is tho same man— and when askod what mado him loavo his wifo in the States and marry another woman at Parrsboro', ho does not repudiate tho marriar^'o or allege its illegality,' ho says only that he did not think his wifo would follow him from the States ; ho thought she novor would trouble him, but as long as she had followed him, he would take her and support her as long as they livod. Uero was an admission that satisfied every requisition in The Queen v. Norton and the other cases. It was not hastily nor lightly made— it was made when the interest of tho prisoner was all the other way— and it is corroborated by tho proof of an actual marriage solemnized. A mere admission said Pollock, C. B., 2 Car. d Kir. 783, of the first marriage is not enough— yon must give some evidence beyond it. Here thero is evidence beyond it,8o circumstnntittl and so plain that the objections to a simple acknowledgment no hinger apply, and the first marriage must be held, wo think, to be clearly established. And now as to the second marriage, (His lordship here stated tho evidence as to the second marriage.) This evidence would open a much wider field than we have been hitherto surveying. Thero is, first of all, the question whether the second marriage must be equally valid with the first, on which there are various opinions. Thou would come the far more important question, whether this second marriage solemnized by a Presbyterian minister stands on the same footing in this country as a nmrriage in presence of a clergy- man opiscopaily ordained. On this cardinal point— that is, on the extent to which the common law as it has been de- clared by the House of Lords in the case of The Queen v. MiUia is to be accounted the common law prevailing in this Province— or whether we have the power of limiting its operation as has been done by the Courts of New York, Penn- sylvania, and others of the United States^-these are very large and imoortant aii»Htinna nn vuhlr,u it ic »»».. and would be improper for me to enter, as differences of 880 TIIE QUEEN V. AUJiN opinion exist among ourselves, aod the pioseut .„„« ^-u„ ^e dotorminod on u nu.rowor giouod. Now, it 18 ad.uilfed ll»at case can be with the produclionof Ibo I C0U80,. or with a coililicaie fi OrtJ tU Ciiuirraan of the Doard of S,ti(led for such return of marriage so made, provided it has boon made conformably to h.w. All this has been done, and if the proof of its having been so done h not enough without ft further certificate, it is plain, (hut h (he distant counties or where, as in this case, misapprehension or accidenr, it may be, renders it impossible to obtain this further proof, the cnmo oi bigariiy, so fuUl to the happiooss of the woman ofteu MICIIAKLMAS TER^f, 1800. 881 lent case can be i» ailiuilfecl tlut k ceiiilicaie from evlclouco of this yor, ' 120, uow lopro- plor 28; docluies rd, duly corliliod entry cortiliod, d or cluiiQod iu *o fttciliiios and it doea not muko the facta to be . The priHoner Jould only have 3 ubovo clinpter jond with auffi. dullard and lifty must have cun- los, abodes, and It 1*8 rucoived All the ibruid, Ho rot urns tho after tho ocIr. , purporiiog to uarao and with icate oudorsed lioibtor, staling ud additions of Ij marriago and hoieat bosidoH oipt from the I ho jg out it led d ic liaa been 1 done, and if Dough without itant counties 'cident, it may »or proof, tho ) woQiati ofteu abandoned without canso, and to the good order aud docen- cies of society, will freqnonlly go unpunished. Presumptions wo luivo scon are somellmes admit led in crimiiml as in civil oasop. Iu the Queen v. LonylUe, argued before us in 1SG4, tho first marriage was celebrated by an ordained minister of the Preabylorian body -Ihoro was no proof either of license or publication of bann.^— yet we all held that the one or the other was to bo presumed from the lapse of timo and that the marriage was valid. And why should we not presume upon the principle of om/u*a nVJ a(/a that the public officer who issued, and, alter it was issued, recognif.ed this license, and the minister whoso good faith is unimpoached, dis- charged their several duties as they ought? It is surely a most violent presuroplioa that such a paper could be forged and eacapo tho observation of botli. Wo think, therefore, that thero is sufficient prool of tho liconso having been issued aod returned, and of tlio Bocond marriage having been duly solomnired. The conviction of tho defendant is for those reasons uphold, and DO judgment having been given, wo order pursuant to section 101, chapter 171, Uevised rflatutos, that judgment shall bo given thereon at tho next term of tho Supremo Court at Amherst, tho priaoner; iu the meanwhile^ to be detained in castodv. WiLKiNS, J. intimated that ho had somo doubts whether there was sufliciont proof of tho second marriage having been duly solemnized. Conviction ausiained. Attorney for the Crown, IHanchard, Q. (J, Attorney for tho defendant, Towmheml, OALIBDRTON tiwstbb op the kstatb op GOITEOAN v. DeVVOLFK and OniKHd, AtwiuNEiw oi' COOMBES. January % 18t)7. A Oebufir, oa tiM ^«nd MBroti, im>«, mu\a « liMU ot KMigument In fovof of uU bk crvdiUav who ihoulJ ex«cuto lUo de«,„ 1 7abS^ o^^J'^-T"** L"""" tbo «nou„t of his cWm. The n,rr«6, b«n«I.ir^ ? . "''"*• "**' ''"' ^ry e,pi„„,. ..,u. « «K,„ „ ,^i„. IheSr C JJ; \T 77": "" horitx ,o oomo Into .h. «.|g„™«„t .„, „^„t. ,b. jLTt h„ ' ' '"• lh« oth«r cro,Htr,« r«lWd .o .How him to do J '£1^ L^^ TT*^" ""'' part of the pl«i,„iir „r tbo mnlo, whom W * . ° "^K'W""** on th« »»*n p.i.1. ,h,t ,„ eq„i rthT nhluuSr ">l»«^nC,.l. .„., „„ uiTl.tend h.vin, .h«H..« with th^oS c.^ to'i 1 ;. :r: r""'"". ""'" ~"""« '- •'"• SPKCIAL CA8C Btate^l f..r tlio opinion of the Court »1I H material portions of which are aMolIows -- ' ''"' P il! r I , T"' '*^' ^^ '^'^^^ «^»^^» Surrey County England, docoased and also a guardian undo said will of t^^ I'rocooding, having boon inetilutod in tlio Court of Ci,.„ cory ,n E„gl.„,, to ocn,p„l ^ii oxocn.or .0 aocoZt for hi wl..d, had 1,„„„ .ooeived by |,i,„, t|,„ «,„ou,„, .ftr^wa ?or .iLf:;!.'"""' """"' "»"' -" "»«"-'-'> "e'd in .rust „r« 1 1 ,8"" '^°""'''"' "' H»lif>«on tho 22nd day of March, 1804, an ab.tract of whioh, marked (B) i, hereu Z annoxod and notioo thoreo, wa, duly-'pablinhod i ,„ "C , O».o.te/ at Hahfax, ,f„ro«>id, to tho effect that all oroS w..ln„g to participate in the a..eta o. .aid Wimam Got I iron, tie date ol mi aa»ig»n.ont, an.l all creditor, with tho exception of 1,0 ealate of «id Richard Oohegan did with c the ..me -pecifled in „id notice, execute «id a«ig l^t ' Tho aolicitort of the i)rMlui« am' -f ••.» _.— .". a - T v-s i«„ iiiiUVf vniJureU 01 Otiiriw. » effect that ail creditor* exeoDlr the deed witbia IT, (lid oMHute it within the 2ud June, 1864, for rested wh,. vv,'r.> i^pr,^ plttiDtiff hiamU ty of said will at »nd tiubsoquently ^e sum of XI 500 » Court of Chan- ccount for funds utor aftorwardd i June, 1864, to iolioitors of tho in held in trust ra was executed )n the 22Dd day [B), 18 hereunto I in the *• Hoyal lat all creditors illiam Oohegan n three rnontlis iitora with tho gan did, within wtfiguraent. icwf Oniiurou ol AIICllAKI..MAHTi:i{M, iHWi. 863 Baid Richard Oohogan woro, by lottor