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Un des symboles sulvants apparattra sur la dernidre image de cheque microfiche, selon le cas: le symbols — ► signlfie "A SUIVRE", le symbols ▼ signlfie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand earner, left to right and top to bottom, as many frames as required. The following diagrams Illustrate the method: Les cartea, planches, tableaux, etc., peuvent ttre f ilm*s * des taux de rMuction diffirents. Lorsque le document est trop grand pour Atre reprodult en un seul cllch*, 11 est film* * partir de Tangle sup*rleur gauche, de gauche * drolte, et de haut en baa. en prenant le nombre d'Imagas niScessalre. Lea diagrammes sulvants illustrent la m*thode. 1 2 3 1 2 3 4 5 6 REPORTS OF CASES ARGUED AND DETERMINED IX THJB' *»ft-- SUPREME COURT OYMtimmfigflk INCLUDING THE GENERAL RULES OF COURT, AND REPORTS OF SEVERAL MISCELLANEOUS CASES IN THE SUPERIOR COURTS. BY ALEXANDER JAMES, Barrister, and Official Reporter to the Courts of EguiTr, Common Law, and Vice Admiraltf. VOL. 1. COMMENCING MICHAELMAS TERM, 1853, AND ENDING EASTER TERM, 1855, INCLUSIVE. HALIFAX, NOVA SCOTIA : JAMES BARNES, 179 MOLLIS STREET. 1855. ■^ u 1 TO THE HONORABLE BRENTON HALLIBURTON, CHIEF JUSTICE OP NOVA SCOTIA, WHOSE SINGULAR ABILITY AND STRICT INTEGRITY IN DISCHARGING THE DUTIES OF A JUDGE OF THE SUPREME COURT DURING THE UNPRE- CEDENTED PERIOD OF FORTY-NINE YEARS HAVE SECURED FOR HIM UNIVERSAL PUBLIC ESTEEM, THIS WORK IB BY PERMISSION INSCRIBED A.t ▲ HUMBLE TRIBUTE OF RE9PXCT, BY THE AUTHOR. f'^ Halifax, N. S., DectmUr 31*f, 1855. ^l, BtRivaT^^^ ^^ ^^^ SUPREME COURT CHIEF JUSTICE, The Ho.vorablb Brentoj? HALLiBnarnv Afpcnted Judge of the Supr^.e CourttS. Wy 1807 Appointed Chief Justice 31st January S ASSISTANT JUSTICES, The H0NORAB1.E WituAM BtowERs Bliss Appointed 9th April i834 The HoxoRABtE TH03CAS Chandler Haliburxqx Appointed 1st April 1841. **'^«t'«TOJf. The Honorable Edmund Mcrray Dodd Appointed 19th February 1848 The Honorable Wzllum Frederick DksB^r-^, Appointed Hth November 1848. *^*^*-'' CROWN OFFICERS. ATTOBNEY GENERAL, ppwnted 9th February 1848-Resigned 3rd April 1854. The Honorable William YorNG. Appointed 3rd April 1854.- SOLICITOR GENERAL Ap Ji^^lr^^'" ^=^^^=R McDocgall. Appomted 8th December 1848~Re3igned Sri April 1854. THB Honorable Willum A. Henrt Appointed 3rd April 1854. T«= u QUEEN'S COUNSEL, CASES REPORTED. Archibfild c. Blois. - - . - Bank of British North America v. Keith. Bnnk of Nova Scotia i<. Haliburtoii. Bnrnaby v. Gardner. - - . . Ib^ lb. - - - . Bauer v. Gunn. .... Betts V. Ackerly. - . . . Biesett r. Cordeau. .... Boutilier r. Harshnian. Brennoclt v. Fraser. . . . . Brown v. Wallace. .... Caldwell I'. Kin:?inan. - - . . Church Wardens at Parr»borough, ike. r. Davison. Cobb r. Turner. .... Collins V. Story. - - . _ Copp V. Etter. - - - - - Creighton r. Daniell:?. ... lb. lb. - - - " Creighton v. Union Marine Insurance Company- Cripps V, Marriott. -.._-. Crown Officers — appointment. Cunard v. Irvine. .... Cutlip V. Cook. - - . . Dale r. Ship " Telocity." ... Davison r. Kir.sman. lb. lb. Delap r-. Foster. . . - - Dilll V. Wilkins. .... Doane r. McKemiy- Donovan v. Mahar. . . . . Druimnond v. Carritt. ... Embree v. Dixon. - _ . . Emmea r. Taylor. - - - . Etter V. Copp. - - - - - Fairbanks v. Union 3Iwine Insurance Company. Falconer r. Sawyer. . . - . Ferguson v. Hyde. - . - - Fleigher v, Taylor. . . ., - Forsythe v. Oriffin. . - » 307 AG 350 107 30G 337 157 344 338 178 2C4 398 106 332 141 304 <( 347 195 266 182 31 445 390 1 69 335 113 328 91 268 326 444 344 271 277 334 187 241 •^ <»^ CASES REPORTKD. 111. Frnsor v. Cameron. Frencli v. Wullnce. Furlong v. Cooper. - Gerrior v. Dickson. Gesner v. Halifax Gas Gillis V. Campbell. Graliani v. Lnpierrc. Ilaliburton v. Molloy. Hall V. Carty. Hardy v. Fairbanks. Haydon v. Dunn. - HefFernan v. Lacy. Holland i'. Bovyer. - Hutchinson v. Witliam. •Tolmson v. Ross. Johnston v, Brenan. lb. lb. . Johnston v. Mathcson. Jones V. Williams. - Keith V. Hadley. Keith V. Tremain. - Kerr v. Nelson. Koch V. Dauphincy. Landry v. Jones. Mayhew v. Fen. McAlraont v. Boudroit McDonald, A. Estate of. McDonald, C. Estate of. McDonald v. McDonald. McDonald v. Sutherland. • McDougall V. Geldert. McDougall V. McDonald. . McDougall V. McDonald. McGilvray v. Gibbons. - McGilvray v. Mclsaac. McKay v. Hamilton. McKenzie v. Robertson. McKiunon v. McDonald. - McNair v. Munro. - Melancon v. Comeau. Mooney v. Bossoni. - iVrurdocIj V. Hughes. I\rurdoe!i r. Pitts. - Nugent V. Crosskill. • ^ " ' . • 189 " • ; 887 • 181 Company. 445 72 " • a 189 246 379 432 256 • • , 267 " a a 45 387 - 446 14 177 92 803 176 177 57 159 341 108 838 123 342 41 868 59 91 - 969 1^ - 15« 168 - 234 7 • 340 ■ ^ 373 " M 254 " - 388 " m 258 • m - 151 ■HI iv. D'Brien v. Youn^. CASKS REPORTED. O'Connor r. Fi.slicr. Dvcrsecrs of Poor r. IJryson. Phnilen V. Pliailon. lb. lb. - Poneia i ". McDonnell. Priest f Itussdl. - Purcell V. Burko. Queen v . I'.clyca. .< f . Hendry. " V llcu.slis. " r . Kinsman. " V . Martin. « I. . IMurphy Rimes v O'Brien. - Ring V. Bronnn. Roberts r. Patillo. - Rules of Court. Xussell V. Marshall. - • Salter v. Hughes. Sco!t V. Angus. Seaman t'. Campbell. Shey V. Chisholm. - Skinner v. Lane. lb. lb. Smith V. ISIaxner. Smith V. McKcnzic. - Stalker V. Wier lb. lb. Staples f. Taylor. Steele r Fife. Stephenson r. Dulhanty. - Tobin V. O'Neill. - Trenholm v. Trenholm. - Tupper V. Wright. - Uniacke r. Dickson. lb. V. Gardiner. Wilson V. Lyle. Wooden V. Bushcn. - Woodworth v Withrow. - 75 2C9 158 118 184 55 58 884 220 105 101 68 322 158 448 20 367 HO 880 248 183 94 52 283 247 341 228 107 248 820 188 339 60 106 803 287 59 183 429 105 IMlKlACi:. II.\Vl\<; li:iy Ihi- iinhlii-utiou ot'ii scries ol'.Iutli- «'iiil lieports. IJiit as the undeflaiving, in adilition to the h)ss of tluie "ikI exertion wliieli 1 euuld ill spare from other jirofessioiial euf^nge. i iits, would neeessarily iiivohc a imcuniary saeriliec of no ineonsidcrablo uniount, 1 was eoniptlad to await tlio period wlieii the Legislature should cons! 1' f it expedient for the puhlie interest to aid the under- takinjj;. An annual sum sullleient to protect the publisher from actual pecuniary loss, liavinj;; been appropriated to this object during the last session of the Legislature, that objection no longer exists, and it is hoped that in future, the publication of Reports will receive from the Legisla- ture and the public that liberal measure of sup[iort which alone will au- thorise their continuance in a nseful and creditable style. Judicial Reports have existed in England from a very early period. The decisions of the Superior Courts, from being originally mere expo- sitions of the Law, have gradually and imperceptibly accpiired, within certain well defined constitutional limits, the authority of statutory enactments, and have grown into a cultivated system of Jurisprudence, eminently adapted to meet the wants of a highly civilized community. This system is the Connnon Law of England. It supplies, in a practi- cal form, rules for the external conduct of public and private men, in all the varied relations into which they are brought by the operation of the social system. Although subject to alteration by Legislative enact- ments, by which it has in many instances been largely moditied, of those enactments it is the authoritative exponent. It defines the jurisdicticu of the various Courts of Jurisprudence and of the Legislative bodies, establislies the form of Government, dechu'es and maintains many of the most important constitutional principles, and aids in confining within jn?( niul reasonable limits oven tlic l'rero!j-;ili\("- i>r ihc ('mwii, Vvi VI. i>ri::kack this comprehensive system, which not only regulates the iutercourse of the population of England, but forms the basis of the juridical system of every liritish Colony throughout her vast dependencies, is founded in no anti(|uc code, nor is its substance embodied in any series of sta- tutory enactments, or Royal Charters. It mainly consists in the actual decisions of the Courts of Justice, reported from time to time by men of learning ami ability, and condensed, and moulded into form and system, by lawyers of the highest genius and industry. The English Juridical system, in this respect, partakes alike of the two grand peculiarities of the British Constitution ; its gradual, and as it were spontaneous development, out of the wants and the energies of a race of men in all ages remarkable for their spirit of sturdy freedom and steady inxprovement ; and its admirable adaptation, in spite of many theoretical anomalies, to supply the necessities and protect the rights and liberties of the people. The system of Judicial Reports, thus fully developed, ha.s not only been productive of the most extensive advantage in the Parent Country, but it has been transplanted with the greatest success into the various Colonies which she has founded, as fast as their growing intcllir gence and increased resources have justified the expense of publication. In Canada and New Brunswick they have been long supported and have now become a settled and indispensable portion of the Provincial Institutions. Throughout the United States they have been very ex- tensively adopted, and carefully sustained. The English cases are contiuually cited in the Courts of the United States, and the American decisions are not only frequently employed with effect to influence the decisions of our Provincial Courts, but are cited with approval at West- minster Hall. But the excellence and accessibility of the English and American Reports, by no means render unnecessary the publication of our own, because a very large proportion of the cases which arise in this country are founded on our local statutes, or arise out of our own peculiar institutions and circumstances, and are capable of illustration, if at all, only to a very limited extent, from the decisions of foreign tribunnls. The value of Reports of our own decisions will, it is presumed, be bet- ter understood by an examination of the ensuing pages, than by any mere theoretical argument. But there are two leading considerations PREFACE. ▼li. bearing upon thia subject, to which I may with advantage briefly ad- vert. 1 Every decision of the Courts upon a question of law, settles a point in dispute between individuals ; and it is important that the people, who pay very liberally for the support of our Judicial institutions, and who are very deeply interested in the due administration of Justice, should have an ample opportunity of judging whether the law is administered with ability, and with an even and impartial hand : and on the other hand, it is reasonable that those who are engaged in the administration of Justice should have their proceedings fairly reported to the public, as they may thus be protected from many misapprehensions, arising from the natural disappointment of suitors, and other causes, and which would frequently be obviated, were the decisions of the Courts published, and thus submitted to the calm and dispassionate reflection of those, whose interests have been, it may be, seriously affected by their proceedings. It may be anticipated with confidence, as one of the prominent advan- tages of this undertaking, that by bringing the proceedings of our Courts more directly within the influence of public opinion, it will tend to fos- ter and preserve a good understanding, between the public at large, and those engaged in the administration of the laws. But by far the most weighty consideration in favor of the publication of Reports, consists in the fact that each decision, besides settling tho individual matter in dispute, exercises a prospective influence in pro- ven ting future litigation upon the same point. The uniform and inevi- table tendency of Judicial Reports is to diminish litigation, with all its evil consequences, by making every contested and decided question of law, a guide to men of every class in the ordinary transactions of life ; t(i prevent their running into needless litigation, to warn them against dangerous and imprudent transactions, and to give them security in the acquisition of property, and in all the other varied transactions of life. A firm trust in the uniformity of the Judicial decisions of a country, not less than in the stability of its political institutions, is one of the most important and indispensable elements of public prosperity. All confi- dence in entering upon, and all energy in conducting those enterprises, out of which springs a people's wealth, are based upon the uniformity, as well as upon the abstract justice of the decisions of the Courts ; and this uniformity can only be obtained by recording and prescn-ing those do- HB • •• Vlll. PREFACE. cisions, and thus making each of them a guide to the settlement of dis- putes wliieli may subsequently arise. With these remarks I submit the following pages to the indulgent consideration of the Legislature, the Profession, and the Public, upon whose liberal support the continuance of the undertaking must depend. I have spared no exertions at all consistent with my other avocations to render the reports as accurate and useful as possible ; and although sen- sible of the importance, and not unfrequently the delicacy, of the duty I have been called on to perform, I am assured that the work will re- . ceive an impartial, and even indulgent consideration ; nor need I doubt that due allowance will be made by all parties for defects, arising from the difficulties necessarily attending a new undertaking. It is presumed that the Legislature, at its next Session, will make adequate provision for the continuance of the publication, in which case an index will be issued with the second or third annual number. I have to acknowledge the uniform courtesy and attention of His Lordship the Chief Justice, and the other Judges of the Supreme Court, in furnishing me with their written decisions, and otherwise facilitating my labours as far as possible ; and also the ' 'ndness of His Honor the Master of tlie Rolls, in handing to me, at my request, a number of valu- able decisions in Chancery, one only of which I am enabled to publish in the first number of this volume. The cordial co-operation and en- couragement of my professional brethren without exception, and when required their valuable assistance, alio merit my warm acknowledg- ments. ALEXANDER JAMES, Seporter. Halifax, Decemoer 31s<, 1853. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE PROA^INCE OF NOVA SCOTIA, . EASTER TERM, 1853. DAVISON V. KINSMAN. April 8, 1853. Where parties liolding adjoining lands meet upon the land and fix a boundary be- tween their lots by verbal agreement, such agreement will be binding upon th«ni, notwithstanding the boandary agreed upon may vary from the deeds or plans by which the paities hold. This was an action of trespass quare clauaum f regit, tried before Ha- liburton, J., at Kentville. It appeared from the evidence that four bro- thers, John, Samuel, Harry, and Arthur Cox, purchased a certain quan- tity of upland and marsh from one John Belcher, and employed a sur- veyor to divide it for them into lots, who surveyed and divided the up- land but not the marsh. A line was made dividing the upland belong- ing to the lots laid oif to John and Arthur Cox, at the end of which the surveyor fixed a stake. From tnis stake the parties themselves subse- quently sighted and made a line of divisi» Cox sold his lot to James l^upper, but Samuel Cox, who afterwards became the owner of two thirds o*' the land purchased from Belcher, in- cluding JohnCox's lot, executed a deed to ?'M/y»cr of that lot, on the 2nd of March, 1842, containing tlic f?ame boundaries as mcutioucd in (lie mmmm 4 DAVISON i: KINSMAN. deed of partition. l\ipper convoyed the same lot to Elijah Loomer, by deed dated 24tli March, 1845, and Loomer conveyed to the plaintiff by deed dated the first of April, 1852. The defendant claims under a deed irom Arthur Cox, dated 2Gth February, 1842. The learned Judge told the Jury that according to the boundaries mentioned in the deed of partition, and from the manner in which the plan was dmwn, it would appear that the legal title of the locut was in the defendant, but thai there was evidence of a conventional line between the parties which they bad a right to establish as a boundary if they thought proper, and if ^o established and acted upon it was obligatory, and left it to them to say whether any such line Avas made juid acquiesced in or not. The Jury found for the plaintifi!! and a rule nisi was granted to set the verdict a- tiide, at the argument of wbich, in last Michaelmas Teinn, several point» were taken ly the defendant's counsel, viz : First. — That the learned Judge misdirected the Juiy. Second. — That the verdict was against the evidence. Third. — That fraud was practised on defendant, who was ignorant of the line. Fourth . — That a conventional line, where there is a deed, can only be set up where there is a latent ambiguity*. The Court now delivered judgment. Haeibuuton, C. J. It does not appear to me as clearly as it did to my brother at the trial, that the deed of partition does give the hem to ihe defendant, but admitting it to be »^o, if his directions as to the con- ventional line, as it was termed, were coi'rect, the verdict must be sus- tained. Tins briiTgs up for our re-consideration a grave question, wh' h was decidetl by the whole Court after argument, in the case of Woodberry v. Gates — Avhether after adjoining owners of land have agreed upon and ad- justed a boimdary between them upon the land itself, it is open to either of the pai'ties, or to those who claim under them, to dispute the bounda- ry and shew that it does not correspoml with the deeds nnder which they respectively hold. Although the case of Woodbeny v. Gates was more fully argued than any that preceded it, owing to the extent to which the principle was then carried, yet that princi[)le has been upheld in this Court as long as my memory extends ; and had it not been so upheld, the consequences would have been most mischievous. It is notorious that in the early settlement of this Province few of the descriptions in grants or deeds * This abstract of tho facts formed the introduction to the written opinion of His Honor Judge DesBarrcs, from which it is extiactcd. A sketch of the argument in frtvor of the rule was kindly furnished by L. M. Wilkins, Esn., Senior Counsel for defendant, but clrounistances prevented the Reporter from obtaining the argument against the ralc; '.ad therefore it is icluctantly omitted. EASTKK TER^r. IS'.n. ti were made from actual surveys. The surveyoi's residing in the coun- try were but few, and those lew not remarkable for their aclcuracy ; nor could a large portion of the settlers bear the expense of employing them. In fact, the actual location of those settlers was almost a matter of guess- work ; but they did locate themselves on what they supposed to be the lots granted or conveyed to them, and adjusted their boundaries with each other ns best tlMjy might. "When at the termination of the Ameri- «in Kevoiuti«n tire Tjoyalists removed in great numbers to this Pro- vince, many sur\-eyors of much higher attainments than those I have alluded to accompanied them, and soon discovered innumerable mistakes in boundaries which had been adjusted between adjoining owners. This would have produced a fiiiitful field of litigation had not the Court upheld the principle that Avhere the parties had mutually estab- lished the boundary between them upon the land tliey shoiilc be bound by it, unless it ist not persist in error. It is urged upon us that land is hold by deed, and that it is contrary to the statute of fmuds to uphold a conveyance of land which is not in writing ; — thi" T also admit is indisputable. If one of two adjoining owners of land agrees to »cll or to give a iK)rtiono intention of selling to or buying from each other, but wish that the boundary between them should be established that they may build or cultivate with safety, tliey may call in a Surveyor to measure tJteir lands ; or they may agree to leave it to two or more of their neighbours to adjust the Hue ; or they may settle and adjust it between themselves ; and this may be done with perfect good faith. No deeds or conveyances are necessary ; they have al- ready their deeds by which thoy hold their respective properties. — This is a thing that must be done upon the land — no wi-iting can be it KINSMAN i: DAVISON. substitute for it — ^but whether it is done by nx-asurement, by reference, by agreement between themselves, like all things else it is liable to mis- takes. Surveyors sometimes make mistakes. Referees may make mis- takes, and so may the parties. Can nothing, then, short of twenty years' actual possession by such » line, render tlie parties secui'c against the consequences oi' such mistakes ? Can it be open to either of the parties after one may have built on or cultivatetl the land to dispute the cor- rectness of the line, and to run another which in its turn may be dis- puted ? "Where is all this to end ? I can see no end to it but by adher- ing to the principle that where a line has been settled and adjusted in good faith upon the land, neither party shall be permitted to (tispnte it. I will now advert to some authorities which appear to me fully to sus- tain this princi])le. 4. Starkie on Evidence 28. " If a representation be made of nny fact with a view to influence the conduct of another, or to derive an ad- vantage to the party, and which cannot afterwards be denied without a hreach of good faith, such an admission will not only be evidence of the i'act, but will usually jn-eclude the party who has made it from insisting npon the contrary. In such cases the admission does not operate mere- ly as pres^imptive evidence of the actual truth of the fact, which must f/ire way to positive proof of the contrary, but preclutles, and, a'* it were, estops tlie party on grounds of policy from repudiating his own repre- fjontation, and renders the actutd truth of the fact immaterial." So I say if an agreemcMit is made; between; A- and B that a certain line marked upon the laiul sluUl be the boundary between them, it is an admission that that line is tive boundary; and liotli arc precluded from disputing that fact unless some advantage was taken by the one over the other. It was upon a similar i)rinoiple that the case of .Doe v. Rfpev, 3 East l.") was decided. There llie partitas in a prior ejectment had referred thf niiitu-r in dispute by l)onds ol" arltitration to referees. They decided against llie defendant, who. stlQ kept possession of the premises. Tiu^ lessor brought a second actiun, iu. which the d<'fendant olfercd to go in- to exidcneo of his title, but the learned Judge (^Ar/i/vf/zceJ rejected it, considoiing him as preeluded frouj disputing the lessor's title, by tlui award to wliicli tiio present parties had bound themselves to submit. — On a niotit>n f(H' a rule 1'ur ji new triitl it wms refiis;'d by tlio C'mirt, wIkv said "'I'lii' award cannot have the operation of conveying the land, but tliei*e is no reason why the det'eiidanl nu\y not conclude himself by his «wn agreement from disputing (lie title of the lessor". Now if a party can thus allow the act of another to precliid<.' hiui, f-uroly he ought to be precluded by his own ai-t. Tlie view taken by the Court in that case '•that the award could not have the operation of conveying tlio land", puts an end to all the t'orinidalile ditlicultics wliii'h hnve been raised up- uu the statute, of frauds. \\w\\ of the adjoining owners hold their K ASTER TERM, 18;':]. respective adjoining properties by their legal titles, but having in good faith settled the line of division between them upon the land, neither shall afterwards be permitted to dispute it. I will not shock the ears of my Black Letter brethren by declaring that they are estopt from disput- ing it, lest I should sink under the weight of wax that such a declara- tion might heap upon me. Tlie less technical phrase used by the Court in Doe v. Jioper will accoin]>lish all that justice requires in such cases, and I shall merely repeat in this case wluit was said in that, thei/ are con- cluded Inf their agreement, and precluded from questioning the correctness of a line of division thus adjusted. I am quite aware that some gentlemen of the profiission, for whoso opinion I have great respect, entertained strong doubts of the soundness ©four decision in the case of Woodberry v. Gates. Wlien that case was first tried betbre me at Annapolis, in 1844, 1 find on referring to my mi- nutes that I told the Jury " that parties might certainly settle their boundaries by mutual consent, and when the fact was clearly establish- ed they would be mutually bound by it ; that such agreements were usu- ally made v,'here small portions of land were in dispute on each side, and were generally applied to tlic straightening of a line or a fence; that where the boundaries claimed by each respectively were, as in that case, half a mile distant from each other, and the ])arties were disposetl to compromise by rumiing a line, or agr(!eing to a boundary that would give half the disputed land to each, it would have been more prudent to have executed mutual conveyances and releases to each other, than to have rested upon a verbal agreement : still, if such agreement were sa- tisfactorily proved, and the parties had subse(iucntly held by the line then agreed upon, I thought it would not be open to those claiming un- der either to disturb it". Tiiis view was finally upheld ])y the Court, and I do not see how we could have dctennined otherwise, unless we held that the rules of law which are a])plicable to a small quantity of land vary from tho.-e wiiich apply to a larger. I think tliat those who were startled by tiiat decision would aciniiesfo in it it' applied to tlie streets of a tovrn where every foot, nay, evory inch, is usually built up- on. If the owners if two town lots measured the from of their lots pre- paratory to building \\\w\\ tliom, and agreed ujxin their boundaries, and after o\w. of tlK'ui had put up an expensive house the other should sav, '•Oh! there is a inistatce. 1 find upon measuring from the corner of the street I should go four or five feet farther, and your hou*e is built to that extent ui)on my lot". I think the application of this principle in a case like that would shock no one, ])rovidcd there had been no de- ception practised in running the former line. I apjdied tiiis princii)le quite as broadly in the case of Stalky. Sweet, tried before me at Windsor. '\n 1840. There the defendant had pur- chased the, land he hehl from the then pi-oprietor, and the description in KIXS^fAX r. DAVISUN'. his deed commenced at the N. W. corner of that proprietor's lot, — the vendor pointed out that N. W. corner ujion the hind, and gave the de- fendant possession accordingly. lie proceeded to clear and build on the land. After some years the plaintiff, claiming by mesne conveyances under the former proprietor, brought an action of ejectment against the defendant, and attempted to prove, by more recent surveys, that the N. W. corner lay further to the Northward, and thereforo the defendant's deed did not include his buildings and improvements. I told the Jury that the former proprietor having sold this land to the defendant and put him into actual possession of it, as lying at the N. "NV. corner of the lot he then owned, neither he nor any one claiming under him could dispute that fact against him. The Jury found for the defendant. Mr. Johnston was concerned for the plaintiff in that case, as he M-as for Wood- herry, but he never moved in it, and the defendant to this hour remains in possession. It may be said that in that case the plaintiff was estopt by the deed. Not so. If the plaintiff's admeasurement was correct, the deed com- menced at the N. W. corner at some distance from his possession, and would have denuded the defendant of all his improvements. The plain- tiff was precluded from questioning what hod been done upon the land by him under whom he held, and upon that ground the verdict passed in defendant's favor. I therefore think that the Jury were propei-ly instructed in this case of Davison v. Kinsman, that the evidence warranted their verdict, and that the rule to set it aside should be discharged. Bliss, J. concurred in the opinion of His Lordship the Chief Justice, but was also of opinion, upon a close analysis of the evidence, that the le- gal title was in the plaintiff, and that therefore, the question as to the conventional line did not necessarily arise in the case. As His Lord- ship's opinion is almost exclusively founded on the facts of the case, its insertion is deemed unnecessary. DesBarres, J. I think the case was properly submitted to the Ju- ry by the learned Judge. The question is, whether the former proprie- tors, John and Arthur Cox, did or did not make and establish a line of division by Avhich they agreed to hold. If any such line were made, as from the finding of the Jury we must now believe there was, the parties themselves, and all those claiming under them, were bound by and pre- cluded from disputing it. It is a principle which I regard as settled in this Court, that the owners of adjoining lands may fix and estabiisli their boundaries upon the land, which when done shall be binding even though the boundaries so fixed may not precisely correspond with the lines in their patents or deeds. Veiy many persons in this Province hold their lands bv lines so made wiio consider tiunnselves safe under tlic sanction EASTER TERM, lHoS. whiclt the Courts have, from time to time, given to tliem. Now thera id not only abundant evidence tliat John and Arthur Cox i^ade a divi- Hion of the marsh and established a boundary there between themselves, but there is also evidence that the defendant himself, from the time he became the owner of Arthur Cox's lot down to a recent period, has al- ways recognized the boundary line of the marsh by mowing up to it from year to year on the one side, as I'upper and Loomer always did oo the other. The soundness of the doctrine held by this Court is questi- oned by the defendant's Counsel, who contend that the effect of it would l>c to transfer titles to land without deed, in contravention of the statute of frauds. I think, however, there is a wide distinction between au net which transfers a title and one which, as in this ea^e, merely fixes a boundary between persons havmg a title. John and Arthur Cox did nothing more than adjust their own boundary. They in fact did noth- ing themselves but what they might liave authorized a surveyor or ar- bitititors to do for them, and surely an act done by themselves cannot be less binding than an act done by others by their authority. There b no evidence of any fraud practised by Samuel Cox, or the defendant, in settling this conventional line, nor is there any evidence from which it can be presumed that the defendant acquiesced in it in ignorance or through any misapprehension of where it was or ought to be. I am therefore of opinion that there is no ground to disturb the ver- dict, and that the rule be discharged. DoDD, J. Avas not present ut the argument. Jiule discharged. Counsel for plaintiff, Mr. Whiddeu. Counsel for defendant, L. M. Wilkins, and C. Harris. Its jgh in leir ion LESSEE OF McKINNON v. McDONALD. April 6, 1833. The fact of the lessor of plntniiflf having failed to record his deed for Beventeen years, together with acts and acknowledgments by him inconsistent with his title, subsequent to the making of the deed to him, are evidence for the Jury against its validity as n bona fide conveyance. A defendant in possession, under an agreement to purchase the land from a third party, may defend his possestiun by shewing fraud in the deed under which the les- sor of plaintiff claims. Where the defendant goes into possession of land ns tenant at will under a third party, but upon the invitation and with the concurrence of lessor of plaintiff, he is entitled to a demand of possession before he can be ejected. This was an action of ejectment tried at Port Hood in June Term, 1852, before His Honor Mr. Justice DesBarres. It appeared by the evidence that the lessor of the plaintiff*, Roderick McKinnon, and his brother Mnlcolm McKinnon, had about 1822 gone 8 McKiNNON I'. Mcdonald. I into posscssiuu of two adjoining lots of 200 acres each, which were sur- veyed to them about 182 i, but liad not been granted by the Crown. In 1829, Malcolm, being threatened with an execution at tlic suit of onu Kavanaffhf conveyed his lot to Roderick. There was no proof of consi- deration for the deed except Malcolm's acknowledgment at tho time tho deed was executed that he owed Iiis brotlicr more than tho considera- tion money of the deed. Tliis deed was dated July 30th, 182!), but was not recorded until June 11th, 181(5, immediately before the commence- ment of the action. Malcolm McKinnon remained in possession of tho land mentioned in the deed until the period of his death in 1836, after which the plaintiff proved that he had been in possession previous to tho defendant's purchase. The plaintiff also relied on an offer of tho defen- dant to settle with him after or about the commencement of the suit. The defendant pi'oved that after thed eath of Malcolm McKinnon, his widow, with the knowledge of plaintiff, let the place for three or four years to different parties, and among others to the lessor of plaintiff', who was sued by her for tlie rent, and who sold a cow to pay the amount of her judgment. That tlie defendant subsequently purchased the lot from the widow, and paid her a part of the purchase money. That lessor of plaintiff sent for the defendant to come and buy the land from the wi- dow ; that he assisted defendant in hauling his goods from the shore to the premises ; that he, with other neighbours, assisted him in erecting his house and btrn, and that he recognized the line fenc*. between his farm and the lot in question as John McDonald's line, and the land as John McDonald s land. It appeared also, that previous to the bringing of this action the defendant petitioned the government for a grant of the land, that the claim was referred to the Land Board for the County of Inverness, and that the lessor of the plaintiff appeared before the Board on behalf of the widow of Malcolm McKinnon, and opposed the grant without claiming the land as his own. The defendant also relied upon the deed not having been recorded for so long a period, and upon its being a secret transaction, as addition- al evidence, coupled with the other acts of tlie lessor of the plaintiff, to shew that the deed to him was not intended to convey title, but merely to protect Malcolm from Kavanagh's judgment, and was therefore fi'audulent and void, and also that the defendant having come into pos- session with the concurrence of the plaintiff, was entitled to a demand of possession before he could bo ejected. L^pon the first of these points the learned Judge, who tried the cause, directed the Jury that as the defendant did not claim under any subse- quent deed, he had no right to complain of the want of consideration in the plaintiff's deed ; and as to the second point, he left it to the Jury to decide whether the apparently inconsistent acts of the plaintiff might not by explained by supposing that a portion of the land had been set off to KASTER TKRM. 18J;5. his as tlie willow a^ lier dowor, and that the rent paid to the widow by tho Les- sor of plaintiff' was for tliis portion of the hmd, and he directed them, in case they considered tliatthedefundant went into possession of tlie dower under tlie authority of the widow, tliey ought to find for the plaintiff*; but if they thought ho went into possession of plaintitf's portion of the land with his permission, he might he considered as a tenant at will, and was entitled to a demand of possession ; and as no such demand had been proved, in case that wci-e their opinion, ho directed them to find for the defendant. The Jury found for the plaintiff*, and the defendant filed bail under the Statute, and obtained a rule nisi to set aside the verdict and grant a new trial, on the following grounds ; 1st. That the title to tho lands in dispute, and the right of entry were proved by the admissions of the lessor, and other evidence, to be out oi" the plaintiff*. 2nd. That the proof of payment of rent to the widow by the lessor, and hia tenancy under her, subsequent to the origin of the title on which he relied in the suit, barred him from recovering from the defendant holding under her. 3rd. That the defendant was proved to have entered upon the prcini- eea at the request and with the consent of the lessor, and the defendant's possession and right therein were afterwards repeatedly recognized by liim, and therefore that the lessor could not sustain this action unlcsn previous demand of possession, or notice to (piit, wore proved. 4th. That improper testimony was admitted. 5th. That tho verdict was against law and evidence. This rule was argued in last Michaelmas Term. James, In support of rule, argued upon the first i)oint, that as tin-. plaintiff* relied on a mere prior possession of the land in Mulvuhn McKinnon, he had defeated the presumption of title, whicli iui.-c^ from that possession, by shewing lliat, in fact, the land hud iievi^r been granted. Formerly the plaintliF was bound to rely on tho strength of his own title, and if this were in)perfoct or iniporfoctly proved lie could not recover, but of late the courts had relaxed tliat doctrine, so far as to hold, that the fact of the lessor having been in possession prior to tlie defendant's occupancy, constituted a presumption of title in him. liu! this was only a presumption ; and like all other ])re3umptIons, ca- pable of being negatived by proof of the fact. The courts had never lield in any of the recent cases that the lessor could recover without ii title, but only that his prior possession constituted |)resumptive evidenc<' of title. In this case it v/as proved that th(! land belonged to the Cnnvn, which rebutted the presumption of title in the lessor, and therefore he could not recover. 10 MtKiNNON V. McDonald. 2nd. and 5th. Tlio deed from Malcolm \o Roderick wiw evidently in- tended as a cover and not a» a bonajfde conveyance. Not only the n»r- mcrous nets nnd ndmlHsions of the lessor, but his omission to record llie tlced, nnd the secrecy with which the tmnsnction wns veiled, wore nlono strong nnd almost conclusive evidence of fraud. It is not con- tended that a deed once executed in f^ood fiiith can be vitiated by care- less acts or loose declarations of the grantee, but when the ythdle con- duct of n party for seventeen years was inconsistent with his title, it is evidence of fraud in th« original transaction which is almost conclusive. That defendant was not a wrong doer, but his possession had been re- cognized by the lessor of plaintiff, and having a lawful possession as a purchaser, he was entitled to defend it by nil the means which he migitt nse if he were defending liis title. Srd. That the defendant was at least entitled to demand of possession, as, if the land were the plaintiff's, defendant was clearly his tenant at will, and he could not be turned out without demand of possession, Lew- is V. Beard, 13 East 210. And this defence may bo set up by a party who, at the same time, disputes the lessors' title, Newoff v. Jackton, 1 B. and C. 454. i'l Tomiff, Q. C, shewed cause. Here the plaintiff claimed title under a deed from a party who was in possession of the land under survey from the Crown, and having been proved to tl»e sotisfoction of the Jury to have been in possession of the land nrfterwards did not come into court Avith a mere presumption of title. Tlie title was at least admitted by Malcolm, under whom both the plaintiff and defendant claim, and there- fore the defendant cannot dispute the title of plaintiff. It was also proved sit the trial that Malcolm admitted that he was indebted to Roderick to more than the amount of the consideration. The consideration wa» therefore proved in tlie best way it could be proved, and in fact it is in- disputable, and there being a deed of the land to the lessor of the plain- tiff for a valuable consideration, his title cannot be prejudiced by subse- quent admission!. Tlie deed was witnessed by two of the most respect- able parties in the neighbourhood, one of whom was a Justice of the Peace and tlie otlier tlie Sclioolmoster. There surely could be no se- cresy in this transaction. With respect to the subsequent admissicms and acts of tlie lessor of the plaintiff they were befor« the Jury, who formed tlieir own oi>inion upon them, and we cannot tell how far they were in- fluenced by the manner in which the witnesses gave their testimony, for we have on tlie minutes the fact that the defendant's witnesses swore they would not believe each other. But tliis is all explained if we consider tliat tlic widow had an interest in the property, and that nothing is more likely tlian that slic was allowed 100 acres for her share, which she rented for a lime, and then sold to the defendant. TWs supposition ex- EASTEU TKUM. 1853. n Itluiiid tliu whulu tuiiliinoiiy. TItu iK't'endiint did not ])(iy tliu bulaiu'ti of tke piirchiise money, nud on tliia account when ho petitioned tor lOO ncrcs of'tiic land, tiio Lessor iind tlie widow opposed his petition. No (leiniind of possession was necesmry in tiiis case, because tlie defendant did not take tlie land fron\ tlie lessor of the plaintitf but from a third {tarty, luid therefore tlie defendant, if tenant at will at all, was tenant to tke widow, and had no right to notice from the lessor. These wer« purely questions for the Jury, and they having decided them their ver- dict ought not to be impeached. JohtutoHf Q. C. in reply. It is a mere assumption that there over WAS n division of the lot. This idea seems to have been on the mind of the learned Judge who tried the cause, for we And it in hid charge. There is no foundation in the minutes for such an assumption. There is not a word said by the witnesses as to a division, nor does it ap- pear that the widow ever claimed dower. The defendant did not come to the land as a wrongdoer. He was invited by the plaintiff. How cpi we infer that he was only invited to occupy a part ? The lessor J plaintiff assists him to build a house and recognizes the lino fence. I ad- rait that defendant did not come in as McKinnon's tenant, but if he re- cognizes his possess!' i first by inviting him to come, and afterwards by such unequivocal acts, while his own deed is mouldering in his chest, and not recorded from 1829 to 1846, is not this a case requiring at least n demand of possession ? Malcolm had equities under the survey from the Crown, but no legal title. The Crown cannot be disseized, but if it can, the deed in this case is not such as would work a disseizen. It is only a quit claim deed and only purports to convey Malcolm's interest. It therefore only gives plaintiff an equitable title, and surely there are equities on tli« defendant's side also. The whole of the testimony is opposed to the po.*- .sibility of the land being the property of the plaintiff from the date of the deed until the day it was put upon record, and the action commen- ced ; while it is clear that McDonald came in under an agreement made with the knowledge and concurrence of the lessor of the plaintiff. T''..; verdict can only be explained by supposing that the Jury were intiucn- ced by the idea of a division of the property, which, in fact, never took place, and by an undue respect for the deed which, in this case, is not only informal, but which, if tainted with fraud, is no more than a letter or other piece of paper. The Court now delivered judgment. Hallibuuton, C. J. No motion for nonsui' appears to have been made at the trial on the ground of the want o. demand of possession, to which I think the defendant was entitled, as the lessor assisted to put McKTNXOX *. MuDOXALD. liim in jm^srssloii. I (li> not llierefore dccidu upon that plied l;> the Land IJoard for a grant of this land, tlie widow resisted his claim, upon the ground tliat he had not paid her all thi' iMU-vlitise mone}', tliough M was admitted that he had paid lier a part of it. That tlie lessor of llie ])laintiif sustained the claim of tlie widov,- to gi't a grant for hersidf and her son, who was then living, and mii'l' no claim lor himself although this took place many years af- Ifr the dci'l \v;;s (>x('c'iit(>d in I.S2'.), upon which he now founds his claim, 'i'liat deed v, ;\s r.o' rtgistercil until IcSKi. It is true tlial all these clreuriistance.s were fur the consideration of the -liiry. li'ul they li.r.e decided upon tliem in liivor of the plaintitf; and \\ is t.ninerly ur'reil that the Courts rarely disturb a verdict found liy liie -liny, solely upon tlie ground that they would have come to a dif- fei-rat eo!U'iiis!oi) u[)iin the evidence. In (lie case {){' Mclciti v. Ta>/lor, EASTEll TERM, ltt.53. 13 3. Dili;.;. N. C. li»'.), Tindiil, C. J. says—" We agree that in ovcjry case in wliich the verdict lun turned upon a (im^stion ol'liict, wliich has been submitted fo tlio Jury, andtlicre is no objection to the verdict, except that it is found, in tlie oi)inion of the Court against the weight of evidence, llie Court ought to exercise not merely a cautious, but a strict and sure judgment before tliey send tlie cause to a second Jury. Tlic genei'al rule under sucli cir(!uni.>tances is, t'aat tlie verdict once found shall stiviid. Tiie setting aside is the exception and ought to be an exception of rare and almost singular occurrence". IJut notwitiislanding these strong observations, the learned Chief Jus- tice concumrd wiih the rest of tiic. Court in setting aside tlrat verdict, wliit'h was for the defendant, in an action of Ct'un. Con. and subjected that defendant, in an action of a criminal nature, to a second trial, in which the Jury awardiid damtiges against iiim to £1000. I aoi inclined to follow the example thus set to us, and think it wouhl bo just to take the opini- on of another Jury in this case, before we allov>' this plaintij'to turn the defendant out of possession. Bliss, J. I am of the same opinion. It appears clearly by the evi- dence of Mtflliews ihat there was a line fence bctAveen the two lots up to which both parties held, and that the plaintifF recognized the )OSse3- sion of defendant up to that line. If so he cannot be treated as a tre:- passer and turned out without a demand of possession. DksBauuks, J. On consideration of this case, and after a careful review of the evidence, I tliink the verdict cannot be sustained. It was objected at the argument that I did not submit to the consideration of the Jury, as fully as 1 ought to have dorif*, the question of fraud in the cxecutiim of tlie deed ; and that in expressing my opinion regarding its validity iis strongly as I did, the minds of the Jury, wdio had a right to pass upon if, may have been to some extent diverted from it. It cer- tainly was not my intention to withdraw the subject from their conside- ration, nor do 1 think I did, thougii it may be that I expressed the im- pression on my own mind at ihe tiuK^ too strongly. The question was presented to tiin Jury upon the evidence as one of the grounds of the defence, and t\u\y decided in favor of tlie plaintitF. Having done so I .should have soin(> hesitation, if the case rested entirely on that ground, to disturb tlie verdict, bu! 1 have none on the second ground. It is cpiite clear tlial tlu' widow was in possession of the whole of the lot, at the time the defendant entered upon it. Slie had previously leased it m-a\ .:'"eived rent for it, and v,hen the lessor rent a message to the de- fendant " to come to the widow's idaee", as was testified to by one of the witnesses, (no division of the lot having been made between the vvidoAv !iii.1 !iiinv('l|'\ li.' thereby f^'cyxi^ the defeiulant a license and authority to 14 JOHNSTONE V. BliEXAN. enter on his undivided half part, or .sliarc, in the lot, whatever it was, and afterwards could not treat him as a trespasser. It was also i)roved that the lessor assisted the defendant to remove his property, and with his ncigh- Iwurs also assisted liim to build a house and barn on the lot. Tlierc ean be no doubt then that the defendant went into possession with the sanc- tion and consent of the lessor, and that an action of ejectnunit cannot, tinder these circumstances, be maintained without proof of a demand of possession or notice to quit. No such evidence was given, and therefore r think the rule to set the verdict aside ought to be made absolute. DoDn, J. not having been present at the argument delivered no opi- nion. Rule absolute. ALKXANDER JOHNSTONE v. GEORGE BRENAN. A])ril 5. A pni-ty directly interested in a defence, who has indemnified the defendant on the record, nnd who stateis (hat the suit is defended on his individual beiitilf, is incompe- tent as a witness under Lord Dcnman's .\et. This was an action of replevin tritd before Mr. Justice DesBarrcs at Antigonish, in October Term last. The circumstances, as stated by the learned Judge who tried the cause, in giving his opinion, were as follow : It appeared that the plaintiff, though a minor, was a married man, and resided in the same house with his father, James Johnstone, who for several years had kept an Inn and grocery shop there. Tliaf Johnstone, the father, liaving become enfeebled, expressed his intention, some time before the seizure of the property replevied, to retire from business, say- ing that a stock of goods was coming for his son. Certain goods did afterwards arrive, marked in the name of the plaintiff, which were put in his father's shop, where the same kind of business was carried on as before, the plaintiff and his wife at times, and at other times his father, attending to sell and deliver the goods. Several witnesses were called in support of the plaintiff's claim to the property. On the part of the defendant it was proved that the property claimed by the plaintiff was seized by the defendant, as a constable, under a warrant of d'stress issued by two magistrates, at tlie suit of one Edward 11. Harrington, as Clerk of the licences for the retail of spirituous liquors, against James Johnstone, the father of the plaintiff; and witnesses were called to shew that there was a collusive dealing between the plaintiff and his father, and that the property seized, though claimed by the plaintiff, was in fact the property of his father. Hurrimjton was called as a witness, and olj- jccted to as incompetent on tlio ground of interoi;!. lie ptoted that ho EASTKU TERM, l8o.3. t5 liiid signet! a bond to ideninify tlic defendant for the costs of the suit, that tlie action was defended in li;s individual behalf, that he received tlie warrant of distress from the magistrate, and placed it in the hands of tlie defendant, to be levied on tlie property of James Johnstone, to wliose house he directed him to go for tliis purpose. The question of fraud and collusion between the phiiiitiiF and his father wsvs submitted to the Jury, who were directed to find for the plaintiff, if they thought the property or any part of it belonged to lihn, and for the defendant if they thought it belonged to his father. The Jury found a ver(''ict for the defendant, and a rule nisi to set it aside was granted, which was argued at the last Michaelmas Term on two grounds, viz : 1. The admission of improper testimony. 2. That the verdict was against the evidence. The arguments of counsel are necessarily omitted. Tlie Court now delivered judgment. Hallibukton, C. J. The question of property was fully and fairly left to the Jury, under a charge which certainly was not unfavorable to the plaintiff, and the Jury have found that it was in the fatlier, and not in the plamtifF. The objection to the verdict on the ground that Har- rington's evidence was inadmissible, cannot be sustained, because there is ample proof that the defendant had a warrant, and was acting under it, without Harrington's evidence. I therefore think that the rule to set the verdict aside should be discharged. Bi-iss, J. I do not entertain a doubt that Mr. Harrington was inad- missible as a witness. The objection to the competency of a witness is twofold ; either that he is directly interested in the event of the suit, or that the verdict in the cause will be evidence for him in another action. That JMr. Harrington had a direct interest in the cause, is too obvious to admit of a doubt. lie was the Clerk of licenses. The conviction tigainst James Johnstone having been obtained, the warrant was received by him, and by him placed in the defendant's hands, not merely with general directions to execute it, but with particular instructions to go to the house of James Johnstone to do so. After the replevin was made, n bond of indemnity was signed by Harrington, and the action, he says, and very properly so under these facts, is defended on his behalf; for besides setti.ig the whole affair in motion, and ordering and directing all the subsequent steps taken in the case by the defendant, Harrington is the party interested in the fruits of the proceedings. If the plauitiff succeed, the property which is to satisfy the conviction obtained by him, is lost. If the verdict be for tlie defendant, the property taken will re- main, and the penalty in which the party was convicted will be paid. Harrington, in fact, is (he real defendaut ; Brennan the nominal one ri 16 JOHNSTONE V. IJRENAX. only. That being tlien his situation, how does the hite Provincial Sta- tute (Revised Acts, p. 387) alter the case ? That Act is a transcript of" the English Statute of G and 7 Vict. c. 85. It restores the competency of all interested witnesses, except (1.) a ptxrty individually named as such on the record. (2.) Tlie lessor of the plaintiff or tenant of the pre- mises sought to be recovered in ejectment. (3.) The landlord or other person, in whose right any defendant in replevin may make cog- nizance. Or (4.) any person in whose imintnliate and individual behalf any action may be brought or defended. Here Harrington comes clearly within the last exception ; he is, as he says himself in so many words, and as the whole case as plainly shows, " the pei'son in whose immediate behalf the action is defended". In Hill V. Kitchivg, 3 C .B. Rep. 309, it is said by Coltinan, J. that " the party in whrise immediate and individual behalf the action is brought", must be understood to mean the party who causes the action to be brought. And Maule, J. says the meaning of the proviso is, that no person who is the formal defendant on the record shall be called as a witness, nor any person who, though not the formal plaintiff, is yet sub- stantially so. If we substitute the defendant for the plaintiff, — and the rule with regard to both is the same, — we have here an explanation of the Statute which clearly will exclude Harrington fi'om being a witncsa. We may gather the same from Hcarne v. Turner, 2 C. B. Rep. 535. It was an action of Trover for two pound notes. The defendant plead- ed that before the plaintiff was possessed of the notes one Mytton was lawfully possessed of them as of his own property. That they had been fraudulently obtained from Mytton and delivered to the plaintiff, where- upon defendant, as the agent of Mytton, and by his direction and autho- rity, took the notes out of the possession of the plaintiff. The replication was that the notes were the property of Hcarne and not of Mytton. At the trial, Mytton was called as a witness for the defendant, and objected to on the ground that he was directly interested in the event of the suit, as it was his own title that was in issue. He, however, stated on his ex- amination on the voir dire, " That he had not indenmificd the defendant, had not been consulted about the action, and had nothing whatever to do with it". It was held that he was a competent witness at com- mon law, and more particularly that he was so under the Stat. G. 7, Vict. c. 85. Maule, J. in giving his opinion, puts it upon the fiict stated by Mytton, that he had not indemnified the defendant, and had no con- cern in the defence, and he puts the very case which we have now be- fore us. He says, " if, on the voir dire, Mytton had said I directed Turner to obtain possession of the notes for me, and agreed to indemni- fy him against the consequences of any action that might be brought against him for so doing, then he would have been the person on whose immediate behalf the action was defended. It appeared, however, that KASTKR TERM. I8:..1. 17 J/////rt« hiid luttliinp; whatever to do witli the defeiico : he is elcurly, tiiorefbre, not within the exceplion oftlie Stiitiite". But here llnniny- Ion lind every thing to do with tiic delence. He ciiused tiie property to be tfiiven. lie indeninilied tiie det'endttnt, iuul llKTcli^re, aeeordiii}^ to the opinion of Mn»/c, J., lie is clearly witliin the excejition oftlie Sta- tute, and was nut a eonipetent witness. But another question was then raised at the argument, whether this heing so, and the witness being therefore improperly admitted, the ver- dict is to be set aside, and a new trial granted under the (Ust rule in the Revised Statutes, )>. .'578. The clause is to tiiis ett'eet: — "No new trial shall be granted on aecoimt of evid(;nce having been in\properly received <»n any trial, if in the judgnunt of the Court there be other evidence suflicient to sustain the verdict". This was at one time the princij)le tipon which the Courts acted, and the very language of our Act seems boriowed from tliat of Mansjield, C. J., in Herford v. Wilson, J. Taunt. 14, who there says the Court will not set aside a verdict, on account of the admission oi' evidence which ought not to have been received, provided there be suflicient without it to authorise the iinding of the Jury. And the case of Doe e. d. Lord Teyhnam v. Ti/ler, G Bing. aCi.'J, was decided upon tiie same principle. But as Lord Dcnman said in Wright v. TatJuon, 7 A. and IC. 330. "The courts afterwards renounced the discretion whicli was thus exercised", and in this and several other cases have held "tliat if any evidence has been improperly received by which the vtM'dict was, or miglit have been, in- (Uienced, the losing party has a right to a new trial". See Jii'ssi'/j v. Windham, (>. C^. B. R., 173. Our j)rovincial statute has, therefore, whe- ther wisely or not, brought us back to what has of late been considered the erroneous principle of these earlier cases. ;ind our duty under it is now to consider, whether the evidcMice in the case, without that of //«/•- //»(//oH, might fairly authorise the .Jury to find the same verdict. The only matters testified to by this witness of the sliglitest import- ance were 1st., a statement made to the witness, by tlie plaintiff", that he was a minor, and 2nd., that tlie warrant of distress, under which the pro- perty in question was seized liy the defendant, had lien placed in his hands by the witness. Now, whatever ett'eet the intiuifv of the plaintiff might have had on the question, allowing it the fullest, the fact did iioi depend on this evidence alone. Another most respectable witnrs-, iJi . McDonnhi, gave precisely the same testimony — liiat the plaintiifa few days before the trial stated to him that he was a minor. Upon (he rule (hen laid down by the statute, there was most certainly willi respect l(. this matter sufiieient evidence to sustain the verdict if that of Iduriii'j- fon had not been received. With respect to the fact that the warrnni had been pl;ifod in the de- fendant's hand< by the witness. 1 cannot look upon it m- ;if ;il! imiioriaui. ir 18 JOHNSTONE r. BRENxVX. ©i" having any particular influenue upon the verdict. The only eft'eet was, that the defendant liad acted under that warrant in taking tiie pro- perty, — a conclusion wliich no .Jury could have failed to draw from the whole facts of the case. The magistrates had proved the conviction, the issuing of the warrant, which was itself produced in evidence, its delivery to Harrutytoa as clerk of the licences, and the fact that the defendant was acting as a constable. And ♦!ie plaintitf himself proved by one of his own witnesses, the seizure of the property by the defendant, his appraisement of it, — a proper and regular act of duty when acting under legal authority, — and that the defendant was then acting as a con- stable, and said at the very time that he had a warrant. Upon such very strong evidence as this, I think no Judge, if it had been necessary, would have hesitated to put it to the Jury ; and that no reasonable Jury could help linding, that it was under this warrant that the defendant took the property. There was then no need of the evidence of Harrington to support this verdict. But 1 may add, on the last point, that the evi- dence respecting the warrant was rather beside the question in dispute, It was whether the property belonged to the plaintiiF or to his father. The possession of it was of the same doubtful and disputed character as the ownership, and ui tiict depended on the ownership. If the property itself was not then the plaintitf 's, neither was it taken out of the posses- sion of the plaintitf. And it is wholly immaterial, therefore, now that the Jury have passed upon this fact, to ask whether there was any evi- dence to justify the taking from the father. "Whether that was so or not, if the plaintiff had no right to the property, he could not replevy it, nor maintain the action. I think, therefore, that the rule for a new trial must be discharged. l)c>i>i>, J. delivered no opinion, not having been present at the argu- ment. DicsBahkes, J, As to the first grotmd, 1 may remark that I enter- tained and expressed a strong oi)inion at the trial, that Harrington's tes- timony was inadmissible, luid since I have looked into the case I can see no reason to alter that opinion. I think Harrington comes within the excei)tion of chap. 135, sec. 11, of the Revised SUitutes. As clerk of the licences, Harrington was entitled to receive one half of the fine imposed on James Johnstone, on his prosecution. For this fine he caused a warrant to be issued, and placed in the hands of the defendant, whom he directed to go to the house of James Johnstone, and levy it on his property ; after which he gave the defendant a bond of indemnity to defend the action, which he states was defended in his individual behalf. If he had not given the bond, it is not to be supposed that the suit would have been del'endcd,. «o thai he is iii fact the per;ou ^vlio caused the dc- EASTER TERM. 18:>:1 19 tence in this suit to be mtide. the defendant on the record having n«» in- terest in it whatever. In the case of ffiU v. Kitching, 8 C. B. R., 229. VoUman. J. j^ays, " With regard to Lord Denman's act, it is material to observe that it distinguishes between tlie parties having an interest in tlie action, and parties in whose immediate and individual behalf the action is brought. It appeal's to me that the party in whose immediate and individual behalf the action is brought, must be understood to mean, «lie party who causes the action to be brongiit, and tliat a witness is not brought witliin the proviso by merely sliewing that lie has an interest in the determination of the cause, in a particular way". Again, Maule, J, in the same case says, " The general scope of the and 7 Vict. chap. Bo, is to allow the examination of all persons, notwithstanding they may have an interest in the event of a suit. Tlie meaning of this proviso is, that no person who is the formal plaintitf on the record shall be called as ;i witness, nor any person who, though not the tbrmal plai" T, is yet .substantially so. For instance, suppose a man assigns a bond, and sues the obligor on behalf of the assignee, the latter would be a person in whose immediate and individual behalf the action was brought, and therefore not an admissible witness". Mere Harrtinfton, though not the formal defendant, is yet substantially so, for he alone is the party inte- rested, and as such has directed every act of the defendant, and made Jiimself responsible for the result. Being, therefore, clearly of opinion that Harrington's evidence ought not to have been received, the ques- tion is whether there is sufficient evidence to sustain the verdict without it. The most important part of his testimony relates to the issuing of a warrant of distress b}' two magistrates, and his placing that warrant in tlie hands of the defendant as a constable, to be levied on tlie property o\' James Johnstone. These facts were essential to the defence, and if proved by no other person than Harrington, the defendant would dearly be entitled to a new trial ; but the same facts are substantially proved by other witnesses. Willoiigfihi/ Rnndall, a witness for tlu' plaintiff, states that he was called upon by the defendant, who was then ai-ting as a constable, to a|)piais(> articles which lie had in his jios-cssion at Johnstone's house. W. C. Hlorlilni, a witness for the defendant, states that he and George lirenan, as magistrates, issued a warrant of distress at Harrington's instance, n?!tiii«t Jamrs Jnlin.sloup, on a conviction for selling rum without license, wliich he delivered to Harrington as cleric of the licences, and further that the defendant was acting as a constable at the time. The impression on my mind at the trial wa-t, that the plaintiff had proved a right of property in two of the articles claimed (a Sleigh and Harness), for which he ought to ha\ i.' a verdict. I put this view strongly to the Jury, leaving it, however, open to them us already stated, to find for eii '•.cr party as they felt warranted to do upon the evi- dence. They diftered with me in opinion as they had a right to do. nnJ yo IU\(; r. I'.UKN.W. louml a vo.nlici tor tlic, (lef'ciKliiut. 1 ciiniiot say lliat (he iiiiprossioii I then had is oi»tiroly reuiovcil, but coiisulcriiif]; that tlie case altogether turned on u «|iiesticrty of the fatlier, I do not think w«! are called upon, under these «'ir- «'uinstnnees, t() disturb the verdict. For these reasons, I think that the vuh' to set aside tlie verdict should be discharged. I'ule discharged. Counsel tor J'laiatirt". Yoing. (}. C. (."ouusel for Defendant. .1. W. Hitchik- TnOMAS RING v. GEORGE BRENAN. April 5. Replevin m.ny lie siistiiincd t).v the owner of goods, talicn under warrant in the nii- ture ol'an exciMition, not bcin;,' the parly against whom tlie warrant issued. The replevin in snoli rase may be brouglu against the constable who made the levy, bciny in possession of tlic };oods. This was an action of replevin tried at Antigonish in October Term. The defendant pleaded, 1st. that the goods taken were the property of James Johns/on ; 2nd. That the defendant, as a constable, took the said goods in the dwelling house, and in the possession of the said ,/«/««',« Jolinston, under a warrant of distress, by virtue of a canvicti*>n of two magistrates against him, for a breach of the licence laws. The ]>laintitf claimed the property in question under a bill of sale from Jdiiies Johnston, whii'li the defendant contended was fraudulent and void. This was the single ipteslion before the dury, who found for the plain- tilf. At the trial, hov.ever, a nonsuit was moved for, on the grounds tlifit re])l(vin would not lie for goods taken uiiilcr a warrant in the nature «;r. 18:.;!. ■/>1 has been maintained. These cases consist of two classes, ami two only. 1st. Wlicrfi tiie statute in pari materia gives the remedy ; for instance, in case of poor rates ; 2nd. Where the inferior Court has exceeded its au- thority ; for instance, in case of goods levied on, out of the district over which the Court exercises jurisdiction. With these exceptions, process in the nature of an execution is sale against replevin. Tlie present cnsn not coming under either of these exceptions, the rule should be made absolute. Cites in argument the following cases: — 1. Hums. Jus. 60(5, 10. ed. ; 1 liro. and Bing. iu ; Strange, IIH-I ; (iiih. licj)!. U\. KH ; 2 Lutw. 11!)1 ; n Lev. 2U4 ; Com. Dig. Ucpl, 1). 7. tM ; 2 Mod. 20H; JJ li. ami C. 08; 2 Bing. .") 13 ; l 'l\ 11. OdO; •> Black IJ. VoM); Morris on J{epl. 49 ; "Willes, 072. note-, Ch. TM. liej)!. IHl. ."> ; Saund. K. 7(58. roiiiu/, Q. C. ecmtra. In the hii^t edition of Saunderg, even in the extreme ease of rephivin brougiit by the defendant for goods taken un- der execution against him from a superior Court, both text writer and editor, qualify their eiuuiciation of the general principle thus, " it seemed that replevin would not lie". Is there any ground lor this qualification ? Two reasons are given for the general principle that replevin will not lie for goods taken in execution. 1st. Ileplevin jiostpones tiie actiial remedy of the original plaintift". 2nd, The Court will not allow one writ to be superseded by another. If it did it would, in etfeet. in such cases as tiiese, give the Sheritf the power of trying in his Court the va- lidity of an execution. An inferior Court would thus control a superior Court. IVIany cases may be snp|)osed in which replevin is a much more efficient remedy than either trespass or trover. Tiicre has been a grow- ing inclination in tlie courts to favor tlie remedy by replevin, and there- fore old decisions are controlled to a large extent by modern usage. I am. therefore, not prepared to grant that even in the extreme case of an action Itrought by tiie original defendant iigain:-.t the Slicriflf, replevin v.ould not lie. HALLimijTdN, C. .T, Lord Ellenbnrongh said that he was surprised that replevin was not oftener used. YotiHff, Q, ('. 1 maintain in the seeond place. theJ replevin will lie in all cases against any execution or distress iVom an inferior tribunal. Tiiirdly, that replevin will lie in all cases by a third i)arty, not the ori- ginal defendant, against the Sheriff, for goods taken under execution. Fourthly, that on tlie issues raised in this case, it is no longer open to defendant to defeat the action of replevin. The defendant ought to have moved (o set aside the proceedings ; but by pleading to tlie declaration, he has deprived himseit' of the I'igln to dbjcct In the form of aetion. >-2 UIN<; r. RHKXAX. In a Inte case of Oeortfe v. Chambers, 10. M<'t'. iiiul Wei. !;'»!), dcciilod in 1848, /7/ is reported, in wliicli replevin \\a^ brouftht for a cow and a stacii of hay. Cognizance by defendant as bailitf, and otlier defendants as liis servants, that one ^'at/iuniel Daij was i)osscs8ed of the property, and that defendants seized the property on an execution from the county Court, against said Day. I'leain bar that phiintitV was possessed of the |»roperty as his own, and traverse that Daif was possessed of it. Keplication, that Day was possessed of tins property. Issue upon tliis. Verdict for defendants for tl»o cow, and plaintiii' for tlie liay. Replevin was brought in this case by a stranger and sustained. If the conviction in this case be valid, then the cases are precisely similar. In Jiooke's case, Cokes. Uep. part 5, page 100, the defendant in replevin justilieliim liii-N iiuiiiilv liirnt'd ii|MtM till! iiKinii-v, wliillur ilir inrciior Cdiirl liail jiirisilirtinti or not. .Uunrll v. Martin, I Sn.ii. \. U. ;;(>(». ;i M. ami (1. M]. In .MIoii V. S/iitrji, "J l'',\('li. .'t.'i'J, rc|>lr\iii l>ri)ii;:lil liir lidoils sfi/cti mulrr iiii iit' pariiami'iil, and lii'ld lliat n|ilt'\iii lies in all casrs wlnrc ^'(hmIs an- ini- proin'ily lakrn. In 1 1 iM.anil NV., I I'.) ilrciilnl in IHi;i, am! wliirli is als(>r*'|uirli>(| in 'I Diiwl. ni'W snir.-i, 7h;I. /.on/ Miliiijvr siivs, *• Tin' ♦'nrlliiT we lonU imck into till' aiidinrilii's, lln- Irss iilijri'lion \vr liml to tlii< art ion of ri'|ilrvin. Il is tiMin-ri'sxary lirii' to ilcriilc wlntlii r fi'|»lfvin will lie, il'^jouils ai'ii takt'ii under an cM'rntioii nliifli in valid. It is snlliriont In di'ridc tliiil it a nia^istrali' liiis no iiiriMlirliiin citlii'i ri'|>li'\ in or trt'spass will lie. t\iikr, li. " fi'idrs in is a|i|dii'altir in all i-ascs wIii'IT jioods an- iinproprr- ly lakfii". i'luM'ctorc ri'pii'vin is niaintaiiialdi' I'm' ^oods sci/i'd in I'xc- ciilinn tVoiii a Court iiaviii'; no jnrisdii'tioii, or IVoin a Conrl lia\in. Am. from _' Kug. Ed. ; and where iroods are taken by way of levy, as lin' a |>enalty or a eonvietion under a slaltite, it is generally in the naliin' of an exe- cution. I'nless replevin be granted by the slalnie, ihis a'lion w ill not 111', the oonvietiou being eonelnsive, and its legality '.el goods of a travelK'r al Jin inn n>ay bo replevied. Bliss, .1. puts the ease of a wateh bought and left in the bands of the seller. liitehie refers to 2 Rolles, Ab. .'>r>2, '' Trespass", .S and li.. where it is said ■ tliat tresp.iss lies against an olVieor who, on an execution, seizes the goods of a stranger ; and that if an officer in a replevin surd ottt by 1. D. delivorb the goods of a -trangor. on the shewing of I. I), the owner KAS'JKIl Tr.U.M, l«,j;). 'j:> i>t'll;<: (.'""t liiir). Jii llii! v.nnn ill 2 liill'v. I I'.M, llii: ili.-' v i-> mrrcly In roiniul an ii|»|»i'aiMiic(', iiiid tlific Mils no liiiiil /|iiil).'iiii'iil. Mil!!)'!' N. P. i'l.'!. It' pujils liu lukon in cNcciiliun, or on a i'iiiivi<'lion luforc .Inslici!,-*, llif SlicriH'Hlinll not iimkn rt'iiliivin ol'lliiin ; iinil if in siicli (•11-10 ilw; Sin ritJ'.-lioiild niiiki; n'plovin, 111.' witiilil siilijc'i't liiiii^rlf to nil iillMi'linii'iil ; llir i^ooils ni'i' only ri>])levi- .•vin docs iiol lio lor goudn tiiken in I'xrcniioii ; also nl'irs lo .s r:iiinloii V:.'!. h'l'ni/ i'"\(r luid tlic pOH- Mc-ision. ,/ii/i/is/ii/i fiiiM li;i\i' nuiiiiliiiiii'd r(|)li'vin (i/^niiisl a .sti'anj;(;r. (.'ould A'"','/ liavc hnniMlil rcjilfsiii a^iaiiisl Juinisfun f r\i>. Why tlion agiiiiiHl Di'l'i'iidjinl ? A''",'/ <'i>n!d not lui.vc brou^rlit lres|ias.s ugain.it ./v/iusftiu, Imcimim' Iii> iiiid iicrnii^isisr iiomsc-isIoii. In (ills ciisc, llic tini'slion of |int|>crly a^; Ix'lwti'ii tliird ]iai'tie.>t iit riii.scd. In lli<' ciisc el 11 niofl;.ra;i(' i' is coiLsi.-lciil. ilmt |)ro|i(;rty should be in llic acliial |iossfxsiuu oI'oik' u hen owned hy another ; not so in an/ other t'lise. The le^'iil |i(».ses,-iion was in Jf/msfoii, from a clause in the deed or hiil of side. Hefers lo 1 Sell, and Let". .'i:iO, ami als(» the next ease in tUc same volume. This is an Irish ease deeided l>y Lord Uedesdiile. In Irish eases niiieli mure iatiimle is ^.'iveii to replevin than in Ivn^lish. In this ease the ;^oods had lieeii eons eyed hy a deed of jjfil't, (perhajLi fraudulently ohliiined), by ji, laiher lo his son. The father and son hud been livin;^ together. The father left Ih " house, and shortly after bronchi ihereph'vin. Lord iJidi'Mhiie said, " 'I'he piods were in his (Son's jiossessioii all alon;;. At least the possession was eipiivoeul, and (hat is not a ease to whieh the writ of replevin eaii be jipplied. It must be to the ease; of an unofpiivoeal possession, and of a taking'. In i") Ad. and Kl. I 12, an nnlawl'ul detention, ai"l<'r a demand, was held suilieient to eoiistilule. a lakin;;;. 'i'his is the only ease t'ounded on a eonslruetivc taking. In the present ease, luithiiiir was ever done by A'iii;/ to invest himself with the prTn taking oiio's walili ut an inn. The le.^t is taking, or no Uiking. Johnston, Q. C. Kt'i)leviM was originally roiifmiHl to the recovery of goods, levied on, in distress ibr rent. Blis.«. fl. By the year bfiol<^, it apjx'ar^ ibrnicrly to have; been very extensively used ; in later tinus, its nse was mure restrieted ; and \vs are now reverting to tiie aneient extensive en\j)loynK'nt of replevin us ;« remedy. Johnston, Q. C. How is it that a stranger never lias l)roii^ht replo vin in his own name, when goods m poissession of a tenant have been- taken by a landlord in distress for rent ? lU'fers to (lilbert on distresses. Goods in custody of the law are not distrainable. and therefore probably not replevisable. Kefcs to Gilb. on Kepi. p. 80, where it is said, that in the writ of replevin, two things are complained of; the taking and detention. V/hat is principally controverted in re])levin is whether the taking be just or not, and in the second place, whether the detention be lawful. The ne.\t step is a claim of property. Kefers to (Gilbert, 116. " If the defendant plead property in 1. S. a st.'anger, and avers that there is no property in ihe plaintiff, the i)lea vill lie in bar of the action ; and the defendant will recover not only damages but the goods also". It is assumed that in all these cases tlier^ must be an unlawful taking. This is asst nied as the point in cotilrovevsy. The case in 5 Ad. and Y.k. 142. aro.~e upon an avowry for rent. Plaintiff tendered rent and a sum for cost;, and acknowledged tiiat 'he goods were rightfully taken in distress for rent, Init that the rent was aftcrwiM'ds tendered and refused. The taking was rigiili'id, but the detainer was held unlawful. There was a demurrer upon tlie point, wiieiiicr unlav.i'ul d.'tenlion is a taking. Siicli a detention as keeping gnods al'ter payment oifercd and demand made was held lo lie a?i unlawful taking. This case is very different fiOm tiie present one. In Kooke's ease, "» Coke 100, the assessment was irregular, and tiie Court had no jurisdiction. If tlio takirg had beei> lawful, the Cl. 00. (>7.. The Court now delivered judgment. ILvi.LiBruTOX, C. J. Tiio question of ilie validity ot the bill of sale to Ring was fairly left to the Jury, and \\v\ have found in favour of it. liut it is contended that replevin will net lie for goods taken under a warrtiut issued upon a conviction before magistrates. Tiiat the person against whom th(! warrant issued under the conviction, cannot replevy them, may be admitted. Otherwise, wri.s of replevin might issue inter- minably, and the punishment of the oflV'udei", by the forfeiture of his goods, be continually defeated. But if K's good... 8 re taken under a war- r.'int against A, I cannot underttiiiid why B may not have the same remedy to re-possess hin)self of his pniperty, as he would Iuut in any other case where he comp'. lined of a lawfid taking. Nd case has been cited toshew tiiat liccannot. Tliat of Wiini'ird v. Fox'rr v'woyX \\y ^Lr. Jolm- sto)ie from Lntwyclie rather estublishcs that i)c can. 1 thc!'"))!!-,' tliink that this rule toset asiiie the >tTilict tor the •>laintiiVshoiiiil he .|i>i'liar'ri'(l. Br.iss, J. If any great doubt existed v.pnn tlin ]ioiiU,, wiu-iher reple- vin would lie by a pers()n wh(>>e jiropertv had l)ee!i taken unch'r a war- rant of distres.^', it must have lici n at all events removed by the late ^ases. In Gcnrf/c \. Vhainhns. 11 M. and W. 1 t'.', the plaintiff's goods were distrained under a warrant (>f Justice', whicli In- reph-vied. It was held tJuit tlie .Iu»tic^■s iucl no aiithf ity to \>\\v\\ warrant. Tlie ()iie>tion tlien arose \;lietlicr rcpU'N -i wouhl lie. Lord Afiiiir/i'r said it was very i-emarkable that tliis olijection wa-; ne> er tal^cn \vhcn ea«es were decidtMl in favor of the |)iaintitrin rejiicxin. " It is unne<'essary", he says. " to decide whether rc|il('\ in \» ill lie if goods are takcii under a conviction which is valid. It is ciiougii for i:s to decide, thiit if the magistrate has not jurisdiction, eitlier replevin or trespass will lie. I'arkc, Vt. says, " tl"> question to be decided is siatnly wiieiher goo.ls taken un.ler a pretended autlioritv can W i-epji'vled. /'riinn fan''' there 'm KlN'(i r. BRKNA.V. is no doubt they can, for though in ordinary practice, it is applied only lo a distress for rent, yot a rcjilevin is, at common hiw, a remedy appli- cable to all cases where goods are improperly taken ; and I find no eatiafactory authority to show that it will not lie where goods are impro- perly taken under a warrant of a Justice. And in the report of the same case in 3 Dowl. New Series, 780. Aldfrson, IJ. remarks that the reasonable meaning of the cases cited, in which it is said that replevin will not lie, is that there is matter which may bo pleaded in answer. Allen V. Sharp, 2 Exch. Rep. 3.^2, appears to carry the rule still further, for there replevin was held to lie where goovin were taken under an as- sessment, under certain assessed tax acts, though the decision of the assessor that the party was a horse dealer, however erroneous, was hehi to be conclusive, and could not be rpiestionod, and consequently the re- plevin failed. In Jones v. Johnston, 6 Exch. Rep. 8G1, it was consider- ed that replevin would even lie against the Justices by whom the war- rant of distress was issued. Parke, B. says, " surely replevin lies in all cases against a party by whose order goods have Ijcen improperly taken. "NVe considered that matter well in the case of George v. Ohamberi^'. These cases are conclusive. The plaintiff in them v,as, to be sure, the party against whom the conviction was obtained and the warrant issued ; but they were decidt>d, not U])on tiiut circnnistance, but on the univer- sality of the principh , tliat replevin would lie wherever there had been an unlawful taking; and that, therefore, it would lie ev(!n in those ex- treme cases. And if in these, a fortiori, it t»ppears tonu- it mustbe hold to lie, where the gocids of a party have lieeii taken, against whom Ihere was neither a conviction nor Avarrant. I'lie taking here by the defend- ant of the plaintilV's property, turns out to bo a mere wrongful act, witlv- tait authority or excuse. A warrant is put into liiri hands to take the goods of Johnston, and he ^ikes, a« the Jury have found, llie goods of Jiing, and upon what f)rinc!ple the latter is precluded from replevying his property, thus unlawfully taken, 1 am at a loss to understand. It is olleged that being in nisfodio leffi's tiie re})leviu will not lie ; but we have seen from the cases cited, that this will be no bar to the action, even where there is a couviction and warrant against the })arty himself, who brings tiie replevin. I hold it. Iiowever, to be an entire inis-appM- cation of the term, to suppose tliat wliere the goods of one person have been taken under a warrant again^U another, that they are in the cus- tody of the law. There are, as here, in the custody of the person who executes the warrant, it is true, but they arc held without law an,] against law ; and lliis is just one of the cases of a wrongful taking, for which replevin i«, in my opinion, a proper and suitable remedy. The principic being so clear, and the authorities so strong, it can hardly be liCQCssary ic. K' '^:k for ct je- in which, under just such circumstances, the ftctlva has been brought, nor would it be sarprising that none such wes?^ KASTKR TER:\r. lft'.;l. 39 *'ound. Tim case of Winnard v. Foster. Lntw. 1191, however, is vciy closely m yiomi. That was replevin for takint^ a cow, and a stack of hay. The defendant made cognizance a>< liallift'of 81r C. Wandesworth, Sheriff of Yorkshire, for that onr-. Natl an lei Day was i)os«essed of tiiosc goods, and tliat a plaint wns levied a'^ain'^t him in the county Court, and ho not appearin;^ upon summons, there was an aUacliment awarded against his goods, and so justifies the taking them. The plaintiff replies that he was possessed of the said goods, and traverses the possession of Day. Upon this traver.-e the defendant took issue, and the Jury found for the defendant as to the cow, that it was the cow of Day, and assessed damages and costs to 4i)s. ; and as to the hay, they found for the plain- tiff, and assessed the like damages and costs. The question under this verdict was, whether both parties Avere entitled to their several costs. No V, the two cases are identical in their circumstances, and the plea in ••:.. e«ent one is the same as the cognizance in that. Yet no question x.'<>..-i iianle in that case that replevin would not lie ; and it may be as- sumed, I think, that it was because the point did not then admit of a doubt, AVithout, however, any case on the subject, I rely on the prin- ciple alone, that the acticm is clearly maintainable, and that, consequent- ly, the rule for a new trial must be discharged. DoDP, .T. delivered no opinion, not linving been present at the argu- ment. DesBarrks, J. The question as to tiic validity of the bill of sale ha\ing been left to the Jury upon the evidence, and decided by them, the only point lor us lu consider is, whether the action of replevin will lie under the . 'r^nnistance of this case. Among tl • vii-i • cited at the argument, I have not licen able to find one wher i picMa has been held noi to lie by a person whose property has be^n .k'. . i,,fi r a warrant cf distress itsued against another. The case first citeci • H'l/aon v. Wi.ler, 1 Bro. and Bing. 57, only shews that where a miiL;..;i;ite, having competent, jurisdiction, issues a warn nt of distress against a person whose goods are distrained, that person cm- not replevy them. It is said in ^ ( N. P. 53, " that if goods be taken in execution, or on a conviction u ^••n- Justices, the 3hei iff shall uot make replevin of them ; and if in sucn case the Sheriff should make re- plevin, he would subject himself to an attachment, for goods are only rc- plevJFable V ' ) (hey have been t.ikon by way of distress". For this he cites ; s iUtbc"". " tha King v. Monkhousc, 2 Str. 1184, in which case attachmoe' \' u ■ vt.,tted against the Under Sheriff for granting a replevin of goods di. > ■ ned oi. a conviction for deer-stealing. In this case the goods T/ere replevied Vn' ♦hf. party convicted. It is also said in l^ Chitty on PI. 161 (old Ed.) "If a superior (.'onrt award an execti- I il so RlXa V. P.-RFA'AX. thn, it seems that no replevin lies for the goods teken by the Sheriff by virtue of the execution, and if any person shall pretend to take out a replevin, the Court would commit him for a contempt of their jurisdic- tion". His authorities are 2 Lutw. 1191. ; 2 Lev. 204, and 2 Str. 1181, already referred to. He also says, " and where goods are taken by way of levy, as for a penalty on a conviction under a statute, it is generally in the nature of an execution, and unless replevin be given by th« statute this action Avill not lie, the conviction being conclusive, and its kgality not questionable in replevin". 2 New Rep. 399. "NVilles, 673. But where a special inferior jurisdiction is given to Justices, &c., and they exceed it, in some cases replevin lies. Willes G72, n. b. In 3 Kent's Com. 481, 4th ed., he says, " v,h;',n it is said in the books that replevin will not iie for goods taken in r ,, the rule is to be taken to be limited to cases in which the writ jtlevin is sued out bff (he defendant iu the execution. The taking of goocis of a stranger is a trespass, and replevin lies, as the cases shew, when goods are tortiously taken, and therefore goods taken in execution may be replevied by a stranger to it". It is somewhat strange, that the very first case he cites as an authority for the position he lays down is that of Winnard v. Foster, 5 Lutw, 1 191, cited on the part of th6 defendant, to shew the reverse ; also, Jiooke's case, 5 Co. 97. Clarke v. Skinner, 20, John's rep^ 467 ; and American Jurist, No. 23, Art. 4, where he says this point is elaborately iliscusscd. In the case of George v. Chambers, 11 Mee. and AVelsby, 149, which was an action of replevin for goods taken as a distress by warrant from a magistrate. Loi'd Ahinger, C. B. said, " in the case of an execution issuing from a superior Court, the order of the Court that the Sheriff shall levy liie money, shews thaf ihc law never intendtid a replevin which would frustrate the order of the Coiirt". Parke, B. in the same case. " The question now to be decided is simply whether goods taken under a pretended authority can be replevied. Prima facie there is no doubt that they can ; for though in ordinary practice it is applied only to a distress for rent, yet replevin ir, at common law, a remedy applicable in nil cases where goods are improperly taken". And I find no satisfactory authority to shew that it will not lie where goods arc improperly taken under the warrant of a Justice. In some cases, no doubt, the Court will interfere to pi*event replevin in order to save its process from being defeated. Tlic rule lie observes is correctly stated in Chief Baron Gilbert's treatiso. on replevin, j>. 138, where it is laid down, '• if a superior * >urt award an execution, it seems that reple. vi-.i lies for goods taken by the Fheriff by virtue of the execution, and if any person shall pretend to take out a replevin and execute it, the Court of justice would commit them for contempt of their jurisdiction ; because by every cxcoition the goods are in the custody of'tiio law. and the law ought to guard them : and if would be troubling' the execution awarded, EASTER TERM, I8i3. n if the pari'/ on wliom the monfij was to be levied, should fetch back the (foods hi/ replevin, and tliordbre they construe such encleavoi's to be a t'ontempt of their jurisdiction, and upon thtit account commit tlie ofFend- tT. That is if a person attempt to defeat the execution of the Court, they will treat it as a conten>pt, and punish it by attachment of the Sheriif ". But Chief Earon Gilbert also cays, " that in cases in which there is no jurisdiction the goods may be replevied". Aiderson, 3aron in the same case, said, " it is true that replevin will not lie when there is a judgment of a superior Court ; for if j-ou replevied on the first judgment, you could do so on the judgme'-.L upon that also ; and so there would be I'oplevin on replevin ad injinifum. It is different in the case of an inferior jurisdiction, which is to be set right by the superior". This case affirms the doctrine laid down in 3 Kent, and sficms to me to set the question at rest. It shews that replevin will not lie in the name of the party whose goods have been taken under execution on a judgment of a superior Court, because that would defeat its process, but it lays down tlic general doctrine that replevin is at common law a remedy in all cases where goods are improperly taken. That may be where there is no jurisdiction, or where the goods of one person a)'e taken instead of the goods of another. The goods in question were taken as the pro- perty oi Johnstone, but the Jury have denied that thoy were the proper- ty of the plaintiff, who was r. stranger in the original suit. They were, therefore, improperly and tortiously taken, and therefore I think reple- vin lies in this case, and that the rule to set aside the verdict must b ♦ discharged. Rule discharged. LESSEE OF CUNARD v. IRVINE. April 5. Whore a p.iity olaiming land in ejectment docs not derive liis title from the Crcwn, he is bound to trace it to some one who has been in possession of the land. A party chiiining wild lands under a deed, and having actual possession of a pirt, has a sulHcicnt constructive possession of the whole land described in hia deed, to bring him within the Statute of lim.tations. A purchaser \.ho has paid consideration and occupied for 20 yoars without a deed, obtains title by possession, otherwise if consideration was not paid. The facts and arguments in this case are so fully stated in the opi- nions of the learned Judges that it is considered unnecessary to insert tliem at length. The cause was argued in Michaelmas Terra last. The Court new delivered judgment. Halliburton, C. J. This is an action of ejectment tried before Bliss, J. at Truro, in which a verdict passed for the defendant. A I'ule nisi to set that verdict n.>idc was argued lu^*t Torm, 32 ( UN'ARD V. IRVINK, i3l , Two questions of some importance litivc arisen in tiiis case ; First, It is contended tiiat no title iia.i been jiroved in the lessor of the plaintifl', because no title or possession was proved in the party who originally conveyed the premises to those under whom the plaintiffs claim. If this be so, of course the verdict must stand, and it will be un- necessary to consider the defence. It appears by the report, that the iirst piece of evidence produced by the plaintifl", was a deed of the premises from William and Sarah Logan to S. B. Robie and Foster Hutchinson, dated the tenth day of June 1811. Then the copy of a deed which, under the circumstances in proof, the Judge admitted at the trial, from S. B. liobie and the heirs of Foster Hutchinson to William Dickson, dated the 24th day of May, 1846. Next u mortgage from William Dickson to S. Citnanl, dated the 1st day of January, 1827. Then a deed from W. Dickson to S. Cunard, dated the 1st day of November, 18o2 ; and a deed from Cunard to Burgess, dated the 6th day of July, 1852. There was no proof tiiat cither Logan or any of the persons to whom the mesne conveyances were made, had ever been in actual possession of these pi'cmises. The only evidence given by the plaintiff" that had any bearing upon this point, wsis that of Alex. Miller, who said that he was a Crown Sur- veyor and was familiar with- lands in Truro ; that he had known No. 19 (the lot in question) as the William Logan lot, reputed to have been drawn by him, and subsequently known as William Dickson's lot. A motion for a nonsuit was made by the defendant's Counsel, upon the ground that the plaintiff" had proved no title ; but my brother Bliss, although he had doubts upon the subject, declined to nonsuit, and the question therefore remains for our consideration. I have already stated that it is a question of some importance, and I do not recollect that it has ever before been so directly presented to us. Where a party is in the actual possession of land he is deemed by the law to be the owner of it, until the contrary is shewn, or unless the cir- cumstances of the case warrant an opposite inference, and a conveyance deduced from him, is sufficient both in England and in this country ; but I scarcely think that such a title as the plaintiff" has set up in this case would be sufficient to put the defendant upon his defence in Eng- land. I incline to think, however, that it ought to be in this country. Livery of seisin has never prevailed on this side of the Athmlic ; actual seisin of Avild lands has never been deemed necessary to entitle a party to convey them to another. The difference upon this point between the two countries, is well stated by Mr. Justice Storg, in giving the opinion of the Supreme Court in Green v. Letter, which is cited from 8 Craneh. in Angell on Limita- tions, 119, 120. <• In the simplicity of ancient limes (said he) there EASTER TERM, 1858. was no means of ascertaining titles but by the visible seizen, and in- deed there was no other mode between subjects of passii!«^ title but livery of the land itself by the symbolical delivery oittirfaaA. twig. The moment that a tenant was thus seized he had a perfect investiture, and if ousted could maintain his action in the realty, although he had not been long enough in possession even to touch the esplecs. The very object of the rule, therefore, was notoriety, to prevent frauds upon *he lord, and upon other tenants. But in a mere uncultivated country, in wild and impenetrable woods, in the sullen and solitary haunts of beasts of prey, what notoriety could an entry, a gathering of a twig or an acorn, convey to civilised man at a distance of hundreds of miles. The reason of the rule could not apply to such a state of things, and cessante ratione, ctssai ipsa lex. We are entirely satisfied that a conveyance of wild or vacant land gives a constructive seizen thereof in deed, to the grantee, and attaches to lum ail the legal remedies incident to the estate". The operation of this different state of things in the two countries, has not been confined to the solitary haunts to which the learned Judge alludes. The deeds of conveyance which have been adopted here, have long been deemed to transfer the possession of the vendor to the vendee, although both may be at a distance from the land, at the time of tlic de- livery of the deed. As it is not necessary for the vendor to be in the actual post-ossion of the land at the time of the transfer, does it follow when he is not, that he must either trace up the title to the Crown, or deduce it from some one who has been in the actual possession of the land ? for that, it ap- pears to me, is the question now presented to us. A large portion of land in this Province still remains uncultivated, of which no actual pos- session has ever been taken, and I think it would hamper the transfer of such property very inconveniently, if it were deemed necessary in all such cases to trace up a title from the Crown. It appears in this case that one William Logan undertook to convey this lot, No. 19, to S. B. liohie and Foster Hutchinson upwards of forty years ago.. ''■Tune, 1811) ; that in 1816 they conveyed it to Williani: Dickson ; vnat in 1827 Dickson mortgaged it to Citnard ; that in 18;J2 Dickson gave Cunard an absolute deed of it ; and Canard conveyed it to Burgess 6th July, 1852. I cannot bring myself to view all these conveyances as mere nulli- ties, or to look upon the whole its a fi-aud concocted in 1811, to enable an ejectment to be brought in 1852. I think that, on this side of the Atlantic, they may form », prima facie case, which calls upon the pos- sessor to shew that Logan had no right to convey this lot, or that he, the defendant, has subsequently obtained a right to it himself; at least I am not prepared to give u positive opinion to llie coutrar) . This renders it necessary lor me to consider the dd'cuco. ii i"fi?? .. A. 84 CUNARD V. IRVINE. It appears that 24, 25, or 2G years before the trial in 1852, one John Irvine entered upon this lot, No. 1 9, and cleared and cultivated a part of it ; and that on the 17th of September, 1829, John Irvine conveyed this lot, No. 19, to William Irvine, by a deed which was never registered until the 15th of June, 1852, the validity of which deed was questioned at the trial, and left by the Judge to the Jury, who found in favor of it. There is some discrepancy as to the time when William Irvine entered into possession after John, but I consider that to have been settled by the Jury. It is clear that either he or John held the possession, such as it was, until the 1st of January, 1851, when he, William, conveyed the same lot, No. 19, to his son Robert Irvine, the defendant. Now, that there has been a possession of some part of this lot in the Irvine's for upwards of 20 years, is undeniable. It is equally clear that that possession was not permissive, and held in subordination to another, and therefore it was adverse. The only remaining question, then, is, whether it is confined to what was actually occupied and improved 20 years ago, or does it extend to the whole lot. If the possession had continued in John Irvine as he held it, I should have no hesitation in deciding that it extended no further than his ac- tuai occupation. A mere intrader gains no more under the statute than what he has actually occupied adversely for 20 years. This is the law both in this Province and the United States. But where a party enters under color of title, the law is different there, and I deem it to be so here also. The American doctrine, and the cases decided upon it on this point, are discussed in Angell on Limitations, Ch. 31 ; and although the deci- sions in that country are not binding upon us,as those of "Westminster Hall are, they are very safe guides in the determination of cases which can now rarely arise in England, but are of frequent occurrence here. The rule has been stated by Mr. Justice Thompson in the circuit Courts of the United States to be unquestionable, " that where one en- ters into land under a conveyance, his seizin is not bounded by his ac- tual possession, but is co-extensive with his title, but where ho enters without title, his seizin is confined to his possession". This rule is thus laid down by Mr. Justice S,ory : " He took it to be a clear principle of law, that where a person enters into land under a claim of title thereto, by a recorded deed, his entry and possession are referred to such title, and he is deemed to have a seizin of the land co- extensive with the boundaries stated in his deed, where there is no open adverse possession of any part of the land, so described, in any other person". ^ f the learned Judge meant to confine this opinion to cases of record- ed .cods, I cannot concur with him. The deed was probably recorded in Ihc case then under consideration, — and certainly the recording of it KASTKR Tf:RM, 18.')3. 3» circuit 9ne en- lis Re- enters record- corded of it gives additional publicity to it, — but the only consequences attached by law to the non-recording of a deed, are, that it becomes void aa against subsequent purchasers. The non-recording of this deed for such a Ifngfii of time, was one of the circumstances which the Jury might con- sider, when its validity was submitted to them, but as they have decided that (piestion in favor of the deed, we can attach no other consequences to the non-recording of it than the law attaches. In no other case can I find this doctrine so limited. In the same chapter of Angell, p. 429, it is said, " an entry into possession of a tract of land, under a deed containing specific metes and bounds, gives a con- structive possession of the whole tract, if not in any adverse possession, although there may be no fence or inclosure round about the ambit of the tract ; and an actual residence only on a part of it". And again, " there need not be a fence, building, or other improvements made. It suffices that visible and notorious acts of ownership are exercised over the pre- mises, after an entry, under claim and color of title". Again, sec. 35, ji. 435, " as to what constitutes color of title it seems to be very well a,greed, that if the title under which the party relying on possession claims, and originally entered, be ever so defective, the possession is notwithstanding adverse". Now here is a case m which an adverse possession of a part was taken by John Irvine 24, 25, or 26 years ago, a conveyance of the whole made by him to his brother William Irvine, nearly 23 years before action brought, and a continued possession of a part, during the whole period, by the Irvines. If parties resident in the Province will lie by, and carelessly permit their property to be thus adversely possessed by others, they are the veiy people against whom the statute was intended to operate. The law contemplates that owners even of wild or vacant lands should make some enquiry after their property. Angell, from whom I have already quoted so copiously, says, sec. 4, p. 400, " As an adverse possession for the time limited by the statute infers a right, a purchaser of Real Estate must not trust merely to the papers and records, but must enquire of the person in possession whether he claims to be the owner of Ihc pre- mises". No such enquiry was ever made, the possession of tlie Irvine's con- tinued uninterrupted for upwards of 20 years, and the legal owners must suffer the consequences of their own negligence. Nor can Mr. Burgess, who first appears as a speculator in this case, in the year 1852, be al- lowed at this distant day, to turn the defendant out of the possession of the mills and other improvements which may have been erected and made within 20 years upon this lot, which the Jury have found was conveyed to tiie defendant's father by deed in 1829. As to the declarations of William Irvine, made 23 years before the i ! lii, i ; I in h if iiii' lU I" mi CUNARD r. IRVINE, trial, relative to Dichon having a claim, they did not manifest any in- tention to rclinquirtii his own claim upon the land. They may have; been made before the deed from his brother to him, and cannot, at thit4 «Mstant day, aft'ect the character of his possession as adverse. For these reasons, I think this rule to set aside the venlict for the dcl'endant should be discharged. Bliss, J. The first question which arises in this case is, whether the lessors of the plaintiff made out a sufficient title to enable them to re- cover. They hold under a regular chain of a legal title by conveyance from 1811 to 1852. But neither Logan himself, from whom it com- mences, nor any of the subsequent parties who claim through him, were nhewn to have had any possession of the land, and the only semblance of any evidence of a right or claim to the property in Logan, except the deed itself made by him, was what was stated by Miller, a surveyor, that the lot of land in question was known as Logan's lot, and was reputed to have been drawn by him. Tiiis is mere hearsay evidence, and the conveyance by Logan, though an assertion of a right, is not necessarily, to say the least of it, evidence that ho had a right to convey. Where a party claiming land in ejectment does not derive his title from the Crown, he is bound, I think, to start from some one in possessiv>n of the land ; |)ossession being in such case prima facie evidence of a title. 8 C. and P. 536. A mere deed from a person who was never in possession, or what is the same thing, who has not been shewn to have ever been in possession, and who derived no title from the Crown or from one who lijis been in possession, I think passes nothing. And this doctrine I find to be held in the United States Courts. In Tabb v. Bairdi, 3 Call's Hep. 480, cited in Tillinghast's Adams 275, note, it is said, " a deed of bargain .and sale by a bargainor, not having actual possession of the land, nor that statutory possession, wliich he might acquire as bargainee from some other person having actual possession, conveys no title under which his bargainee can recover in ejectment". But if we should even give some effect to the evidence of Miller, as to the lot being called and reputed to be Logan's, and couple this with the conveyance of it by Logan, the utmost that can be said of it is, that it may be taken as pre- sumptive evidence of title in Logan, not a^ prima facie evidence, which, unless rebutted, must stand good, but as evidence only, from which a .lury not mvst, but may, if they see fit, presume a good title in Logan, and in those who tiirough him now cluim the land. But this was left to the .Tury, and they have not drawn that inference in favor of the les- sors. Then did the evidence adduced on the part of the defendant with reference to this point so strengthen the [)laintif!''s case, that it was in- cumbent on the Jury to find differently ? It was put to them very fat vorably for the ]>Iaintill", but without etrect. KASTEU TERM. 18ot). 87 John Irvine first entered on the lot, and began to clear. From him the possession passed to William Irvine, to whom a deed from John was made in September, 1829. The genuineness of this deed was the sub- ject of much dispute, but the Jury have expressly upheld it. One of the defendant's witnesses, Soley, says that William Irvine told him he wished to buy the lot in question, and that he would endeavor to find out Avho was the owner ; and two or three years afterwards he told him that Dickson claimed it, and he thought he would buy it from him. This was twenty three years ago ; that is about 1829. Now the statement of Dickson claiming the land, is not an admission that it was his land. There is no right admitted. It does not carry the case further than it stood before. The deed to Dickson shews, undoubtedly, that he claim- ed it, but the question is, whether such a claim, without possession or without deriving that claim from any one who had possession, is sufficient of itself so that a Jury must find the title of such claimant. It would seem, too, that at this time William Irvine could not have been in pos- session of the land, for in September of the year 1829 ho took a deed of this land from John Irvine, who therein states that he had purchased the land from Dickson ; and this might have been after the statement made by William Irvine that Dickson claimed the land. But the plain- tiflf, to shew, I suppose, that no title passed from Dickson to John Irvine^ and that, therefore, under his admission, the title was and still must bo in Dickson, proved by Barber, a witness whom he called for the purpose, that " John Irvine told him 16 years ago, that he had bought the land from Dickson, for a doubloon, and that he never got his deed nor got back his money". Here, then, is a possession in John Irvine, and others who derive possession and title under John Irvine, for upwards of 20 years, commenced under a purchase, with the consideration paid, as the plaintifl' himself has shewn, from Dickson, but without any would probably have cleared up the difficulty in the case. As the plain- tiff might have thus removed this difficulty, and has not done so, and as there are several other difficulties in his case which throw susj)icion upon it, I think the verdict ought to be set asiilo. Bliss, J. I am entirely dissatisfied with the verdict, and am of opi- nion that the evidence strongly preponderates in favor of the defenchmt. DoDD, J. This case came before the Court upon a rule granted at Sydney in October Term 1852, where it was tried, and a verdict found for the plaintiff. Tiie action was in assumpsit on the common counts, and the plaintiff sought to recover back a sum of money whicli had been paid to the defendant towards tlie purchase of 100 acres of land ; but the terms and conditions u[)on which the land was sold, or whether the agreement respecting the sale was in writing, was not proved at the trial. In order to recover under the count for money liad and received, it was necessary for the plaintiff to slicw that he had equity and con- science on his side, and he was therefore bound to disclose all liic cir- % I 41 McDonald v. Mcdonald. «:um3taiiccs of his case, so as to bring himself' within this rule. Tlie plaintiff" proved that he had purchased fx'om the defendant 100 acres of land, and had paid him about £44 on account of the purchase money. That he subsequently demanded a deed and offered to pay the defend- ant the balance of the purchase money, which Avas not taken ; the de- fendant saying he had not a deed for himself. The plaintiff' was never in possession of the land, and the defendant sold it a second time to n l)erson of the name of Nicholson. Although this statement is contra- dicto»'y by the defendant's witnesses, our first enquiry necessarily is, has tlic plaintiff" gone far enough to recover in this form of action ? I think he has not, and that he was bound to shew the conditions of sale, and whether the agreement was in writing or otherwise. If he is not bound to open the whole transaction connected with the money passing into the give tlie Court an opixirtnnily of jmluing wiicllici" lie was cntitlotl tu re- KASTElt TKRM, 1833. 4;', cover it back in an open action of assumpsit. Greenleaf in his second volume on evidence, sec. 124, in speaking of the action for money re- ceived, says it may be supported to recover a deposit on the purchase of an estate by the plaintiif, to which the defendant cannot make the title agreed for ; and he rcA;^ to 8 T. R. 732, and 3 B. and P. 181. In a note which follows, he says " the plaintiff in such case must shew that lie has tendered the purchase money and demanded a title"- Of coui'se he must mean according to the original contract, although he does not say so, and this is the principle I am contending for, that the plaintiff having paid money to the defendant for the purchase of a lot of land, is bound to shew that the defendant in equity and good conscience ">ught to pay it over to him again, before he can support the present action. If I am correct in my view of the case it should not have gone to the Jury, but the plaintiff should have become nonsuit. I am therefore now of opinion that the rule for a new trial nn-dt be made absolute. There were other grounds taken at the argument in favor of a new trial, par- ticularly that the verdict was against the evidence, but it becomes unne- cessary for mc to giv 2 my opinion upon them, as I think the plaintiff has failed to shew, for the reasons already stated, that he is entitled to rcco-.Xi' in this ;.ction. DksBaukes, J. The plaintiff's testimony is extremely loose, and the non-production of the receipt is a very suspicious circumstance. It ajv pears to mc from the evidence, that the money was paid, not on account of tiie plaintiff, but on account of the 200 acres purchased by his father. Rule absolute. HOLLAND V. BOVYER. April 5. A second origli.a! rapals may issue upon the same affidavit. Where the original and alias writs arc not sufficiently connected, the Court will reject the alias clause as surplusage, and sustain the writ as a second original. Qucre. Whether the rule is imperative, that a term must not intervene between an original writ and an alias. This case was argued in Michaeluiaa Term last, and the judgment of the Court was now delivered by Bliss, J. This came before the Court upon a rule nisi to set aside the proceedings. The plaintiff issued a writ oi capias returnable in Easter Term 1852, wliich was not oxecuted. He issued another wrii. tested in Trinit} Trriii. (20tli July) and returnable in Mii'Iniclniti Tcnn following. The 1 40 HOLLAND V. BOVYER. praecipe lor this last tiled in the oificc was for nn alias writ, and tlie writ was cndorAed as an alias writ ; but there was nothing in tI>o body of the writ itself to denote it as such, the aliae words not being introduced in it. The rule nisi to sot aside tlio proceedings was on the ground that ii Term liad intervened between the return of the original capias and the issuing of the alias^ I am not myself quite clear thci vhe rule is so imperntive that a Term must not intervene between the origiiial and an alias writ. 7^idd does indeed state that in all continued writs the alias must be tested the day the former was returnable, for which Touchin's case, 2 Salk 009, ia cited, which is a brief dictum to that effect. But on referring to 2\U' chin's case in 1 Sulk .51, which is the same case, it appears by no means to waiTant this general rule. It was a motion on arrest of judgment on the ground that the venire was returned the 23rd Oct., and the distriu' gas was tested the 24th, and this was held to be a discontinuance. Now tlus, it must be observed, was matter which appeared on the roll itself, and like every other process which requires to be entered on the roll, it must be regularly continued ; though that, in general, is mere matter of form ; and unless it is done there is a break, a link wanting, which is a discontinuance. But where there is no such entry of process on the roll, there is no reason for the rule, and it may be doubted whether any such exists. Where a plaintiff seeks, by the issuing of a writ, to bar the state of limitations, or where he intends to proceed to process of outlaw- ry against the defendant, it is necessary to connect the alias and subse- quent writs with the original, and as these will appear on the roll they must be regularly continued ; and this is what is probably meant when it is said, that on continued writs the alias must be tested on the day when the other is returned ; and except in these two cases where the reason is obvious, I do not know why the rule should prevail. And so it is now held under the new rules of Court of 3 Will. 4 ; see 3 Biiig. N. C. 85 ; 5 Bing. N. C. 279. And indeed the same view of the case may be gathered, I think, from Tidd himself, for he says, " where the plaintiff means to proceed to outlawry the capias should be tested on the quarto die post of the return of the original. The alias on the quarto die post of the return of the capias ; and the plurics on the quarto die post of the return of the alias". But, he adds, it is not necessary in other cases that the alias or pluries should be tested on the quarto die post of the return of the preceding writ ; for as the mesne process never appears on the record, no error can be assigned thereon. However, notwith- standing ray doubt, the Courts certainly appcju- to have acted on this rule, and whether well or ill founded, it may be now too late to ques- tion H. The plaintiff's counsel has, indeed, admitted this to be the rule, but he contends that this is not to be looked upon as an alias writ, but an m E.'vSTEK TERM, ISSS. 47 original one, that the writ itself is not an alias, and that neither the prae- cipe nor the endorsement can so be regarded, whilst, on the other hand, it is argued by the counsel for the defendant that whether the writ itself is or is not in its language an alias writ, it is so in fact, and that after one writ is and has been returned, if another is issued on the same affi- davit, it is an alias writ, and must be tested of the tenm of return of the original. If this be so, it will lead to an unnecessary expence in some cases, for either the pluintiff must take out one or more wrlio which hcj has no means of having executed, for the purpose merely of keeping alive the suit, and avoiding a discontinuance, or he must resort to an(>»her affidavit for the puri»ose of arresting the defendant, when the previous atPidavit is still in force, and quite effective, for the purpose of issuing upon it an original writ. Suppose, after the lapse of an intervening term after the original writ has been returned, when no trace of the defendant can be found, that he should return to the Province, as was said to be the case here, why should not another original capias be issued on the same affidavit if an alias is now too late ? I can see no possibio reason against it, and if the inile is so inflexible that no alias can, undet such circumstances, be issued, I think the reason only the stronger for allowing the issue of another original, and I agree with ilie argument of the plaintiff's counsel, that neither the praecipe describing it as an alias, nor the endorsement of the writ to that effect, can preclude our considering it as an original. The case of Willet v. Archer, 1 M. and R. tJ17 is an authority in every respect. There the capias was returnable in Hilaiy Term, the alias in Easter, and aplunes issued on 13th Aug. in Trinity vacation, so that a term intervened (as in this case) without any continuance or pluries being issued. A rule nisi was granted to set aside all proceedings, and to deliver up bail bond to be cancellta. Per curiam, " A term intervened between the return of the alias and the issuing of the pluries, without any continuance being entered, and in that respect we think the plaintiff was irregular", (svT that the doubt which I have thrown out was either not noticed or not thought of any weight). " The rale, however, prays too much, because it asks to set aside all the proceedings, all of which, with the exception of the pluries, are regular. Or the pluries latitat may be as good as an original pro- cess rejecting the pluries clause as surplusage ; though the costs of the former writ might not be allowed in taxation, as the staleness of the affi- davit might be a ground for discharging the party from arrest. The rule, therefore, must be discharged, but without costs". This case shews us that a second original capias may be issued upon the same affidavit. It shews more ; that though such second writ was in fact aji alias, which it could not regularly be, the alias part might bo treated as surplusage, and struck out, so as to make it what it might re- gularly be, au original writ; and ifbucU could be dojiQ a fortiori iLo 48 ».iLi.i:,j ;•. (.'A.\iri{i:i,i. t'lulorstMiiciit wliicli is no piirt <»f t\w writ iiiiiy bo disrof^iinlcil. No ol»j*M>ti<>ii t'liii, ill this ciiHt.', hu iii:iil(M)ii tint (rfoiind oi'llitt slulnicss of tliu itillduvit, aiul thu prccoilrnt of tlio ul>ovt! nisc iiiiiy tlii-rofons 1 tliiiili, Imj Hitft'ly I'oUowt'ti. Tlic rule will, tlmrcforo, be disclmrf^od, but uiider lliiH I'tkHo wilhuut I tliiiik vostn. (.'ouiiMcl fur plniiitiff', I'ltruK. Cuunsul fur dcfi'iidant, Lynch. Uulo disciuiigo«l. i LKSSEE OF DUNCAN GILLTS v. JOEIN CAMPBELIa April 11. T ho Court will not favor ohjections, tukon nttninst n unln of rent rfttate hy an nd- minlNtrntor for pnvnu'nt of ilelitH, uiitlur tin urtlcr of the 'lovcrnor nnd Coiinril, nftcr thu piitchusor ha« liccii ihirtcon years in posHUMsion, luul will in such cnso rucoivc tho rccituU in tho deed, iin prosumptivu evidonco, that tho uulo was dnly ndvortiiod. liut whoro tho ndininiiitrator'8 deud convoyed more land than was doscribod in tho advor- tiioment, tho variance held fatal to dcfondunt's titlo to the surplus. Proof of tho minute in tho books of tho Council antliorising a sale, is sufficient evi- dence of liconso to soil. The (^urt will not, in the nrpiumont of a motion to set asido a verdict, entertain an ohicctinn which was not taken ut the trial, where the objection might hare been roinediod, if taken nt the trial. Tho Court will permit tho defendant to amend tho description in tho consent rule nftcr verdict upiinst him, u*ion payment of costs of tho former trial. This was an action of t'jectniont tried at Port Iluod in Juno Term 18.")2, brought by DonnUl (iilli's, ju* vnv of the heirs nt hvw of Duncan (tillis, his father, to recover an undivided share of a lot of hind at tludique, in the county of Inverness. Tho defendant relied on a title under the administrator of/)«rtcn« Gillis, and proved, by the book of the Hegistrar of I'robate, for the county, adininistrution to one Turnbull; the adininistrntor's {)etition shew- ing insolvency of the estate ; the a}>pointinent of the commissioners by the Governor and Council to report ; an extract from the minutes of Council, authorising the administrator to sell ; nnd the deed from 2\irn- bull to the defendant, dated 1st Noven»ber 18;}'.). The defeiulant also proved the notoriety of the sale by jmrties who were jiresent and bid for the Imid, and gave in evidence, the " Hoyal Gazettes" of Oc-tober '2mi, i)th, Itith, 2t)rd, tuid 30th, the .suht having taken place on the 31st of that month. The plaintiff moved for a nonsuit at the trial, on several objections to the defendmit's title, which were overruled ; and the Jury found a venlict for tlie defendant. On the first day of this present term, Jolinston, Q. C. obtained a rule uf'si to set aside tliis vcixlict. EASTKll TERM, 1853. i;» IK ./(i/iiisfon inuvcd, on a subsequent day, for n rule absolute on the (<)llowiii;r grouiuls ; Isl. 'J'Ik! ecHififiile of the appointment of commisH'ioners signed " K. I), (jii'orge", does not purport to bo signed by him in his capueity of I'nnineial Sec-notary, or clerit in Couueil. 2iier olficer, must be sullicicnt. It has never been tla; practice to issue a do(!ument called a license, or any other than an extract, as in this in- stance. W. Johnston, •1th. There is no evidence of the administrator having filed security as provided by the act. tith. Tiie land was not advertised for {JO days, unless both the first and last days arc counted. Tiio statute requires the advertisement to be published in the " Gazette" for 30 days, and the license to sell says ttt least 30 days. (ith. Tiierc was no proof of handbills having b(!en pasted. 7th. More land was sold and conveyed than was advertised. Young, Q. C, and James, for defendant, sliowed cause. This was a case where a party had purchased land at a fair sale, for the considera- tion of Xl)2, which he had paid, and got a deed of the land, and had had 13 year's jjossession. • A party claiming one ninth only of the property, now seeks to turn him out of possession upon technicalities. The admintstration is proved by the books of the Court, and this is .sufficient. It would be unreasonable to recpiire a purchaser to pi-oduce and rove the letters of administratratlon, and it is not necessary. As to the filing security, the licence to sell is presumptive evidence uf the regularity of the })roceedings, as the bond must have been filed be- I'ore it could be obtained. Conrr. That was settled in Belcher's case. YoHuij, (J. C. KealiiKj was proved, at the trial, to have been acting 7 I 50 GILLES V. CAMPBELL. K3 the deputy clerk of the Council at the time, and not only so, but wo have proved that the extract was compared with the original records, which puts an end to all doubt on this point. It is now objected for the first time, that the advertisement was not published 30 days. This was not taken at the trial, or perlmps it might have been remedied. The advertisement is dated on the 20th Septem- ber, in time for the " Gazette" of the 25th, but is possible that it may not have arrived in time to be published in that paper. If not, it is still in the power of the Court to hold the advertisement sufficient, for it was actually published for 30 days, and complies Avith the strict lan- guage of the act, which does not say that the 30 days are to be compu- ted in any particular manner. It is true there is no direct proof of handbills being put up, as required by the act, but the administrator's deed recites that the sale was duly advertised, and it is proved that it was notorious and well attended. If an heir bring an action when nearly 20 years have expired, is a lonajide purchaser, under an admin- istrator, to prove that every minute requisite of the act has been ful- filled ? The revised laws have recently made provision for this difficul- ty, by providing that an affidavit filed within a year shall be evidence. This was not the law previously, and there existed no means of perpe- tuating evidence of the kind now required. If such a rule is to prevail, it will shake titles from one end of the Province to the other. The ob- jection that Sir R. D. George did not sign his name officially as Pro- vincial Secretary, was not taken at the trial, and therefore cannot pre- vail here. There are only two objections to be considered ; the length of time during which it was advertised, and the difference between the description in the advertisement, and that in the deed ; the former of these was not taken at the trial. \ i i Johnston, Q. C. The rule is uncertain upon that point. Court. If the evidence could or might have been supplied at the trial, had the point been taken there, we ought not to entertain it here, as in the case of a party omitting to produce letters of administration. Young, Q. C. As to the objection that the description in the deed contains more than that in the advertisement, the plaintiff at the trial proved no title to this part of the premises. Court. You derive title from his ancestor, which is sufficient to preclude your objection. Young, Q. C. But this only comes out in the defence. Court. Xh*'" vou should have objected ai the trial by motion for EASTER TERM, Iso.. nonsuit, as pcrlinps plnintiif might have amended his proof, fence removes the objection. «1 Your de- Yoiinff, Q. C. The lota were evidently known as one. In fact tlierc are not two lota, but one, and a piece of another, a broken piece which always went as a part of this lot. The description in the advertisement is general, and is not inconsistent with that in the deed wlien taken in connection with the evidence. Tin's is a case of extreme hardship. It was put to tlio Jury, and they have decided it, and their verdict ought not to be disturbed. If the Court should give a new trial, it ought to be upon terms which would protect the actual rights of the defendant, and without costs, as several new points have been taken. W. Johnston contra. The objection as to the 30 days must ultimately prove fatal. Cites 7 Eng. Law and £q. Rep. 535 ; 2 Law 4 Eq. 447 ; 8 Ad. and El. 875 ; 13 East. 21. Johnston, Q. C. Although the point as to the time of advertising was not taken at the trial, I presume it can never be cured, and wc can avail ourselves of it on a new trial, which we must have, on the objec- tion arising from the description. As for the other points, — IlALtiBCBTON, C. J. These were all decided in the Sheet Harbor cases. Johnston, Q. C. The defendant ought surely to have proved the handbills. This was presumed in the Sheet Harbor cases, because there had been a possession of 30 or 40 years under the deed. CouuT. Would it be reasonable to require a party to prove liand- bills after the lapse of 13 years ? He could not keep the hundbills, and if he did they would not be evidence. Johnston, Q. C. All sales under powers must be construed strictly. Here the law not only required 30 days' advertisement, but tlie license from the Governor and Council says, " at least 30 days". They liad power to withhold their permission, or if Uiey granted it tliey could mould or modify it according to the circumstances. Having in this case limited the power by saying, " at least 30 days", that limitation ought to have been strictly 'ollowed by the administrator. The objection as to the description is obvious and insuperable. The Court now delivered judgment, that the rule for a new trial must be made absolute, solely on tiie ground that the description in the deed contained land not included in the advertisement, and expressing their regret that, through the carelessness of the administrator in preparing the advertisement, the defendant sliould have been subjected to loss and .■.2 SIIEV c. CIIISHOL^r. •' i iiiconvonionoo. hut (leeliiiod oxprei^sing nii opinion U3 to the property liavlnj; been mlvirlisod ii .sullioicnt k'nglli uftinie. Uulc ubHolute, with costs. Note. — The ticfondant, in the ensuing Trinity Term, niov(Ml lor a ruh; to amend tlie consent rule, by striiting out tlie description of tiie rear lot, wliich liad not been inchided in the advertijcnK'nt, wliich was granted on payment of costw of tlic former trial. 1 Ii 1 1> hi i:1 LESSEE OF SHEY AND OTHERS v. A. CHISHOLM. Ajirll 8. Ucj};istry of a dcoil is not equivalent to enrolment under the statute of uses, so as to transfer the posKcssion. Where the plaintitf relied npon a dorumcntnry title, and fnilcd in tracing it to the Crown, and Riive doubtful evidence only as to tlio possession of one of the prior own* crs, held thut this evidence ought to have been lett to the Jury. Tiii8 was an action of ejectment tried at Antigonishe before Dodd, J. in November Tenn last. It appeared by the evidence that Jfuffh McDonald, the grandfather of the lessors, purchased the land in question from one Johti Solomon, by deed dated 20th May 1809, which was registered on the Gth August 181 1. No evidence was given of possession of the land by Solomon, but it was proved that Ifiif/h McDonald, about the year 1810, employed parties to cut 200 tons of timber on the land. Hugh McDonald died in iSH or 1815 intestate, leaving three children, two of whom died intes- tate and without issue, and the third daughter, Catherine, the wife of John Shey, being then an infant below 21 years of age, was married to liim about 21 years ago, and died about 10 years ago, leaving her hus- Itaiid, John Shctj, and also four cliildren, — who were the lessors of the les- sors of plaintilf in this action, — her surviving. The defendant's counsel, at the trial, moved for n nonsuit on several urounds, among which were the following ; That if any person were entitled to recover the lands IVom the de- li'iidant u|)on this title, it must be John Shey, the father of the lessors, n-i tciiiint Ity (lie courtesy of England; and iilso that no possession w:is |n()\{'(l ill Ilii;>riic(l Jndgo directed the .Tmy, that JTiajh McDonald had dii'il in ])osspssio.'i ol'tiie property, the deed from Solomon to liim having pns«C(l the r sini|)le. Tiiat the rcLn^try of the ut to them to find for the plaintiff upon the documentary title alone, which was in- sufficient, if thei'e was no possession in tlic vendor prior to the sale, nor any in the purchaser subsecpient to it. I therefore think the rule for a new trial must be made absolute. Buss, J. If there is a misdirection on the point as to the validity of the deed, I do not see how a new trial can be avoided. DoDD, J. I have altered my view as to the effect of registry of the deed since the trial. 1 then thought that the deed passed title notwith- standing the want of possession in conseciuence of its having been regis- tered. It was so held in New Brunswick, but in that Province the sta- tute expressly provides that the registiy of the deed shall be construed to convey the possession, while our statute contains no such pro\ ision. If the docnmentary title is insuflicient without possession, I think I ought to have left the question as to McDonald's possession open to tho Jury. DesBabrks, J. concurred. Rule for new trial made absolute. Note. A question was subsequently raised in the next Trinity Term, whether the defendant were entitled to the costs of the rule to set aside the verdict, the Court having, as was alleged, given judgment on a point not taken at the trial, viz. : the want of possession in Solomnn. fro»v« whom McDonald, and through him, the lessors of plaintiff derived title. The Court, utter argument, considered that no Buflicient possession had been proved in McDonald. Had such possession been proved, that alone would have been sufficient evidence of title to have entitled the lessors of plaintiff to recover, notwithstanding the want of possessi^u in Solomon ; but as the evidence of possession in McDonald was too slight to raise u presumption of title, and as this objection was taken at the EASTER TERM, 1853. 55 vrial, tlicy decidcJ that the dcfenclant was entitled to his costs of the ar- gument. JOHN PONCIA V. MICHAEL McDONNELL. April 9. The Court will restore a judgment discharged without consideration upon false pretences of the defendant, upon an affidavit ; a balance being due. Tins was a motion to make abisolute a rule nisi, obtained by Lynch on the first day of Term, to set aside a satisfttction piece irregularly entered, so as to give the plaintiff the benefit of his judgment against the defendant. The defendant, Michael McDonnell, caused judgment to be entered in the year 1849 in favor of the plaintiff for the sum of £G00 currency and costs, wliich fact was communicated to the plaintiff. Subsequently, and without the knowledge or assent of the plaintiff, the defendant, by false representations, induced the attorney by whom the judgment was entered to file a satisfaction of the judgment, which was accordingly marked as satisfied by the Prothonotary. The plaintiff subsequently applied to the attorney who had entered the satisfaction, for the amount of the judgment, and in order to protect himself and restore the plaintiff to his rights, the attorney applied upon affidavits to set aside the satisfaction as hfsviiig been obtained from him under false pretences. From this application the plaintiff withheld his sanction, and it was, ac- cordingly, for want of the plaintiff's concurrence, refused by the Court. The plaintitf brought his action against the attorney for entering satis- faction, and recovered £50 damages, which were paid. Lynch now ap- plied for a rule absolute to restore the judgment, upon affidavits embo- dying the foregoing facts, and stated tliat the sum of £487 12s. remain- ed due on the judgment. Fairhanks, Q. C. now shewed cause on an affidavit of the defendant, that an ofier had bc^n made to the plaintiff's attorney to restor'^ the judgment before the action for damages was brought, which application he refused, and that there was another judgment for a large amount, in favor of one Jeremiah McDonnell, against the defendant, which was prior to that of the present plaintiff, and which was also irregularly discharged, at the same time and in the same manner as the judgment in this cause. The learned counsel contended, that the plaintiff having refused to have his judgment restored, and having made his election to proceed for damages against the attorney for a mere inadvertance, in releasing the judgment without sulFieiont enquiry, had affirmed the satisfaction of tho judgment, and precluded himself iVom having it restored. And that the 5C BANK OF B. N. A^fEKICA v. KHJTII. restoring of the judgment would work an injury to Jeremiah JIcDon?icll, by giving priority to the present phiintiff. Lynch, contra. The satisfaction piece was a mere nullity, 5 Dowl. P. C. 188 ; I'ut we brought an action, berause by the act of the attorney we were pre ?nti.'d iVfun nbtnininj^ an exefution, when the defendant liad property in his hands, and it would have been of use to us. The application to restore the judgment was not resisted by us, but was re- fused by the Court without opposition. Court. The defendant has no equities, and it ill becomes him to op- pose this motion. He is entitled to credit for the amount recovered in the suit, but r. ) more. The Jury in that case considered that owing to defendant's (McDojiiiclVs) inability to pay, the plaintlif had only sus- tained a moderate amount of damage, and therefore they gave him but i!50 ; for which the defendant is entitled to credit, but tor nothing more. If the plaintiff has not received all that is due to him, he is surely en- titled to have Ills judgment restored, in order that he may recover the balance. Kule absolute. BANK OF B. N. AMERICA v. ALEXANDER KEITH. April 9. The Court will grant a commission to examine a witness who was ont of the Pro- vince when tlic suit commenced, but returned after action commenced, and left again secretly without the knowledge of the party requiring liis testimony. Johnston, Q. C. moves in this cause, winch was an action of assump- sit on a promissory note, for a continuance, and also for a commission to take the evidence of John 3IcDovgaU, a witness who had left the Pro- vince before the action was brought. It appeared by the affidavit that McDougall had returned to the City of Halifax clandestuiely since the commonoement of the suit, and had gone away again secretly without defendant being aware of his having been in the Province. The de- fendant's alDdavit declareu consolidated. Shannon for plaintiff moves to enter judgment on an awtird, made under a submission containing a clause to make the iiward ti rule of Court. There had been two causes, one of cjcctinent, and the otiier of debt on bond, referred under the same bonds. The award had been made Ji rule of Court by motion on a former day, and the iilaiiiliif now .>eing the last day of the sittings after Tcnn, Sawers, for «lefend* nnt nio\-cs in the same cause to strike it off the docket, as plaintiff had not gone to trial. CO TODIN V. aNElL. i i'oinif/, Q. C. tlion movoil for a contimmnw, on nn nflldnvil showing that at"t fondant justifi(^l that lie used the hcvs to " receive and unload for storage, goods, wares, and mt rcliandize, and the same thereon again did deposit anil i>laci' ib)' short and reasonable spaces of time, preparatory to their licing rrmoviMl and taken therefrom" ; and that the defendant, in fact, only used liie way for such short and reasonable periods, and only a little olistriieted the dose, doing no unnecessary damage to the plaintiffs. The fourth ph'a JiisfKicd lor a mere right of passing and re-passing wilh horses, iVc., and alleged that defendant imlyused the way for short and rea-onahlc spaces of time, doing no unnecessary damage. To iluwc pli a^i till' plainlills dcnuirred, shewing lor cause of demurrer. KASTKU TERM. I6:>i 01 tlint whereas tlie pleas profess to be an answer to the whole declaration, thfy contained no justification for subverting the soil, depositing rubbish, or comnilttinpr several other trespasses mentioned in the various counts of the declaration, and that did such right of way exist as pleaded, it could not justify such acts as were complained of in the declaration. Young, Q. C. in support of demurrer. This declaration contains al- legations of several trespasses which, had they been omitted in the pleas, might have been the subject of .•) replication lor excess, but having been included in the declaration, their truth is admitted by the justification. The three counts of the declaration, to all of which the pleas profess to be an answer, state various obstructions to this passage being all not mere matters of aggravation, but substantial trespasses, and extending over a considerable space of time. Among these acts is the placing of rubbish, dirt, and filth, on the soil, and keeping it thei'c three years. The pleas do not specify particular parts of these allegations to Avhich the justification may be applicable. Had they done so, we might have admitted the justification and relied on the excess, as there is, in fact, a private right of way in the defendant over this passage, but we arc precluded from doing so under these jdeas. It is said in 1 Saund. 28, note 1 and 2, that mere matter of aggrava- tion need not be justified ; but that is in cases where the plea answers the whole gist of the action, and does not refer to such separate and sub- stantial trespasses as are here alleged, all of which are admitted as well as the possession of plaintiffs as owners of the soil. Surely a plea of mere right of way will not cover the depositing of dirt or filth on the premises. Cites 3 T. R. 292; 3 AVilson, 20; 3 Ch. PL, 1109, 1115, 1117, and note. Mc Cully, in support of pleas, contended that where the whole grava- men of the action is answered in the plea, there is no necessity to spe- cify the particular trespass. The substance of the action is the break- ing and entering the plaintiff's close. It is an offence against real es- tate, and the additional trespasses complained of are mere matters of ag- gravation. It would be different, were there any allegations in the de- claration of trespasses to personal estate. Bliss, J. Have you justified the placing the dirt and rubbish on the premises ? Mc Cully. This dirt and rubbish was nt thing more than straw in which goods were i)ackcd. It was a part of cur merchandize, which we must necessarily unpack and deposit there for -ihort spaces of time. Cot:i{T. Thou yon should liave distinguished the trespasses, jusfifind liiiJI r.2 TIIK QUEEN r. KINS3HAN. the iilncing straw and merchandizo as you have mentioned, and pleaded not guilty to tiic residue. Without hearing Ritchie for plaintiff in reply, the Court gave judg- ment for plaintiff on the demurrer. THE QUEEN v. JOHN KINSMAN. April 28. A British Court has no jurisdiction to punish a foreigner for an oflFcnce committed on the high seas, in a foreign ship, against a British subject. Tins was one of several indictments found against seamen of the United States' merchant ship " Winchester", for misdemeanors com- mitted against tlie passengers in that vessel. The prisoner. Kinsman, was charged in the indictment with an indecent assault upon Ann C Flaherty, one of the female passengers. The general facts, sis they were given in evidence during the inves- tigations which took place, were as follows : The ship " Winchester", built and owned at Bo?ton, in the United States of America, and registered and sailed under the laws of that coun- try, sailed from Liverpool, England, bound for New York with a num- ber of male and female passengers, chiefly natives of Ireland, who were emigrating to the United States. Shortly after leaving the port of Liverpool, the master fell sick, and became unable to attend to his dr ties, and a state of considerable insubordination occurred, as was alleg- , on board the ship, the sailors using violence towards the male pass* n- gers, and indecent conduct towards the females. During the voyage, the ship experienced a storm, and was dismasted. A part of the pas- sengers were taken off by the " Shannon" subsequently to the accident, and the " Winchester", with the crew and remainder of the passengers, made her way under jury masts to the Harbor of Halifax, which port she entered solely as a port of refuge, and as soon as possible thereafter left the port in continuance of her voyage. Upon the arrival of the ship in Halifax, the individuals on board who were implicated, being several of the seamen, were arrested and detained for trial, for participation in the alleged irregularities which had occurred upon the voyage. Several of the prisoners pleaded not guilty, were tried under the indictments and acquitted upon the evidence. During these trials, seve- ral questions were taken by the defendant's counsel upon the jurisdic- tion of the Court as affected by the national character of the ship, and of the seamen, some of whom were American citizens, others British subjects naturalized or domiciled in the United States of America. A question was also raised as to the national character of the jiarties »c.1 EASTER TERM, 18A8. 68 against whom these offences were alleged to have been comniitteil ; they being British subjects who had left their native country in a foreign vessel, with the intention of domiciling permanently in the foreign state, to which that vessel belonged. These several questions were discussed in argument during the trials, but it did not become necessary under the circumstances connected with the trials for the Court to come to a formal decision in any of the cases, except that of the present defendant, John Kinsman. The prisoner pleaded in abatement to the jurisdiction of the Court, in substance as follows : " That the ship " Winchester" was not a British ship, nor the prisoner a British subject, nor resident nor commorant in any of the Queen's dominions, at the time of the commission of the of- fence, or since ; that tlie ship was built and owned by citizens of tho United States, and registered and navigated according to the laws of that country ; that the prisoner is a natural born citizen of the United Statcf), and hath always before, and at, and since the time when the al- leged offences were committed, had his domicile, and been commorant within the United States ; that the prisoner was a merchant seaman of the United States, on board of the sliip " Winchester" ; that the vessel was broken and injured on the voyage by the perils of the seas, and from inevitable necessity put into the port of Halifax for shelter, and as soon thereafter as practicable proceeded thence on her voyage ; that at the time the alleged offences were committed, the prisoner was under the protection and subject to the laws of the United States, and not un- der the protection or subject to tho laws of Great Britain, or of the Province of Nova Scotia; that tho people of the United States, by Courts of judicature duly authorised, hold pleas and take cognizance of felonies, misdemeanors, assaults, and other offences committed on tho high seas in merchant ships of the said people ; and that the supposed offences charged are within the jurisdiction and cognizance of such Courts, and ought not to be inquired into in the Province of Nova Sco- tia or elsewhere out of the United States". To this plea the Attorney General, on behalf of the Crown, demurred generally, stating in the margin of his demurrer the point to be argued, jis follows : " The question to be raised is, that it is no defence to the prosecution, that the said John Kinsman, being a foreigner, and under a foreign flag, is not guilty of an offence committed on the high seas against a British subject". By concurrence of counsel, there was no argument upon tliis demur- rer, as the question raised had been discussed, along with several simi- lar questions affecting others of the crew, on a previous day, during tho trial of Thomas Clark, before Bliss, J. His Lordship the Chief Justice, DesBaires, J. ; the Honorable Alexander iStetcart, Judge of the Court % \iv 01 THE QUEEN V. KINSMAN. of Vice Admiralty, and B. If. Narlon, Esquire, U. S. Consul, wore iilso present at the argument. The nationality of the prisoner in that case was not proved by tho Crown in the first instance, and the Court held, after arrrumcnt, that tho prisoner, being in a foreign vessel, the legal presumption arose that he was a foreigner, and that as such he must be licld not to be within the jurisdiction of the Court ; but they permitted evidence to be given by the Crown, after the argument, that the prisoner was a native of Ire- land. The case then proceec^ed, and after a lengthy investigation the prisoner was acquitted. The following is a summary of the argument then delivered, so far us it relates to the (juestion raised on the demurrer : Johnston, Q. C. for the prisoner, calls the attention of the Court to the state of the International Law. There are two general principles in the law of England which bear upon the present case. 1. It is applicable only to the subjecfs of the Crown. 2. Its operation is confined to the territory under tli jurisdic- tion of the Crown. Although oflfences upon the high seas have always, from the earliest period, constituted a part of the jurisdiction of English law, that jurisdiction has ever been modified by these two principles, and confined to the subjects, and as much as possible, to the territories of the Crown. The question whether offences committed upon the high seas can be investigated under our laws, or whether they are to be re- garded as having been committed in a foreign territory, turns mainly upon the question whether the ship in which they were committed were a British or a foreign vessel. It will be contended tliat, for the pur- poses of this enquiry, a foieign ship is to be regarded as foreign terri- tory. Although the extent and subjects of the jurisdiction of the Courts, for offences on the high seas, arc now re{;ulated by acts of Parliament, it is contended that, however general the rt'ords of a statute, it does not, ex- cept by express words, create any new jurisdiction. The statutes upon this subject merely su»--dy a remedy, and it will therefore be necessary to make some enquiry into the previous state of the law of England, and into the general law of nations as affecting this question. It is laid down in Vattel ch. 13, pp. 93 to 106, that children born in a native ship are native born subjects, and that those born in a foreign ship in the open sea are foreigners. The whole question of nationality is here discussed, and these principles are assuming extreme importance from the extensive emigration from Europe to the United States of America. Cites the Vi-ow Ilermina, 1 Robs. K. 160; Jacob's Law. Die. title " Alien" ; Russell and Ryan, 204 ; 4 C. and P. 394. In the two latter of these cases, it was held that none but a British subject can EASTKIt TKllM, lHi>3. r,;) III- iiiiiviclcd ill Kn^liiiid Utr dIIcmccn (•(mimittcd in a Utro.igii country. Ill livijiiiii V. Az-oftanl!^ I C;ir. iinil Kir. 20;l, tlio prisoner who rusidod at Smyrna, was convicted in Knfrlivnd, of "uirdcr coniniittcil at Sniyrna. upon the |)ors<>n ol'a I'orci^ni r : hut the prisoner was proved to have liecn born af Malta, witliin tiie (Queen's dominion.'), and was residing at Smyrna, nnder a passport irom the Governor of Malta, and llic ooiivic- lion was sustained npon tlie i^round ol' his livinji under IJritish proleo- lion, although in a foreign country. Tlie case of pirates is an exception to the genonil rule. They may be tried under any Jurisdiction, because they arc considered as having renounced all allegiance. J) Cli. Crini. Law, lODl. That a foreign ship is not subject to the jurisdiction of our law, is evi- dent from the passengers Act 15 and HI, Vie. c. 41. sec. .'iO. A I'oreign vessel entering a llritish port for certain purposes is retpiired to give a bond to comply with the laws there in force. No such bond is required in the case of a British ship, because she is already subject to the jurisdiction. In 1 Kent's Com. 2G, it is laid down as the principle of the law of nations, that no state has jurisdiction on the seas except in its own vessels. The statement of the case of the " Creole" by the late Mr. Webster, although not judicial authoi'ity, is an able state paper. The " Creole" was an American vessel, which put into the Baluunas with slaves on board, who were liberated by the authorities. Mr. Webster contends that a ship carries her uation.il cliaracter with her, not only upon the high seas, but in a Ibreign friendly port, and not only when she is there fi'om stress of weather, but when she has {sntered the port for purposes of commerce. In the case of the " Frederick", 5 Robs. R. 8, and also in tlio case of the '' Batavian", 2 Dods. R. 503, the character of the seamen on board was held to be concluded by the character of the sliip. The origin of the early Admiralty jurisdiction is involved in much doubt and obscurity, but the criminal jurisdiction of tlie Admiralty, which is now transferred to the common law Courts by statute 12 and 13, Vic. c. 90, was narrowed down to its present limits by statutes 28, 11. S c. 15 ; and ou II. 8 c. 23. Cites 3 Bl. Com. 100 ; llobarl R. 78 Co. Litt., b. 3 c. 7, p. -131) ; Bac. Ab. 528, *' Admiralty"; 3 T. R. 207 ; 1 Kent's Com. 301. 1 have not Ibund in any ofllie Admirally cases re- I'erencc to oll'ences not found in the statute, and there is no i)rovi;jiou niade in these statutes for the punishment of misdemeanors. The statute 33 II. 8 was j»assed for giving a similar jurisdictitm for olleiices committed out of the Queen's dominion?, as was ijrovidtsl liy statute 28 11.8, for offences commilled on iIk; high neas ; and Lord Mitnsjield remarked tliat tlie statute 2iS 11. 8 did nut i^ivo ;im I'xteuded jurisdiclion, but only an additional roiui'dy. In 'J'lu Kiny \. DciKirih', 1 Tuunl. J'J, II \v;u held ihui.tiic )uLoi;.i .Ouid ukI be triudiu i'^u;;iaiid 'I oc THE QT'EEX r. KINSMAN. lor fi miinlcr oomniitfod upon a 1lriti.s]i siilijort in I'liinn, Iwicnnso Iif whs n Spuniunl. S<'(1 also 1 l)(Hl.>t. R. 22.'i; 2 Doils. K. 23t>, 253; Curtis Ailin. Dijjcst. 257. Bm89, J. Kir. 53. You have not referred to the Qiteen v. Serva, 2 Car. and Johnston, Q. C. In Forbes v. Vice Admiral Sir Alexander Cochrane, and Hear Admiral Sir George Cockbum, 2 B. and C. 4G2, for harboring on board of IJritisli vessels tlic slaves of u British subject residing at Florida, then a Spanish colony, and refusing to restore them, it was laid down that an English ship is like a floating island belonging to the Crown, and that the slaves having voluntarily come on board were sub> ject only to British law, and entitled to the rights of British subjects. If these principles be sound, the prisoner is subject to the laws of the United States ; and how can he bo liable under separate and independ- ent jurisdictions for the same offence ? That which is considered as in- nocent in one country, may be held to be a crime in another ; and for the same offence the measure of punishment in different countries may not be the same. It is not reasonable that in this age of commerce and extended international relations, and between the most civilized nations, their subjects should be liable to conflicting jurisdictions. The Attouney General, in support of the demurrer, contended bi'ieHy against the perfect inviolability of those on board the vessel, un- der our law, and argued that when a foreign vessel comes into British wuter.s, (orlion of the world sulyect to the common jurislccl if-; own sllltjrcts nL'.'litwt (itl'ciicc; iMiiimilli'il .'luvw licfc. Ilcf'cv M' St;il. I'.'Mitil l.">, X'ic. i'. '.H"i. .•;(>(■. I'.l. I nisiiiiic lliiil il w;i ■ (lif inlnilidii to Ir.-iiislrr In (lie coiniiKm law ('oiii'.'J. :ill llic iiiri^ilifiion i;i\t'ii loilic Adniirnll y liy liic staliilcs ol' II!';;'"" " — ■[■■ well a', llic (tiiL''iii:ii jiiii-ilicliiiii olilic Court. 'I'lic slatnic of 'i'S lien. •S was iiri'c.;saiy, no! In'caii.c tlicrr was no jiirisdiclioii, hut Ix-causc tlif niMiuars' iiioili' oT puiii liaiciit. uillioii! (rial, (lieu prevailing.', was oilcn- ■.i\i- (o I''n!'lisln;'i'n. JI.M.i.ii'.n; ION, {', ,}, Do yoii know of ai>y tvi.als i'or misdcinciUKirs luidrr the slaliilc ol llfnr\- S. ;! ■ i //'/( '/.'.. I Iiav( not lound any cons iction-; lor luiiun' oncncrs in tin Adniir.ihy Court.-. ! asiinictlial liclorc ilic slatulo llu' Admiralty Iial jari diciion o\rr tile iid'orior oHiMici's. Conn/ii says (1 Com. J)!^!'. Ad- ii)ir:i!iy, !■',. l) \\v.U fin Admiral has jurisiliition over all otlonccs rom- mifl( d siijiri- i'lhn,/ umri' ; ;ia I in .-luoflu-r jtla'-c lie says, flial cscry ol- ii'iicc, ■iirh :i - riols, misdiincanor-^, iVc. shall Ikinc the same iinni^hmcnt a- irnrcrrcsc -lalutcs had (>ri;riual /luiisdiclion, indi'jicuiicnl cl'fiic siafuics, why was flic .-.latulc of Cioori.';o t pa -cd to coaler aiilhoriiy to fry oil'cuccs wherever eommltte(l. I contend that, under lie slalntc l'..'and l.>. Vic, ihe Court li:is power i)eyoiid thai cou- lericd l>_v the eld sfatiilcs. 'I'he recitals are jreiKTal, aiid ajipear to in- clude all ulliMices. In the ease of the •• Ci-eele". the •iaNes were taken out o( the f-liipli\ lore.' ollaw. Il file Coarl had iuijiroperly taken fiieui oiil. they would h.'.\c lieeu r":!.)i-ed. ll'iiiis |>risoaei' eaunol he tried here, tlicr( will he oe ri ni.ih . JiV lil.iss, .i. I(a\e you met with ar.y ease which slaws why the .^t.alute o!' ;> CciC.-^.^e I wa ■ pa-r-< d lo !.','iv<' iiM'i.--diction o\(a' liiilir-li suhjects. w he- i.'ua' witiiin . 'I'lie ConrI iioi\ proceciled to ;;i\ e jud;:iuciit. Ivf.i -, •'. We have no dltliiailty ir. decidinii' in favor of the pri.'iouor, riii^ Com I ha- no jiiri>dictiou. Tiie ca^c of (lie l>ra/ilian slaver (2 Cai. ;mil i'ii'.'- .">:'>. cited in /'/n- (Ji'i'tii \. C/url ) is in point. The doc- trine il. en- c-l,;l.ii.-l:ed ieiouni/;e,- the 1 rinciple- laid down hy I (.■//>/. lud I'.e di v-i,-iea in tliat ca c ha.- heen approved hy Ac/'/* and Wilson. U'l am. • .1 u id' r tin • liip a.- ,i I'ari 'I the soil of the country to which II: 'U • KASTKU TEUI\r, is:,;). 09 ill' li'lovi"-.-. Slic is. ns lins Iiocii s:n Jury, havin;^ bt'cn inslnietrd that the title, inde])endent- ly of the ])arol testimony, was in defendant, have in etfeet, so fonnd it, althonudi their \erdiet is for tlie ]daintiif ; and the jrcneral (indinji; can oidy be snstained by evidence nepalivinp; the defendant's title. This, induces the necessity for an apjieal to anotlrv "'.:ry. The argument in this res|)eet proceeds, of course, on the assiiinjition that the .Jury were misdirecleil (>n the point of law adverted to. Supi)o.--ing the Court e««/r/ negative tiie title tlnis fiiund to be in the defemlaut, yet, if upon any reasonable inferences from facts proved it can be supported, they oiiut. scroiHlhj, extrinsic evidence contrttdivlinii ble, unle:;s. to give ell'ect to the deed, it is indispensable to liav<' recourse to it. If that e\ idiMice be of opposite cluiracters, one in .•icciM'daiice with nil tlie terms of tiie deed, the other inconsistent with •ome of lliem, however minute, the former imist ])revail. I The learned C'oihim'I here went into an analysis of the e\ idenee con- liidinui that a large ])art ol" it was coiisisti'iit with the biMindari<'s mrincijde is tliat a party takes aecordiup to his deed, and liis possession must he referred to his deed, not Iiis deed to his possession. But a de- elsion sustaining the verdict will reverse this. The partition deed in thia ease is accomj)anied by a j»lan referred to in the deed by the words " j»er division". This plirase recpiired tlie aid of extrinsic evidenec to apply it to the plan (I R. and M. 11C>), and thia havinj;; been given, it ought to have been taken as a part of tho deed. Beaumont v. Field, 1 li. and A. 2 J 7 ; Pmldock v. Frodley, 1 C. and J. 9(1. This jdan was kept by a depository by the parties to the deed for whom he held it. ]Jy it the parties arc allowed eertain specified quantities by a line stop- ping at a stake. By this all the pai'tics are estopped, and therefore the pl.iintiff is estopped from denying his own deed ; but if this verdict be upheld, he is in fact permitted to do so ; and on the mere ground of an actual occupation by assent of parties in pai' contra% ening the deed. Cites 5 Ii. and C. G02 ; Gell v. Watson, cited in Sugd. P^st. 29t ; Co. Litt. 352, a ; Com. Dig. Estoppel, b., vol. 4, p. 1 9,'] ; 1 Salk, 270. But, the argiunent of the defendant's Counsel is met at tlic tiiroshold by the overi)owering influence of a class of decisions establishing the operation of verbal admissions and agreements touching boiuidaries, up- on the descriptive clauses of conveyances. A leading one of th<;sc cases was Woodbcrnj v. Gates. That case, after stating that the ancestor of one of the parties had derived his title to the land in dispute, from the ancestor of the other ]iarty, and after stating also as a fact that the ver- bal agreement whereby the boundary was fixed on the land, actually deprived one of the assenting parties thereto of a large extent of land, which was clearly his by virtue of his deed, decided that the party so thereby subjected to that loss of his estate, was nevertheless estopped from claiming the deficiency by a parol agreement with the other ]>arty, whereby a boundary was fixed and established, at variance with tiie de- scriptive clause of the deed. It is submitted if the i)arty was so estop- ped by the agreement in pais, what becomes of the estoj)pel by the deed, which the very case assumes? What becomes of that settled principle that "an esto|)pel against an estoppel sets tlie matter at large. and the truth may be alleged" ? It is not pretended but tiiat |)arol ad- missions respecting l)oundaries, like all other admissions, are addiicilile as constituting j)resumptivi! evidenee, and tliat th.ey may. as such, if un- contradicted, operate with juries eonchisively, but wlien efl'eet cannot be given to them without contravention of the languag it may be designated, i.- ly divc^t the man who makes rt, ^a mji'l'iou '6. liw ; !♦■'' |i ' Ilis Honor Mr. Justico IIallibuuton was absent in Europe tUiring Easter Tonn, and diil not return until after the termination of the pre- sent term. GESNER V. GAS COMPANY. July 25. Asphnltnm is included in the cxrc]ition, in rcrtnin royal pvnnts in tlip Provinrrof New Urimswii'lv, of " ixil coals, nr\i\ also all gold, silver, ami oiliur mines and minerals". The words " mines and minerals" in tlie exception, are to lie iindersloud in ilioir popular and ordinary, and not in tlieir scientilie nicanin;^. Trover will lie in tlii.s I'rovinca for minerals wliirh have been taken from amine out of the I'roviucc uud removed hero. Tins w:is an action of" (rover tried at Ilalira.x. in Easter Term 1S"il, before Bh'ss, J. and a petit Jury, for tlie eonver.-iuii of certain property de,^cribed as bitumen, ti-^pliallum, and mineral pitch, the jiroduct of a mine in llie county of Albert, in (he [iroviiice of New IJrunswick. It appeared liy (lie JudLii''.-! mimiles (hat (he plainlitfclainv d tis le.<;s4'e of tlio hind, originally <;;raii(ed to one Gcuryn Sfacis^ by grant given in evidence dated 8th IMareli, 181 JJ, described a.s a lot of land of 1U(» acns ; " Except and reserveil neverthele.-lcrcs, tmd do/u ,S(cvcs, 'hx-xd -'ItL Dectmber ibOU. TRINITY TERM, 185,?. 73 Lease from James, Dawson, and John Steves, to Christopher Milner, tlated 24th December, 1850. Assignment of lease from Christopher Milner, to plaintiff, dated 27lh December, 1850. Tlie material, the subject of the present action, was shewn to have been taken from a mine on lands contained within the plaintiff's lease, to have been shipped to Halifax, and purcliased and received by the defendants ; and a large body of scientific and otlier evidence was given by the })huntiff to shew that this material wa^ not coal, nor any variety of coal, but that it was asphaltum. It was, howrver, clearly stated by the witnesses that it was a combustible mineral, and that coal belongs to this class. The defendant gave, in evidence, a lease from the Crown to John and Peter Duffy, dated 11th January 1850, and an assignment thereof from those lessees to William Cairns, dated 13th December, 1850. This lease was of "all and every mine or mines of gold, silver, coal, or other minerals of every kind and description", on an area of one mile square, which in- cluded the land from which the article in question was taken. They also gave a large body of scientific and other evidence to shew that tliu material in question was coal and not asphaltum, and the evidence of John Duffy, tending to shew a license from John Steves, to take from the mine the article in question in this suit. A motion was made by the defendant's Counsel for a nonsuit on the following grounds ; 1st. That trover would not lie for the proceeds of a mine in New Brunswick. 2nd. That the material in question, whatever it was, was u miiu'iai, and so was excepted under the terms of the grant, and i)huntitf had no claim to it ; — And after John Duffy's evidence, this further point was taken ; — yrd. That the material was raised under a license from tiie o\vn(;r of the land, which precluded the phiintiflPfroHi maintaining this action for il. The learned Judge who tried the cause tiiougiit iIk' two hist ohjectiuiis well founded, but allowed the case to proceed, and reserved the points, lie left it to the Jury to say whether the mineral in question were coal, or any variety of coal ; for if not, it was of no conseerly submitted to the Jury. They were charged with the sole enquiry whether this was coal or not ; if not coal, that their verdict should be for the plaintilf. The Jury found for plaintilT", leaving the inference that they had followed tiic ciiarge — that the arti- cle was not coal. The question submitted ought to have been, whether it was a mineral or not, leaving the Court to give a legal interpretation to the exception in the grant. It is contended that the Jury ought to have considered the article in controversy not in its scientific sense, but according to the popular sense in which it had been always regarded. It was in evidence that when originally discovered, and after it was raised it was universally called coal. As such it had been sold, and used for various manufacturing purposes, shipped from the Province, and disposed of in a foreign country, under that appellation. That noithei- the Government which granted, nor the Court and Jury who were to de- cide upon the character of the article, were expected to be geologists ov mineralogists; besides, the evidence of scicntilic men who were (>xam- ined, left the question undecided whether it was coal or asphaltum, al- though they all agreed that it was a combustible mineral ; and if a mineral, the verdict should have been for defendant. J. W. Johnston, Junr., contra. The reservation in the grant, if il mean what is contended for on the other side, must have a very injurious tendency upon the rural population, in checking a s])irit of en(piiry. as mentioned by Hallhurton in his history of the Province, and in discour- aging the occuj)ancy of land,and ])re venting its sottlement.by taking away its beneficial enjoyment. Not only the soil and rocks, but even the trees growing on (he soil are defined in scientitic works to be '' inilamniable minerals". 'J'lie term ♦• minerar has acquired this large signification principnlly within the last few years, and since the passing of tliis grant. It not minerals ? Such a decision would leave the ((ut^s- tion unsettled, and not only so, but liable to continual changes. For the firliitrary (/t'rfti ol" >i'ientilic n\en are perjx'tually changing the classifica- tion fil'.Milistnnces : .Mini iliey are eonstantly embracing an increased mnn- ber dt' substances witliin the term mineral. This has already occurred -inec the |ias-;iiig of this grant, and no limit can as yet be assigned to it. It is no! elainieil that this ri'servation should be treated as a nullity. We eonteiid tliiit the words " mines and minerals" refer to the words " gold and silver", by which they are imniedisitely preceded, and not to the y()>v'(/>" claiiM' oC the sentence, which is disconnected in sense. "We contend that the reservation means "all coals", and also "all gold and silver, iind other iiiincs and minerals of ri lihe unfinr to gold and silver", 'i'liis will s.ri\ (• I (lert to ('\ cry part of the grant ; the grantee will get the Ijendit ol' iii-; '/I'aiir. ami llie le-o.'o ol'all that could have Ikhmi intended TRINITY TERM, 18.33. 77 to be reserved ; mid this conatruction will take away all absurdity from the frvnn(. Tills is tJKi coiistriictlon jmt upon the grant by the government, for it npiK'iirs l>y the Koyal inslrnctioiiis to tiie Governor of New IJrunswick, wliieh were read in evidence', at the trial of a eaiise reHi)ectinf^ tliese mine,-! wliieii look place in New l»iuiiHwiek, very recently, that certain speeilied minerals only were to be reserved, and that the general words " mines and niinerals" were not to be used in tlie reservation. In the grant of the jMagtIalen Islands, the particular minerals intended to be reserved are speeilied. The old grants in this Province idso were similar to the grant in this ease, but these general words being consider- ed too loose to convey away the subjtsets' rights, the recent grants con- tain a s])ceifie enumeration of tlie articles reserved. This change is presumed to have been made in consequence of a decision oi' tlie sub- ject by the late Chief . Justice Blowers, of which no copy is known to exist. The license from Sferes was not a l(.'as(!, but a mere license to take coal only. This licens(! was revokful by the subsetpient conveyance from Steves to his sons. Tappini v. Florence, '6 Eng. liep. ivl. If the defend- ants have sutt'ered any special damage by this revocation, they have their renuidy by action ; I.'J M. and W. 808. In this <'ase, although the license was paid for, it was held to be revocable, and that the only way an irrevocable right could be obtained was by deed. Also, H Eng. Uep. oO.") ; 2 ]M. and S. 497 ; 4 N. and M. 505 ; 7 Dow. and Ry., 783 ; Co. Litt. 42, a. Johnston, Q. C, follows in opposition to rule. Itl^difficult to over-esti- mate the iini)ortance of the principle to be determined, as it involves inter- ests of immense value. We come to the consideration of this question un- der a disadvantage. \Vc ore dealing with reservations long since made, and respecting which we have formed previous impressions by which we are influenced. I believe that we cannot, consistently with the rules of law, give the extended construction contended for on the other side. They must ask either too much or too little. I complain of the learned Counsel. They rest in mysterious reserve, and wish to blow us up with masked batteries. They have cited a host of cases, but not explained their meaning. First, With respect to the two objections, that trover will not lie in this province, and that there was a license. 1st. This Court is open to all actions wherever they may arise, unless tied to the soil by legal bonds. The article now in question may have been incidental to a mine, but it is now a chattel. It is as though a fix- ture were removed from a house here and carried to Annapolis, and in such wise, would not trover lie in Annapolis ? 2nd. Tiiere is no foundati(m in /«(■/• for tliis nbjcctinn, ind'piMvlrnt of c;r,sxKU v. c;as anrr.VNA'. ' it fii''< ills ti' the m:iiti question. Tlic Hci'nsc was to take cndh until n certain time ; aspiialtiim was not inclnded in the iii'en.se. I'lcsidcs, all iSferrs permit- tod JJiiJf}/ to do was, to take wlint lie had a leujal riirht to take, and no more ; and if this be asphaltiim, na the Jury have Ibiind, it is not contain- <'d in the lieense. Upon the main ground wc come first to a narrow point. Is this roiil or not ? If this be ooal, our case is at an end. This is a (piestion of faet, and it has been settled by the Jury, and need not now bo, dis- <'ussejcct of the grant to include it in that exception ? I can see no such evil consequence, and it is worthy of I'cmark, that the owner of the soil, ,/u/tn Steves, who held under a convevance from tho original j^rantcc, saw none such ; hut permitted the lessee of the mines to enter ujion his soil, and work the mines for upwards of a year, for wliich permission to I'nter and work, he, as the owner of the land, re- eeived a remuneration often pounds I'or the first year, and the second had coninienced before any right, under his grant to the mines below tho surface was asserted. I would not suggest that if .iny snch right exist-? ed, he was thereby debarred from asserting it ; but it is plain that he did not, at first, deem the claim of the lessee to be destructive of his right of owiuM'ship of the land under the grant. Tlie li'iral constnietion to be jiut upon !lie exception is, th.at it includes coal", and other uiinev. and minerals. The .liiry have ibund that the TRINITY TKRM. 18oa. U mineral in dispute is not coal, and the Report tells ns, that a large body of scientific and other evidence, warranted them in coming to that con- clusiun ; but it adds, " it was, however, clearly stated by these witnesses that it was a combustible mineral, and that coal belongs to this class". I do not think that exception is confined to minerals of the same class with coal, but I have no doubt it includes all of that class. This being the case, I am of opinion that the subject matter in dispute, is a mineral included in the exception ; that the ownership of it did not pass to the grantee of it. Sieves ; consequently, that the plaintiff can deduce no own- ership from him ; and not having any property in the article, he can- not maintain trover for it ; and, therefore, that this rule to set aside the verdict in his favour must be made absolute. Among the papers that have been sent to me by the plaintiff's attor- ney, in this case, I find a copy of the Royal instructions, relative to the passing of grants in New Brunswick, dated 18th August, 1784. On referring to my minutes, I do not find any reference to these in- structions ; nor do I find any argument respecting them ; and it would not be right to give either party any advantage that might be derived from them, until both had been heard. These instructions direct the Goveniors of New Brunswick, that in •nil grants made by them, they cause a clause to be inserted reserving to the Crown, all coals, and also all mines of gold, silver, copper and lead. The reservation in the grant to Steves is more extensive ; but it passed nearly thirty years after the date of these instructions, and in that inter- val they may have been varied ; they form no part of this case. Tliey are not alluded to in the Report, and can therefore have no effect in our decision, and I only allude to them here, to let the parties see that they have not pass unnoticed. With the strong opinion which I entertain and have expressed, respecting the reservation in the grant, I do not feel it necessary to enter upon the consideration of the other objections to the verdict for the plaintiff, one of which was made a ground of non- suit at the trial, and was then deemed by the learned Judge not to be without weight. The report states that the material in question was all raised from the mine in quesvion before the spring, but it was not very clear whether it had been raised by the Diiffys before, or by Caimes after, the assign- ment. Now, I doubt whether the plaintiff could have maintained trover, supposing Steves could have transferred this miporal to him, for any quantity of it that was raiseu by Duffy before his license was revoked, which, according to the evidence of John Duffy, did not take place un- til after the lease to Caimes was executed, and as the report states that it WHS not very clear whether it was raised either before or after the assignment to Cnirnes, it raises a doubt whether this mineral was raised before or after the plaintiff's title would have accrued under the assign- m »ii IIKSNKR v. tiAS CO.^IPANV. mcnl of Milner's loaso f«» liitn. I woiiltl not be niitlerstood to cxpros^ a positive opinion upon this [)oint, as it is quit'j uni\ueessi\ry to do so. I think, however, there is nothing; in the first objection, that trover would not lie in Nova Scotia for the proceeds of a mine in New IJriuis- wick. "Why a man who had i)03!iessed himself of the property of anotlier in St. John, should deprive the owner of his right to recover it from him by crossing to Aima[>olis, 1 cannot comprehend, and I can see no dis- tinction between a mineral,and any other description of personal property, tl>e Aaluc of which might be recovered in an action of trover. Bliss, J. This was an action of trover for a certain mineral produc- tion of a mine, on land in tiie Province of New Brunswick, held under a grant from the Crown. The grant contains the followingcxception : — ^^Exceptingandreserving, nevertheless, out of this present grant, to us, our heirs and successors, all coals, and also, all gold and silver, and other mines and minerals". The mineral in question, after a long investigation, in which much and very conflicting evidence was given on the point, was found by the J ury not to be coal, but it was agreed by the witnesses on both sides that it was n combustible mineral, to which class coal also belongs. The case now comes before us, on a ride nisi, to set aside the verdict for the plaintiff, and to grant a new trial; and the main question that arises thereon is, whether this mineral js within the exception in the grant, for if so, the plaintiff has no title to it, and the action cannot bo. sustained. At the trial, a motion for a nonsuit was made, on the ground that it was witlun the exception. I declined to nonsuit, thinking it more proper that the subject should receive the full consideration of the wliole Bench ; but I expressed my opinion in accordance with the motion. It has since been very fully argued : my opinion, however, remains un- changed. It was urged very strongly, by the plaintiff's counsel, that if tliis ex- ception is to be taken in its most extended sense, and all minerals arc to be included within it, every thing granted would be then included ; the whole soil, and all substances of whicli it is composed, being mintv rals ; and so the grant would be repugnant to itself and void. I do not feel myself much pressed by this argument. There is nothing, I think, in the grant of the land itself, uiconsistent with an exception of all mines and minerals therein. They arc perfectly and intelligibly dis- tinct in theii- nature, their use, and enjoyment. The intention of the Crown is apparent on the face of the grant ; we are not to seek, in the language or classification of science, lor a meaning of the terms used which it could never have been intended they should bear, and thus make the grant repugnant to itself; but rather, — especially to avoid such an effect, — to adopt the simple, the more obvious, and the popular signi- TRINITY TERM. 1850. «7 llcalion ol' tlio words, !■>• which olW/t inny ho plven to every part of tlic j^rant. Now a minoral. in ils more usual and popiHar sensi', is matter ilii}T out of ti mino. niid a mine is undorstood to be below tiie surface of the soil. When we tind, then, the land granted, with an exooption of mines and minerals, thus coupled together, I road it as referring only to minerals which are oblained by excavation, the full ownership of the land, with this exception being in the grantee. Such an exception, in deeds and leases, is far from an iniusual one. In Harris v. Riding, I M. and AV. 60, it is almost identical with that of this gi-ant. Tliere, the person who was the owner of the land, and mines imder it, conveyeil the land, excepting and reserving to himself, his heirs and assigns, all jind all manner of coals, seams and veins of coal, iron ore, and all other mines, minerals and metals, &c., and the meaning and effect of it, is thus spoken of by Parke, B. : " It is clearly the meaning and intention of the grantor, that the surface shall be fully and beneficially held and enjoyed, by the grantee, he reserving to himself the mines below. By reasonable intendment, therefore, the grantor can be entitled, under the reservation, only to so much of the mines below, as is consistent with the enjoyment of the surface, aeconling to the true intent of the parties to the deed". Alderson, B. puts the matter into a few words : " Here are two i>ersons, one who has the land above, and one who has the mines below". The cases of The Earl of Ross v. Wainmatt, 14 M. and W, 859 ; 2 Exch. Rep. 800 ; and of MicKlethwaite v. Winters, 5 Law and Eq. 526 ; while they support the same view, and establish the perfect consistency of a grant of the land, with an exception of all mines and minerals in it, shew, also, to what extent the term "minerals" is carried ; and that under it, while stones on the surface will not be excepted, stones which are obtained from a quarry, below the surface, arc within the exception. The first of these cases arose imder an allotment act, by which certain waste hinds were taken from the Lord of the manor, and vested in the commoners, excepting all mines and minerals, of what nature or kind soever, lying or being within or imder the lands. Parke, B. says, the term "mineral" here used, though more frequently applied to substances containing metals, in its proper sense includes all fossil bodies, or mat- ter dug out of mines, for which he refers to Johnston's dictionary ; and mines, according to Jacob's law dictionary, " are quarries or places where any thing is digged". Beds of stone, which may be dug by mining or fiuarrying, are, therefore, properly minerals ; and so we think they must be held within the clause in question, and yet he admits that the clause in the act respecting the working of the mines, leads to the supposition that the Legislature intended to reserve metallic minerals only. The other case in 5 Law and Eq. Rep. 526, was, also, under a similar inclosure act. In this latter, the Lord was, when the act passed en- «s (JK«NKU V. GAS COMPANY. .tt I It ritlfii to llio i-tmis uii«l iniiu'rals ; but tli«! not ilid not lucittt li'm piirtuMi' ]iir ri^rht. It Kiivr ccrtiiiii uIIoIiiumiIh (o tho ooiuiuoiuts, in lieu ot'tln'ir i'i);hts, nn wortls used in tho not, "'any ooal or other minerals", lluf. Alderson, U. asks what is tho dirtoronoe between any other and all other. Ho says, " tho words, any eoals or minerals, mean tho same as any eoal or other minerals, and the exooptioii therefuro extends to all minerals, and stone is included". This docs appear to me a very clear and conclusive authority, on the ef- fect of the reservation in question, particularly adverting to Martin, 11. " that *hc act is eipiivalent to a deed of conveyance, to the allottees of the several allotments, reserving to the Lord the mines and minerals. Stone dug out of n «iuarry is a mineral, and mines arc quarries, or places where anything is dug. AU stones, not on the surface, but got from quarries, are minerals, and are the property of the Lord". It is not necessary, however, to tho decision of this nuittor, to go to the full extent of those cases, for if, as it was argued, the words " other mines and minerals" arc to be referred to and explained, by those which are before expressly spociliod, and thoir moaning to be limited to such as are of a similar '.character and descri)>tion. I still think that the mineral in question was excepted out of this grant. 1 cannot, as the counsel for the jdaintitF urged upon us, restrain the meaning of those general words, to those ouly which are innncdiately antecedent to them in the sentence. Where th n-e is nothing to indicate that such was tho intention, and the words will as aptly and as correctly apply to all that has gone before, I know of no rule of construction, which can make them applicable to a part only, because it happens to be last expressed. Wo can as well use tho expression '* such other mines and minerals, as arc ejusdem generis with coal, as with gold and silver" — niuch more fitly and appropriately, indeed. Gold and silver are the precious metals, tho mines whence they are extracted are Royal mines, there are no other mines and minerals, or metals, strictly speaking, which can be said to bo fjutdim generis witli them. All others arc spoken of in contradistinction to them, as base mines, and, though gold and silver are minerals, as arc all metals, yet the term and description, which would best and most fa- miliarly describe them, would not be "minerals", but "metals" or "metallic minerals" j juid if we are to limit the gcuernl words to those which imme- diately anteccde thorn, we must read the sentence a? if it ran " except- TUINITY TEUM, \HM. at inf; all coala, and also gold uiul ailver, and other metallic iniiicH and nii- iick'iils" ; whvnce, if we rutbr the gunural words to all that go bvt'orc, wu Hindi liavu nothing to alter or supply. It appears to rau, then, that not again-l 1-' JM> (JKSNEU V. GAS COMPANY. ^ii'll r^l' Ihf intent or iJiirpoit of the Kin;; in his grant, but the grant, notwith- Ktunding thotfu wordn, s/iuH be ftdeti in an usual sense and understandiny." Such is the way in wliich 1 hiivo endeavored to give its proper con- struction to this grant ; and with regard to the exception, supposing it is to be considered us if it were found in the deed of a subject, tlio rule is thus stated in Sheppard's Touchstone, 100 : — ^" that thougli it is always taken most in favor of the feoffee, yet it is a rule, that what will pass by words in u grunt, will be excepted by the same words in an exception". On these principles, and under these authorities, I conclude that the fxception in the grunt embnices the minerals in question, whether that exception must be taken to mean nil mines and minei-als, when such will of course be its cfi'ect, or whether it can mean only mines and minerals of the character and class of those already enumerated, for I hold these words etpially applicable to all that are before mentioned. To receive any meaning, they cannot include anything which bears any close analogy to gold and silver, and must, if confined to metallic mine- rals only, include under that term some which, view as such in the pre- sent day, are as unlike gold and silver, or even other melnls so called, such as copper, lead, iron, &c., as can well be conceived, apart from sci- entific arrangements. If on the otlier hand we hold, as I do, that these words apply to mineri\l3 of a like character and class with coal also, nothing can have a more appropriate reference to them than the mine- rals in question. During a protracted trial often days, the sole question, and a very perplexing one, was whether it was or was not coal, on which point, as we are informed after a still longer enquiry, a Jury in the neighbouring Province has arrived at a different verdict, finding it to bo coal. Chemists and geologists appear much divided in opinion, respect- ing the proper character of this mineral, and the scientific world may possibly hereafter place it in that class from which our Jury have ex- cluded it. If the case, indeed, had arisen as to the meaning of the grant, at the time when it passed, in 1813, it may perhaps be doubted whether, with the light which science had then shed upon the subject, any other conclusion could then have been formed than that it was identical with coul itself. We must, however, take the case as it stands, nor have I allowed any such consideration to influence my opinion. I have not thought it necessary to considei the other points, which were so fully argued at the Bar, as according to the view which I take of this question, the rule for a new trial must be made absolute. DoDD, J. and DesBabbks, '. stated that having been engaged on the circuits since the argument of the cause in Easter Term, they had not had an opiwrtunity of preparing written opinions, but that they con- curred in the opinions of the Chief Justice and Bliss, J. Rule for new trial made absolute. TRINITV TERM, 18M. tn McDOUGALL v. McDONALD. July 12. A stAj of proceedings by rule for iccurity of costs, opor.'ttcs against tho plaintiflf only. Ritchie for defendant moved for security for eoats on tlio ground of l)laintift" being an absent or abseondinjj; debto.', and that tho suit wa.s brought for benefit of the assignees, and also for a stay of proceedings until Hccurity be filed. Johnston, Q. C. objects to tho form of the rule which requires a stay of proceedings on the i)art of the plaintiff only. Coi:rt. Tho rule is reasonable. "We have no doubt such was th« true meaning of tlic rule wliich lias always been adoi»tetl in practice, al- tliough its language was apparently ditfcirnt. l?ulo granted. her. on had :on- DONOVAN V. MAHAR AND FANNING. July 12, When the plaintiff's dcmnnd has been reduced hy cash imymentshelow ten pounds in tho City ot Halifax, the Mayor's Court hn^ cxelu^ivc Jurisdiction. Young, Q. C. moved to enter judgment on an award made by /. IF. iiitchie and G. A. Blunchard, Esquires, upon alftdavits, by which it appeared that the arbitrator.'? bad power, under tlie rule of reference, to decide as well between the phiintitf and tho defendants jointly, as (in case they should see fit) between the plaintiff and each of the defendants severally. They found that a particular sum of ninety-five pounds, paid by the defendants, had been paid by them on their joint account, and not on account of one only of the defendants, as was contended by tlic plaintiff. By giving this credit to the defendant."; jointly, tlicy reduced the plaintiff's demand against both defendants to the sum of £.j 143. 8d., and declined to investigate the state of tlie accounts between tho plain- tiff and the defendants, severally. This application having been previously made to the Chief Justice at Chambers, His Lordship thought that the amount having been reduced by cash payments below the sum of ten pounds, and tlie cause of action having arisen, and all the parties being resident within the City of Ha- lifax, the jurisdiction belonged e.vclusively to the Mayor's Court, and therefore refused the application. Voung, Q. C. now contended that this ,LiS9, .J. Not more than they would have done by filing a plea and going to trial. CoTRT. Wlien the amount claimod by plaintiff is redneed by cash payments below ten pounds, and the defendants n.'side in the City, as in tliis ease, you must sue in the City Court the same as if it wen; original- ly only that amount. Tiic arliitnvtors have exjn'cssly found that fact in this case, and therefore you cannot enter judgment for the j)laintiff. IJule refused. .TOriNSTON V. MATllESON. July 21. A iiIofiilinK miiPt, be scrvod, ns wfll ns filed, before the jirotlionolnry is instructnl lo Tn;iik IX ili't'iiiilt Cor wniit (il'siTvicc. 'I'lic Oiur; will iir>t. set i\At\(! n relen^e ohtnined. ticn(1iri}r suit, liy dcfcndnnt from pliiiiititf. nor ('oinpcl thi; ikl'i'iulaiit to pny ptiiintiff s mtonioy his osis, '.vlitv*' tlicre has b«i 11 no colliisiyn. This wa-; a ''ule nif! obtnincd ixl Pietou in .lime Term, on behalf of the plHiutiri""* attorney, to si/t u, debts to the plaintifi", who brings tlii-i action to rooovor whaiever procerds Mr. Afcf/nson mav have 94 SEAMAN V. CA^rPBELL. :i I'll!: i.lvi: collected under the assignment. The declar.ition was filed, and the usual plea put in, and then a demand of replication was served, for want of which a default was marked against the plaintilF by Mr. Matheson, after the fourteen days had elapsed. After defendant had left the office, Mr. Skinner, the ])rothonotary, called to him and asked him if he would not accept a paper, which is said to have been a copy of the replication. The question now arises whether a copy of the replication should have been served upon the defendant within the fourteen days. It is given OS a reason for not doing so, that the defendant lived at a distance of seven miles from Pictou, but I am of opinion that this is no answer. It was contended in argument that a plaintiff cannot release without thn consent of his attorney. To that doctrine I cannot assent in a case like the present, where collusion and deception are expressly negatived by the affidavits. With respect to the costs incurred and taxed in a previ- ous stage of the cause, those were payable independently of the subse- quent proceedings, and the release is no answer to and ought not to af- fect the right thus acquii*ed. The other Judges concurred. Rule accordingly without costs. i ^ :m V' i; LESSEE OF SEAMAN v. CAMPBELL. July 28. It is innttcr for the discretion of the Court, wlietlicr a defect in the Jnry lists or in the panel, which has not been made a ground of objection at tlic trial, is a sufficient cause for setting aside a verdict. The omission of the residences and occupations of the .Turors, in the lists returned hy the Justices, held sufficient ground for quashing indictments found by the Grand Jury, and for setting aside special Jury panels in causes not tried, but iiot sufficient to disturb verdicts in causes where the objection was not luadc at the trial, unless it bo shewn that injustice lias been done. This was an action of ejectment tried at Amherst, in June Term, be- fore Dodd, J. and a petit Jury, in which the Judge recommended a non- .suit. This being refused the trial proceeded, and resulted in a verdict for the defendant. Certain supposed defects in the Jury lists having been discovered, and brought to the notice of the Court, during the term, but subsequent to the trial of this cause, rules nisi were granted by His Honor the presiding Judge, returnable to the present Trinity term, in the present and several other causes, in order to obtain the opinion of the full Court upon the questions raised. Rcvd. Laws. c. 136, sec. 5. " The Sessions shall from among their number appoint a committee of five Justices, resident in different sections of the county or district, for the purpose of preparing and revising the Grand and Petit Jury lists of the county or district, and shall from time TRINITY TEUM, 18u3. 9§ to time appoint others to act in the room of such as may die or be re- moved. Sec. 6. The committee, having been sworn, shall have free access to all public papers and accounts, and shall prepare and annually revise the lists, and shall transmit copies thereof to the prothonotary. Sec. 7. Tlie lists of grand jurors shall contain all the Christain names and the suniames of all those qualified to serve as Grand Jurors, their places of residence, trades, callings, or employments, and whether senior or junior, or any otlier appellation by which they may be usually called or known. Sec. 8. The list of petit jurors shall contain all the Christian names and tho surnames of all those qualified to serve cither as Grand or Petit Jiirors, their places of residence, trades, callings, or employments, and Avhether senior or junior, or any other appellation by which they may be usually called or known". Johnston, Q. C. on a former day moved for a rule absolute for a new trial on tlie lollowing grounds ; — 1 St. That there were many qualified persons in tlie county of Cum- berland, whose names were not contained in the Jury lists from which the panel was drawn. 2iid. Tliat to the names of the persons included in the lists were not {idded, their places of residence, trades, callings, or employments, and whether senior or junior, or any other appellation as required by tho statute. Tho facts were embodied in several affidavits, from which it appeared that the Justices appointed by the sessions had returned a list, which waa composed of a distinct list for eacli township, attached together, but that beyond this general indication of residence, the designations required by the stntute had not been annexed to the names of jurors ; that there were several names on the lists which appertained to two or more per- sons on their respective districts. Tliat there were many qualified per- sons whose names were not included in the lists, and that these defects were not known to the plaintiff until after the trial. Johnston, Q. C. It is an essential requisite of our law that the dis- tinctive appellation of each juror shall be ascertained by the revising justices and entered on tlie list. This was enacted in order to prevent the Sheriff from exercising a power of selection, and from choosing dif- ferent persons from those intended, which he might do in many cases if the names were not distinguished. This system was first adopted in 1848, since which period the law in this respect has been as at present. A similar defect occurred in Cumberland in 1849, and an act was passed in 1850 to obviate the difficulty by legalizing the lists until they could be 96 SEAMAN V. CAMPBELL. revised ; but the principle was not lUtercd. Whether the law is reason- able or not, it is certainly plainly its intention to take away from the Shcrift' all power of selecting jurors. On these lists there arc a consi- derable number of names thus undistinguished, and the Sheritf has thereby been placed in a position in which he has been, or may be, com- pelled to exercise a discretion, as to which party he is to serve. He must either exercise his own wjll, or take the direction of the parties concerned, which would be monstrous and impossible. In the former case he exercises a power of selection without being responsible. If he Ruminon neither, he does not summon the Jury given by the law, while it is quite probable that he may summon parties who were not intended to be placed on the list at all. It may be said that the plaintiff has pre- cluded himself from taking tliis objection by going to trial before the Jury, but that if met by the aiidavits which shew that his counsel did not know of the defects until after the trial. Authorities will be produced subsequently, but at present I rest on the law of Nova Scotia in which the principle is not only clearly laid down, but is strengthened and ex- plained by the subsequent enactment. DoDi), J. In the former cas^ which occurred in Cumberland, to which you have referred, there had been no trial. Bliss, J. The authorities make a very material distinction on that point. Johnston, Q. C. The law is so palpable that the authorities must be very strong to establish such a distinction. Is a suitor to inquire re- specting the legality of the appointment of every olftcer of the Court, be- fore he goes to trial ? J. McCullij; in shewing cjuise, contended that the facts before the Court were not sulliciont to sustain the rule. These lists were, in fact, eighteen months old, and all the individuals who were sworn to as hav- ing been omitted from the lists, although now qualified, might have been disqualified at the time they were made up. The defendant's attorney and counsel swear that they did not know of the defects before trial, but it does not appear that the plaintilFwas ignorant of them, nor is it sworn that the plaintifi' had any merits, that he had not a fair trial, or that jus- tice was not done. There were at least some qualified jurora on the lists, and it does not appear but that all the jurors who tried the cause were qualified, nor is it sworn that any of the persons named on the panel were of the number of those where there were more than one of the same name, and as the plaintiflT has not shewn that the supposed de- fects in the list touch this case, the Court will not presume it. But I contend that the lists are not defvctivc. They are made up in distinct TRINITY TERM, 1853. 97 iiMts for each separate district, and the districts are named on the lists. The place of residence is therefore given. The act requires tlie inser- tion of their ^ places of residence, trades, callings or employments. Court. The word "or" refers to the three last words, " trades, callings, or employments". The act requires the place of residence, and also i\vt trade, calling, or employment. ./. Mc Cully. The argument that several names were left out cannot bo sustained unless it be absolutely requisite that every qualified name bu on the lists. The statute is directory. If every qualified name must be on the lists, we never can have a qualified Jury because parties are continually coming of age, and othenvise become qualified. Again, if it is io be an objection to the list that unqualified persons are on it, we arc as badly off because parties are continually becoming disqualified by age and otherwise. The lists having been made up, ought not to be attack- ed on alight grounds, especially where, as in this case, the Jury have dis- charged their functions. As to the Legislature having passed an act to remedy this supposed defect on a particular occasion, the fact was that another difficulty having arisen, and the Legislature being about to pass an act to remedy that difficulty, used language sufficiently general to ap- ply to a case like the present ; and as to there being double names on the Jury lists, and the possibility of the Sheriff selecting and summoning the wrong party, that objection cannot apply to this case, because it has not been shewn that these are double names in this panel. Cites BrunskiU v. Giles, 2 Moore and Scott, 41, where the brother of the plaintiff's attorney summoned the Jury and the verdict was sustain- ed, because the defendant did not shew that he had used all diligence to discover the defect before trial. In The King v. Sutton, 8 B. and C. 417, one of the special jurors was an alien, but the verdict was sustain- od because the defendant had an opportunity of making his challenge, but had preferred taking his chance of a verdict, altho;'.gh it was sworn that the defendant did not kn f the objection before trial. The King Tremearne, 5 B. and C. 254. In this case the verdict was set aside be- cause a person disqualified in respect both of age and property, and whose name was not on the panel, sat on the Jury at the trial of the cause. No such defects arc shewn in the present case. In Hill v. Teates, 12 East. 229, the father was summoned, and the son came and Silt on the Jury, and the Court refused the rule to set aside tlie verdict, holding that it was a matter within their discretion, and that no injustice had been shewn. Also, Willes 484 ; 4 M. and S. 467 ; 1 Bl. Com. 348. In this case the plaintiff, as is admitted, failed from a defect in his tes- timony. Ho had ft fair Irial, and the Judge at the trial recommended a nonsuit. •8 SEAMAN V. CAMPBELL. fc'i'l!' ■ = s Stewart replies. The plaintiif rests on the law of this Province. Are the parties whose names are on this list Jurors, or are they not ? A le- gal Jury is a material and necessary part of the Court, and although not permanent officers like the Judges, the Jurors are as indispensable in those proceedings where their assistance is required. In The Queen v. O' Connell, 9 Jurist 34 to 64, this question arose. In Ireland, as hero, the challenge to the array was abolished. The law of Ireland author- ises the Court in cose of defect in the Jury list, to go back to the list of the previous year, and it provides a judicial officer, whose duty it is to determine annually as to the qualifications of the Jurors, to strike off those who are disqualified, and to add others. In that case a list had been returned by the Recorder, the officer whoso duty it was by law to revise the lists, but a part of the lists had been fraudulently abstracted by some unknown person. Tlie Jury was objected to by challenge, to which the Attorney General demurred. The case came before the House of Lords on appeal, and the decision was, that this was not a ground of chidlenge, because the effect of the alteration in the law, had been lo take away the right of challenge from the Sheriff, and with it abolished the challenge itself. But at the same time it was acknow- ledged that there was a remedy, without pointing out where that remedy was. We submit that the remedy is by summary application as in this case, and that the defect in this case is the same as existed there, inas- much as there are shewn to be many qualified persons whose names are not on the list. The next objection is, that there are no designations to the names. In most places there are many persons of the sam« name. It is not ne- cessary to shew that such is the case with this list. The fact that it may be so, has caused the Legislature to step in and provide against the 2)os3ibility of fraud and collusion, arising from that cause. It is not a question of justice or injustice. It is a patent defect affecting the valid- ity of every proceeding. This was no Jury. Bliss, J. If there be but one man on the list who is disqualified, i» there no Jury ? It is the same principle, only a stronger case. Stewart. I think not. without authority. It is as if a Serjeant at law went on the bench Halliburton, C. J. The law requires the Judges to be appointed from among Barristers who have been five years in practice. Suppose one were appointed who had not been five years in practice ? Stewart. In the case of 4 M. and S. 467, the objection was taken at the trial by the defendant, but the plaintiff went on, and the vci'dict was TRINITY TERM, 1858. W IS ited ose set aside. Here the plaintiff did not know of the defect which distin- guislies the case. • Johmtotiy Q. C, On the same side, rested on the law of tiie Province, under which he contended this was not a legal Jury, and if not, the pro- ceeding must be irregular. The plaintiff has not in this case taken the chance of a verdict, because he knew of no other chance. He had no choice. The affidavits state that not only the lists from which the panel was drawn, but the panel itself was defective in not having any desig- nation to the names beyond the general designation of the district at the head of the respective lists. This is not even a sufficient designation of ihe residence, but the particular part of the district ought to be given ; for in an extensive district there may be many of the same name. The Act is very particularly framed so as to prevent such confusion, and is so particular as to require that in addition to the residence and occupa- tions, the list shall distinguish between senior and junior. In the cases cited there was a Jury, although some individuals might be liable to ob- jection, but here there was no Jury at all. The whole list was defect- ive, as none of the parties were qualified as prescribed by law, for want of compliance with its requisites. The cases cited are all distinguishable not only on this broad ground, but in their individutU cireumstances ex- cept HiU v. Yeate$, which was obviously overruled by Rex v. Tremeame. There were several other causes of a similar nature to the present be- fore the Court, some of which had been argued, and in others the coun- sel engaged had declined further argument. One of these was Dicketj V. Nugent, on a rule to set aside tlie special Jury panel in a cause which had not been tried, and another, The Queen v. Paterson, in which an in- dictment had been found by the Grand Jury. In Lessee of Watson v. Watson, the circumstances were similar to tlic present case, and in Acl- erltf V. Pineo, the plaintiff had submitted to a nonsuit, wlilch lie now en- deavored to set aside on the ground of a mistrial. These several causes are all adverted to in tlie following opinions of the Judges. Halliburton, C J. After looking into all the casies which have been cited, I find it to be quite clear that the objection taken is one upon wliich the Court is to exercise its discretion, and I think we cannot do better than adopt the language of Jiest, J. in The King v. Hunt, 4 Ti. and A. 4!J0. Tlie objection in that case, which was an information for a libel, under which the defendant had been convicted, was tluit only ten special Jurymen appeared, and two Talesmen were sworn, when two of the non-attending special Jurymen had not been summoned. The whole Court were of opinion that the verdict should not bo set aside on that ground, and Bast^ J. said, " It is distinctly staled in Dovef 8)1' 100 SEAMAN v. CAMPBELL. V. Ifobson, 2 Marshall 154, by Lord Chief Justice Gibbu, that applica- tions of this sort must be to the discretion of the Court, and that they will, if justice requires it, accede to them. From any other way of con- sidering the question great mischief would ensue. In cases of felony or treason, where a party has been acquitted, it would follow that the Crowur by proving an omission by the Sheriff to summon one Juryman, might try the case a second time. Taking it to be an application to our dis' eretion, is it shown that any injustice has been done ? The rule is this : — if the officer has not done his duty, he is to be punished for it, and if bis omission has actually prejudiced the party, then it is in the discre- tion of the Court to prevent injustice being done, by gramting a new trial. In this case tlte omission is not shewn to have been prejudicial to this defendant, and therefore I think the rule ought to be refused". Now, in the exercise of our discretion upon this objection to the ver- dicts which have passed in the cases of lessee of Watson v. Watson, antl lessee of Seaman v. Campbell, I ask, in the language of Best, J., already cited, is it shewn that any injustice has been Aone ? None such wa» shewn. The labor, expense, and anxiety of a trial has been sustained by the parties, and I cannot see any reascm why that should be again gone through, when tlie verdicts ai-e not complained of, because the ma- gistrates whose duty it was to return the Jury lists have not done so. As Best, J. observes, they may be punislied for it, but unless the omis- sion have actually produced prejudice to the parties, we ought not to disturb the verdicts found by the Jurors they did return. But monstrous would it be to take off a nonsuit to which the party has submitted at the trial, upon the grwuid of an objection to the Jury lists, when the Jury could have nothing to do with oi-dering a nonsuit. But in rases where the objection is made before the trial, and where no snch expense has been incurred, there the Court, if it is still to be considered as a matter on which they are to exercise their discretion, x\l\ at all tinv;s listen seriously to ol)jeetions founded upon the conduct of those upon whom the important duty of returning Jurors is imposed ; and as it clearly appears that the directions of the law have not been ♦•omplicd with in the county of Cumberland, I think the ol)jcctions to the indictment fmuid l>y tlie Clrand Jury in the case of The Queen v. Pat- tfivson, and to the special Jury in l>tchey v. Nugent, must prevail. If these were mere arbitrary directions, still as the Legislature have thought fit to adopt tluMU, thoy must be complied with. But they are, in fact, wise and necessary. Names are indispensable to distinguish one individual from another in the intercourse of society. Where many in- dividuals bear the same name, much confusion would ensue in the busi- ness of life, if some addition were not adopted to distinguish the one frojn the other. The Legislature have directed this to be done by inserting the trades, cidlings, and places of residence of those who shall be returned TRINITY TERM, ISflS. lUi to serve as Grand and Petit Jurors. These directions have not been coinpUed with, and the omissions are of such a nature as to leave tho Slicriff in douot who lie is to summon to peiform the important duty of Jurors. It has been urged that the objection should not avail in the cases of special Juries, because there the parties have seen the panel, anu have struck the Jury ; but I think that of little consequence. A party might not know that there were two John Smiths or Richard Roes in the county. He leaves one of that name on because he has no objection to have his cause tried by him, and another man is summoned to whom he might reasonably have objected. The law is plain and positive ; the convenience of society dictated its enactments ; and where the objection ia taken in time, as it has been in The Queen v. Patterson, and Dickey v. Nugent, it must prevail, and therefore the rules in both these coses must be made absolute. But as this is a new question, and arises out of the omissions of the of- ficers whose duty it was to return the Jury lists, I think it should be without costs. Bliss, J. There is a clear distinction between taking the objection before, and taking it after a verdict. By staying the proceedings before n trial coii.es on, until an error is rectified, no injustice is done to either party. It i? otherwise after a trial, when one of the parties has obtain- ed an advantage. If we were^ to lay down a rule, that when a cause has been tried by an irregular Jury, the verdict is, of course, irregular, and must be set aside, we would empty the Penitentiary, as there is no time fixed when the objection should be taken, and we might bo called on to go back to an indefinite period. DoDD, J. concurred, and stated that DesBahri;?, J. who Imd left town on Circuit, also concurred in this decision. Rule for new trial discharged. THE QUEEN v. JOSHUA HEUSTIS. July 28. A Majristrntc is entitled to six day's notice of a inotiop for a criminal information against him, for a violution of his duty. The motion must be made in suiRuient time to enable the party accused to answer the same term. Johnston, Q. C. moves for a rule nisi calling upon Joshua HetistiSf Esquire, a Justice of the Peace for the county of Cumberland, to shew cause why a criminal information should not be filed against him on the ground of corrupt, illegal, and improper violation of his duty as one oi 102 THE QUKEN v. HEUSTIS. Mngistrnto!) appointed for the purpose of revising ami making up (' rutin Jury lists in that i-ounty. A cliarge of this nature touches, on tlie one liand, the cluiracter of the Magistrate, and on tlie otlier, tlie ad- ministration of justice. The law having given to suitors in the Courts the security of a supervising committee, appointed by the Magistracy from among themselves, for the fair and just selection of those persona who arc by law qualified to act as Jurors, it is of the utmost importance tliat such a tribunal should act with entire fairness and impartiality. Under the circumstances disclosed in the aiRdavits, it is impossible to believe that this Magistrate has so acted. The learned counsel then read the affidavits of a number of individu- nls residing ot Wallace, River Philip, West Cliester, and Pugwash, in the county of Cumberland, that they were qualitied by law to serve as jurors, and believed that they had been intentionally left ofl' the Jury list for the county, by the said Joshua Hemtisy from political motives, he being an active supporter of the government, and they conservatives. Also, an affidavit from R. B, Dickey, Esquire, that he felt liimself ag- grieved in not being able to try two libel suits against Messrs. Nugent nnd Annand at the last term of the Court, in consequence of the irregu- larities in the Jury lists. ' Also, an affidavit of Silas If. Morse, Esquire, stating that he had sug- gested to Mr. lievstis that, in revising the list, he should designate each Juror by his name, place of residence, and occupation, as required by the law, to which he replied t hat he was not paid for performing the duty, and therefore would not go to that trouble ; and also that he, the deponent, had not altered the lists while in his custody. Also, an affidavit ot Alexander McFarlane, Esquire, to the effect that he had, on Friday the 15th day of July, served the defendant with no- tice that this application would be made on the following Monday for the causes assigned in the rule. Bliss, J. There were five Magistrates on the committee. Why do you apply for an information against one only ? Johnston, Q. C. By reference to the list, it will appear that the dis- trict of AVallace, in which the parties omitted reside, is that for which the defendant made up the list, which list is subscribed with his name. The affidavits of James Stewart and others were also read, to shew that defendant was the Magistrate appointed to revise the Jury lists for that district. Ctir, adv. vult. On the 25th instant, Johnston, Q. C. applied to file two additional af- fidavits, and the Court then intimated that they had serious doubts, botli as to the sufficiency of the affidavits, upon the merits, — as they did not TUINITY TEllM, ISflS. lOS shew that jurors of one political party only were omitted, — and also an to the time of making the motion, and the want of sufficient notice. The Court now delivered judgment. H.VLLinuRTON, C. J. As Magistrates have many onerous duties to perform for the public, the hiw, although it will punish them for abusing tlieir power to the injury of an individual, requires that notice of any intention to proceed against them must be given to them before such pro- ceedings arc commenced. In the cose of The King v. Heming, Dtnman, C. J. said, " It is an established rule of practice, that no application for a criminal information can be made against a Magistrate for any thing done in the course of his office without previous notice", 5 B. and Adol. 6GG ; and in exparte Fenlimaii, 2 Ad. and £1, 127, the same learned Judge, Avith the concurrence of the whole Court, decided that six day» notice must be given. It was required by statute in coses of certiorari, and he thought it reasonable that the same rule should prevail in the case of notices for a criminal information. There is another shield thrown over Magistrate!*. The Court will not allow them to be harassed by having rules of this kind hanging over them. In 7V*c King v. Sutton, 7 T. R. 80, Lord Kenton, C. J. expressed a doubt whether it was not contrary to the practice of the Court to grant an information against a Magistrate so late in the term, that he could not shew cause during the term ; and whether the application should not be deferred until the next term. It was, however, granted in that case, because the supposed misconduct took place during the term ; but a similar motion was immediately refused where the supposed miscon- duct took place before the term. In The King v. Harries, et. al., 13 East. 270, it was held that a cri- minal information might be granted in the second term, where no assizes had intervened. But in The King v. Marshall, 13 East. 322, it waH refused where it was made so late in the second term that the Magis- trates would have no opportunity of shewing cause in that term against a rule nisi, if granted. Upon both these grounds, therefore, I think the rule nov/ applied for must be refused. Bliss, J. A distinction is taken in the books between motions for information against Magistrates, and against other parties. With respect to a Justice of the Peace the rule is very stringent, both as to the notice, and the time of making the application. He is entitled to answer the application for a rule nisi, and it must not be made so late in the term that he cannot answer it the same term, because the pendency of such a motion might affect his usefulness as a magistrate in the mean time. 7 T. R. 80 ; 13 East. 325 ; 4 B. and A. 867. In The King v. Jottie, 104 THE QUEEN V. HEU8T1S. I}} i I 10 Q. B. Kep. 484, it is said that the dcciHion in The King v. Harriet, m to the intervention of tlie assizes, was extrajudicial, but I do not think so. In tlie case of Rex v. Hartley, reported in tho note to The King v. Jollie, tlie same principle is recognized. Tho notice in this cuso was to answer the application within four days ntlter the service of tho notice. It is true that the motion was not actu- ally made until the six days had expired, but that is not suiflciont. Thu notice ought to have been served at'least six days before tho earliest pe- riod at which the application could be made. 4 B. and A. 8G5 ; 2 Ad. and El. 127. DoDD, J. TIlis application appears to be made by Mr, Dichey, on account of the disappointment ho experienced in not obtaining a trial of causes in which he was interested. If he has sustained any damage, he has his remedy by applying for an indictment. I would very much prefer a party making his application to the Grand Jury in cases like the present. I concur in tho opinion given by the other Judges. Bule refused. CASKS ! AKGUED AND DETERMINED IN THK SUPRfitfE COURt OF THR iMlOVIXCli: 01^ NOVA SCOTIA. JflCHAELMAS TERM, 183.1. tVOODWOftTH V. WITHROW. November IS. Johtuton, Q. C. moved for a rule nisi to set aside writ and declurft. tion in a suit in the nature of an ac ion for malicious prosecution, on the ground that it contained a number of formal allegations, similar to a de- claration under the old practice. mtchie, contra, admitted that the declaration was unnecessarily lon.r. The allegdtibns were evidently int^oducrid by the attorney from caution. There was no objection to alter the declaration if the Court considered it advisable, but as it was to the plaintiff's own disadvantage to expose his case, he suggested that it might be as well to leave it as originally drawn. Court. We think it would be better to amend, as if left as it is, it will lengthen the subsequent proceedings. It will be advisable to avoid these lengthy declarations as far as possible under the new act. The action for malicious prosecution is one which mig'jf easily be brought in a few words. Rule granted, and also rule to amend without costs. THE QUEEN v. HENDRY. November 15. Murdoch moved for .i precept to the Sheriff of the count/ of IlalifUx 11 ■'I ' 106 CHURCH-WARDENS v. DAVISON. to abate a nuisance. An indictment had been preferred against the de- fendant in a previous term, at the instance of the City of Halfax, for erecting a buihling on a public street, and a judgment obtained, requiring him to abate the nuisance. It now appeared by atHdavits that the nuisance had not been abated pursuant to the judgment. Rule nisi granted. The rule was subsequently made absolute. TRENHOLM v. TRENHOLM, et. al EXECUTORS. November 15. Smith, for defendants, applied for a rule to declare the plaintiff out of Court for not amending his declaration within twelve months, pursuant to rule obtained by him for that purpose. It appeared by the affidavits that the plaintiff had given notice of dis- continuance, but no rule had been filed, and when the defendants had attempted to tax their costs the plaintiff had objected. Court. We will give you a rule nisi for the defendant to shew cause why the suit should not be discontinued, and the defendants allowed to tax their costs. Rule nisi. . r!«j: CHURCH WARDENS, &c. AMHERST, v. DAVISON. Novembci' 15. McCulhf moved fbi" a rule nisi for the costs of the day for not pro- ceeding to trial, against the individual members of the corporation of St. Paul's Church in Amherst. It appeared by the "W'l.nvits that the costs had been taxed, and execution issued against the corporation, which had been returned not satisfied. That application had been made to the offi- cers of the corporation for payment of the amount, which they had re- fused, although they had funds in their hands. Cites Rev. Stat. c. 87, s. 13, p. 258. The individual members were liable at common law but this enactment, provided that they should not be liable beyond a speci- fied amount. The rule was drawn requiring them to shew cause why the execution should not issue against the individual members of the corporation, and also that proceedings be stayed. Halliburton, C. J. Take your rule for the execution only, or else in the alternative. You cannot have a cumulative remedy. Rule nisi. MICHAELMAS TERM, 1853. 107 BARNABY et. al v, GARDNER et. al. November 15 '■ J. W. Jolinston, Jun'r., moved for a relaxation of costs. It appeared that the objection was not taken before the Judge at the taxation of the bill. Court. If the objection was not brought to the notice of the Judge, your proper course is to apply to him at Chambers. Rule refused. STALKER et al .v, WIER d. al November 15, Tlie Court will grant a special Jury after an ineffectual trial, upon cause shewn, i lie Court will, under peculiar circumstances, order a special Jury cause to set down for a particular day, upon special grounds shewn. This was an action of trover uied in Inst Easter Term before u Petit Jury, wlw could not agree on a verdict. Ritchie, on behalf of plaintiffs, now moved for a special Jury, upon the ground that the cause was of much con.sequence, not only on account of the amount involved, and heavy costs incurred, but for the purpose of settling an important commercial principle. Johnston, Q. C. objects that tlie niiplication is too late, there hnving been a trial. Court. One of tlie grounds laid, and a very important one if tru.*, is that the former Jury did not do juslicfl. We will grant a rule «/*/. Rule nisi granted, which v.as afterwanls niude absolute without oi)|)o- sition. November 28. Joiinston, Q. C, for the dfiendants, on IGth instant, obtained leave to send back the commission issued on behalf of the defendants, and exe- cuted at Now York since the former trial, to amend the return endorsed thereon by having it signed by the commissioners, and also to obtain proof that the tlii, -i oommissioner, who did not tnke part in the commis- sion, had receiv<'d notice of the ex(>cution tliercot; pursuant to the rule upon which the commis.sion issued. A rule nisi was granted, which wa," subsequently made absolute, the plaintitl's counsel refusing to consent to waive the two objeclions. 108 MAYHKW V. PEN. Johnston, Q. C, for defundants, subsequently ubtiiined a rule tiis! t« set the cause down for trial on the second Friday in the Sittings, so as to enable the commission to be returned ; and further, that if the list of trials should have been gone through before that day, the Court would not adjourn over, but would wait until that day for the trial in this cause, in case the commission should arrive. This rule was opposed as furnishing an inconvenient precedent, Young f Q. C. and Ritchie ^ contra. After argument, in consideration that the trial of the cause on a for- mer occasion occupied four days, that both parties had expressed anxiety to have it tried during the present Sittinj^s, that a number of witnesses were in attendaiicc from Guysboro' and St. Mary's at a ^ cry heavy ex- pense, that it was a special Jury cause, ^md that the only obstacle to trying it at once arose from the merely formal objections to the commis- siwi which the plaintiffs' counsel would not consent to rectify, the Court modified the rule so as to prevent its being made a precedent, and granted it in the following form ; — *'Upon reading the affidavit of Charles Twining, filed on behalf of the defendants, it is ordered tnat the said cause be set ilown for trial on the second Friday of the Sittings, provided the commissiou be retui-ned from New York before that time, and if not, that the said cause be coutinueil until the ensuing Faster term, on payment, by the defendants, of the ex- penses of the jtlaintilf 's witnesses, between the day ^^•hcn the cause is called in ordinary course, and the day of trial under this rule ; and lurther, on payment by the defendivutji t)f the costs t»f the term, if the «'ause shall go over in eonseciuence of the commission not being returned tin the said second Friday. '^And it is ordere;! that, in case the trials of the term shall have been concluded be/ore the said second Friday, the Court will adjourn to that day for the trial of this cause, in conseuuejice of the great expense of procuring \\w attendance of the witnesses on both sides, and also in cou- sitleration that the trial is ordered by a special .lury, and of other cir- iumstances connected with the. cause, btil not as a course of practice ap- proved by tiie Court, nor one whifh sliall be drawn into prec»'deiit here al'ier". (;iiK(;oiiy mayiikw v. kichard fen. November 10. In foivilo««"o of mortaiitrc s in iliu ^uprrmu Court by (•jocittii'nt, tlio rjoc\mont \\ni\ l^iii.M'liwiite Hie liii net pi-,)ric.|iii^>. and tlic hitter iiuiv be sit u-idc lor invguliiriiv Viithout ilisiurb.ii^ il.t loimu-. 13 ittt ol" ton- ■ir- I'- •ro ■ MICHAELMAS TERM, 1803. « 10» ma II V The declaration in ejectment must be served upon the tcnnnt in possession, ond the order of forecluaure and vale upon all the j>ariius huvinj; equitable iuiereiitd in the premises. An assignment by the mortgagor of his equity of redemption, under the insolvent debtor's act, makes his assignee a trustee for him, sind leaves in liiui a remaining in- terest, in the nature of an equity of redemption, sufficient to entitle him tu be made a party to a furucloHuru of the mortgaged premises. The rule or order to sell, must bo annexed to the morigngc, or ely i's title in the proceedings, iu- iicad ul' ilii' Ivi's ised L;iw>. 1 10 MAYIIKW r. FFX. ' ■ ij .'Jrd. That no afRtlavits had been filed to the effect that there were no proceedings pending in Chancery as required by statute, which enacts that these proceedings for foreclosure in the Supreme Court can only be taken when there are no proceedings in Chancery. 4th. Tliat the original mortgage had not been filed in the Court. 5th. That the premises are not described in the order of sale, nor does it refer to the mortgage, so that they could be identified. The pi-ac- tice in Halifax has been to annex the mortgage to the order of sale. J. JR. Smith, contra. This is a combination of two distinct proceed- ings, the action of ejectment, and a foreclosure in Chancery. One of these may be regular, and the other irregular, and in order to set both aside, both must be shewn to be irregular. The rule asks to set aside the judgment. The action of ejectment and judgment therein precede the foreclosure, and the latter may b^ irregular and be set aside with- out impeaching the former. This rule asks too much, because it asks to set aside the judgment and all tljp proceedings. The action of eject- ment and judgment therein are clearly regular, as the declaration was served upon Woodill wliO was as much in possession as any person could be of vvild and uncultivated lands., There was no actual possession in any body, but the constructive possession was in Woodill. It is true that it does not appear that any afiidavit was filed shewing that there were no proceedings pending in Chancery, but the statute does not require any such affidavit, and if there were any such proceed- ings pending, it was open to the defendant to come and shew the fact ; not having done so, the Court will not presume that there were any such proceedings. It is contended that tl^e order of sale ought to have been served upon the mortgagor, but the act does not require it, and in a foreclosure in Chancery the mortgagor need not be called in. Bliss, J. Not if he has assigned all his interest, but an assignment under the insolvent debtor's act makes the assignee a trustee for the in- solvent, and leaves a remaining interest in him ; and in Chancery, all the parties who are interested, all who represent the whole equity of re- demption, must be called in as defendants. J. R. Smith. This party could not redeem except for Woodill. If he could, Woodill and Smith might have conflicting equities of redemp- tion. Only the party who has the equity of redemption can redeem. Halliburton, C. J. The ownership, to a large extent, remains in the mortgagor. In this case he has parted with so much of that re- maining interest as will suffice to pay Woodill's debt, but there is an in- terest still I'emaining in him which Woodill might foreclose and sell. MICHAELMAS TERM, 1853. Ill This interest ought to be the more tenderly taken care of, because the assignment to Woodill was compulsory. , ./. R. Smith admitted that the rule was apparently deficient in not con- taining a description, but contended that the description was unnecessary, as the rule was headed in the cause, and by reference to the papers in the cause the premises could be identified. Bliss, J. The suit is brought against a nominal defendant, and the plaintiff, under this rule, might have sold any property that ever was mortgaged to him. It would have been no better had the title of the suit been Mayheio v. Woodill. The forclosure cannot be sustained. The only question is as to the ejectment. The other Judges concurred. Hallibuuton, C. J. This affects the sale, but not the judgment in ejectment. It has been settled that the proceedings are distinct, and that although the judgment in ejectment or debt may be good, yet the Court may refuse to foreclose upon the (iquities. We will hear Mr. Young as to the irregularity of the action of ejectment. There is an im- portant variance between the affidavits in support of, and those agaiubt the rule, resjiecting the possession, as it appears that Smith had neither actual nor constiiictive possession. Young, Q. C. contended that the two proceedings could not be dis- joined as they were expressly brought, as appeared on their face, for the purpose of foreclosing, and for no other purpose. That there was in fact, no judgment entered in the action, except the order of sale. That it appeared clearly by the affidavits that Smith did not know of these proceedings, and he inferred that it was the intention of the Legislature that he should be served with the declaration in ejectment from the Rev. Stat. c. 117, 8. 2, which prescribes the method of effecting service of the declaration in ejectment upon the mortgagor when he is an absent or absconding debtor, by serving process on the party in possession. This enactment was passed to meet the case of an absent or absconding mortgagor, and if it were not necessary that he should be served why was it made ? The whole proceedings being brought to effect a fore- closure, the ejectment, which is merely a part of the proceedings, should be treated as a foreclosure, and as subject to the same rules. CouKT. A party may pursue his legal and ordinary remedy by eject- ment to recover possession of the mortgaged premises from the party who is in possession of them. Or he may pursue the ordinary remedy to recover the amount due by action of debt. The law says he may do something more than this — be may go on and foreclose. But if be does U2 miAILEN r. I^IIAILEN. fi'f '■ so he must bring in nil the necessary parties. We do not infer froni the provision made in the Revised Laws for the case of absconding debtons, that the Legislature intended to vary the remedy in other respects, as tlie chapter is similar in its general features to tlie old act. We do not t!i;nk thfit Smith was sufflciently brought in to effect a foreclosure, and entitle the plaintiff to an order of sale. Even if it appeared clearly that he knew of the foreclosure, it would not be sufflcient as he must be brought in regularly. But we think that the declaration in ejectment having been served on the party in possession, the judgment by default is regular, and the plaintiff may issue his habere facias upon it, and take possession of the premises. As neither party has succeeded in obtaining all he asked, the rule must be without costs on either side< Rule modified accordingly. LESSEE OF PHAILEN v. PHAILEN. December 1. A petit Jurr canoe on the docket ot causes for trial may be set down on a particu- lar day upon special grounds, and wherp the circumstances are peculiar. J. W. Johnston, Jun'r., for lessors df plaintiff, moved yesterday, be'ng the second day of sittings after term, and immediately before the calling of the cause, to set it down for trial on Monday next the 5th inst., out of its regular course, upon special groTmds shewn by affidaviti It appeared that one of the plaintiff's witnesses, residing at Windsor, was the only witness to prove a material document. That notice had been served requiring the defendant's attorney to enter into a rulei to admit this document in evidence under Rev. Stat. c. 135, s. 8, which ad- mission was refused. That plaintiff's attorney had thereupon issued a subpoena, and obtained the attendance of the witness from Windsor, and the cause was tried, but the Jury could not agree. That in Easter term the cause could not be tried for want of this witness, and the plain- tiffs had, in consequence, to pay the costs of the day. That eveiy means had been used this term to obtain the attendance of the witnfcss, who had been expected up to the 29th ult., when, in answer to a telegraphic despatch, he returned an answer by telegraph that he was not well enough to leave home on that day. The affidavit disclosed merits, that the defendant had no legal or equitable defence, that the plaintiffs wero in indig'- circumstances, and that they were in hopes to obtain the at- tendant- ! the witness if a few days delay were granted. Young, Q. C. contra, opposed the motion, because the service of the Bubpoena was not Teriiied, and there was no evidence of the illness of the witness except a telegraphic despatch. He would not oppose a con- MICHAALMAS TERM, 1853. 113 tinuance, but the granting of the privilege asked would furnish an in- convenient precedent. IIaliburton, J. I have consulted two of my brethren since this motion was made, and they agree with me in thinking that this is a case in which the cause should be set down for a subsequent day, as the circumstances arc peculiar, and injustice would otherwise be done. As for its being made a precedent, every application of the kind must dc- pend on its own merits. Rule granted. LESSEE OF DILL v. CHARLES J. WILKINS. November 17. TItc admission of a husband, as to the boundaries of land held by him in right of his wife, are not binding npon the wife after his decease. DesBarkkr, J. dissentiente. Any admission of boundary to be binding must be made with a full knowledge of the facts, and this knowledge is a question for the Jury. When the Judge has misdirected the Jury upon a point of law, and such misdirec- lion may have misled the Jury, the verdict will be set aside, and a new trial granted. This was an action of ejectment tried before His Honor J'jdge DesBarres at "Windsor in last May term. Verdict for the defendant. In Trinity term, Johnston, Q. C' applied to make absolute a rule nisi granted at the trial to set aside the verdict, and grant a new trial upon several grounds. WiUiins, Q. C. contra. The facts in proof, which were disclosed in a voluminous mass of evi- dence, are very succinctly stated in the charge of the learned Judge to the Jury, which was as follows ; — " I told the Jury that this action was brought to recover a narrow strip of land containing about 2 acres, to which the lessor claimed title, under the will of her father the late James Christie, who, it appeared, Iiad de- vised 135 acres of land to his daughters Isabella Jenkins, Jane, who mar- ried James Simpson, and Ann, the lessor of the plaintiff, who married Joseph Dill, now deceased. That the land so devised was by deed of partition divided and set off between the lessor and her co-devisces into lots, represented by a plan annexed to the deed, giving the shape, num- bers, and quantity of land In eacli lot, but no courses or bounds. That according to the plan, the siue lines of tlie lessoi''s lots, whii'h adjoined the lot laid out to her sidter Jane, now in possession of defendant, were parallel lines making it of equal breadth from front to rear. Tlie lessor claimed to hold the northern side of the lot, adjoining the defendants by a line running parallel with her southern side line whioh was undisputed. 1.", 114 DILL V. WILKINS. ^ The deiendant claimetl by a line diverging to the southward from the purnllel line at the distance of about 3 or 4 rods from the starting point, on which tiiere was a fence, wnieh he contended had been established and maintained as the line dividing the two lots. It had been proved on the part of the plaintiff, by James Christie, the brother of the lessor, that a parallel line, corresponding with the plan of partition, was run by ii surveyor, at the instance of J}ill and Simpson, in 1824, that it was again traced and staked out by them in 1831, as the dividing line of their respective lots, and that a fence was then erected on that lino which re- mained until 1834 or 1835, when it was removed to the southward, in the rear, and afterwards extended towards the front, including the strip of land in dispute. But whctlior a fence was at first actually erected on that line, or on the line to which the defendant claimed, appeared to be a doubtful point from the conflicting nature of the testimony, which they were attentively to consider and decide upon. Assuming, as I thought they ought, under the evidence, tliat the line surveyed in 1 824, and traced and staked out by Dill and Simpson in 1831 was, accord- ing to the deed of partition and plan the true dividing line between the lessor's and the defendant's lots, and that the strip of land in dispute was, in fact, part of the lessor's lot, the question was whether Dill and Simpson, being then the owners of these two adjoining lots in right of tlieir wives, had at a subsequent period mutually agreed to alter that line, and to fix and establish another where the fence now stood, as the dividing line of the two lots. If they had so done, — and I told the Jury that if the acts and conduct of the parties necessarily led to that conclu- sion, they might presume the line to have been so changed and estab- lished, — or if the lessor herself, since the death of her husband, had re- cognized and maintained the present fence as the boundary line of the two lots, that in either case I thought she was estopped from now dis- puting the line, and their verdict ought to be for the defendant. If, on the other hand, they thought that the fence was at first erected on the pni'allel line so surveyed, and that it was afterwards removed, as testified to by plaintiflf's witnesses, to where it now stood, and had never been es- tablished and recognized by Dill and Simps''n during their occupation, or by the lessor since her husband's death, and the defendant, as the true fence between tlie two lots, they would find for the plaintiff". After full argument, the Court took time to consider until the present term, and now delivered judgment seriatim. Halliburton, C. J. I think that there must be a new trial in this case, on the ground of misdirection. Assuming that the lessor ha*' a legal title to the land in dispute, and I think the proof was clear enough upon that point, her husband could not divest her of that title by a plain positive deed, much less by merely assentbg to a division fence altering MTCIIAELMAS TERM. leSll. ii:> the line by which tshe was entitled to hold, nor should her permitting that line to stand for a few years after her hutiband's death, be construed into an assent on her part that it was the true line of division. Tliis Court has certainly held, th»t wlicre two adjoining proprietors meet for the purpose of deciding the boundary line between them, and in good faith, without deception on cither side, do establish a line be- tween them, that neither those proprietors nor those who claim under them, shall be permitted to dispute that line. But both the parties to Huch transaction must be the real owners of the land, they cannot bind those who do not claim under them, and therefore neither Dill nor Simpson could bind their respective wives in wliom the title was vested. The mere existence of a fence, not originally erected by parties authori- zed to establish a boundary between them, will not bind the real owner unless it is allowed to remain as such boundary for 20 years, during ten of which the owner has been freed from the disabilities of infancy coverture, &c. The true question in this case is, has there been an adverse posses- sion of 20 years in the defendant or those under whom he claims ? This, the learned Judge told tlie Jury, appeared to be a doubtful point, from the conflicting nature of the testimony. And it is doubtful, both as it respects the duration and the nature of the possession. If it commenced, as the plaintiff's witnesses state, as an accommodation granted by Dill to Simpson to enable him to pass out to the back part of Ids lot, then, so long as it was held in that way, it was not adverse to the title of the lessor. That it is now held adversely there can be no doubt, and had the atten- tion of the Jury been confined to this point, and had they found that it had been so held for twenty years before action brought, then 1 should think, under the authority of the lessee of George v. Jesson, G East. 80, that the lessor was barred, as she liad not brought her action in time. Iler husband died in 1840, and tiiu declaration in ejectment was not served until September, 1852. But the attention of the Jury was not so confined, and they may have come to no determination upon this confiictiiig evidence, but may have, and probably did, find their verdict upon the other ground, on wliich 1 think it cannot be sustained. In the lessee of George v. Jesson, the person last seized, under whom plaintiff claimed, died in 1777, when an adverse possession wuji taken by his brother, the grandfather of the defendant. Tlie person la>t seiz- ed, 2'homas Jesson, left a son and a daughter, both under age. The son was deemed to be dead in the year 178o, when he was still an infant, and only 8 or 9 years of adverse possession luul run against the h^gal owner. The daughter, who was younger than her brother, on his death itc DILL r. WILKIXS. becaniR entitled to the estate. Lord EUenborough held that she wiH Ijound to bring her action in ten years after her brother's decease. At the expiration of those ten years, twenty years adverse possession would not have been gained by the defendant, and a hasty view of his decision would lead to an opinion that less than twenty years adverse possession would thus deprive her of her right ; but a little considera- tion will satisfy us that it is not so. A plaintiff in ejectment, who has proved a legal title, is not required to prove that his lessor is protected by infancy, coverture, or any other disability, until a title by adverse possession under the statute has been established against him. In the case of lessee of Oeorge v. Jesson, the adverse possession commenced in 1777, the action of ejectment was not brought until 1804, when up- wards of twenty years had elapsed, and consequently a title under the statute was established, and rendered it necessary for the lessor to brinsf herself under the protection afforded by the statute to those labouring under certain disabilities, what his Lordship thought she could not do under the circumstance of the case, after the expiration of the ten years. See also Angell on Limitations, ch. 30, s. 6. Mr, WUkins has turned our attention to the case of Duhe ofNewcat- tle V. The Hundred of Brixtowe, 1 Nev. and ]Man. 009, in which Parke, J. said, " It is only in those cases of misdirection in which we are satisfied that the Jury has been led to a wrong conclusion, that the Court ought to in- terfere" ; but this observation alluded to what the Judge had said relative to i\\Q facts in proof, and his ascribing too great weight to some and too little to others. He had previously mentioned that the objection to the charge was not that the Judge had misconstrued them in point of law. Whenever that is the case, and the Jury may have been misled by it, I think the verdict should be set aside. t ■; Bliss, J. I think the direction of the learned Judge to the Jury in this case cannot be supi)orted. Tiie land is clainKul by the lcP8(»r, Mrs. Dill, in her own right, under llie will of lier fatlier, James (^hristie, dated 1815. She was married in 1822, and her husband died in 1840. Now any act of acquiescence in a wrong line by her husband, during coverture, prejudicial to the right of his wife, cannot bar the wife after the termination of the coverture. A conveyance of tlie land by the husband would have no such effect ; much less then, would any act of his, short of this, have the effect of depriving her of her land. But, again, I tliink that what was said witli respect to Mrs. DilVs own acquiescence in the line by maintaining tlie fence, being an estoppel to her now disputing tliis line, was too strongly and too broadly laid down in this case. Whatever nniy be the effect «f a recognition by the owners of an ad- MICHAELMAS TERM, 185n. Ul aJ- joining lot, of a boimdary line, by maintaining a fence thereon ; — and no case in this Court, I believe, has yet been decided on just th»t point ; — yet I apprehend that such, like any other admission, must be perfectly free from doubt and ambiguity, and must also be made with a full know- ledge of the facts. If made under error and mistake, the party making the admission is not bound thereby, but may show that it was so made, unless, indeed, the admission has induced another to alter his position, and has thus affected his rights, in which latter case it will have the ef- fect of an estoppel. Hearn v. Rogers, B. and C. 586 ; Richard v. Sears, G A. and E. 473. Now in this case the lessor had been married, and under coverture for 18 years, and up to 1840, when, by her husband's death, the pro- perty reverted to her own possession and control. She found a boundary fence between her and the defendant existing, and of some years previous continuance. Iler continuing to maintain that fence under such circum- stances, is not exactly the same, nor by any means so strong and un- equivocal an admission on her part, as would be the putting up and main- taining by herself, in the first instance, such a division line. Of the period which has clasped since the coverture ceased in 1840, for several years, if not for most of the time, the land has been held by a tenant, by whom, during that time, the fence was kept up, so that in fact there has been, on the part of Mrs. Dill herself, no long acquiescence in the con- tinuance of this boundary fence, for she expressed her dissent to it in 1851, the year before the action was brought. But there is a circumstance of still greater importance. It is in evi- dence that the strip of land now in dispute which this fence inclosed, was occupied by Simpson, the former owner of defendant's land, by the leave and permission of Mr. Dill, for the express convenience of Simpson. If that were so, the fence was not kept as a boundary line, but under this particular arrangement. Now if Mrs. Dill, after the property came into her own hands, finding the fence had been long kept up where it stood, had from that circumstance supposed it was the right line, and was igno- rant of the special agreement between her husband and Simpson, — her continuing to keep up the fence, though she did it as a boundary fence, ought not to have, and would not have, the effect of precluding her from asserting the true line, beaause it would have been done under an en- tire ignorance of her right, and of the facts of the case, and proceeding from mistake, it would not be conclusive against her. No right of the defendant had been affected, nor had his situation or condition in any way been altered by this conduct on the part of Mrs. Dill. H« had be- come the owner of the adjoining land in 1838, two years before the death of Dill, and tliough the maintaining of the fence by him might perhaps have huUiccd tlie defendant to believe that he was purchasing up to that line, the subsequent acts of the wife had no such material 118 DILL i.'. WILKIN9. ron^oquouce ns could n-nder lior acls iin ostcppel, n^ninst licr othcrwiso l('){al and just cliiiin. TIighc facts hIioiiM liiivc ((ualificd, 1 think, and Ihat very nin't'iially, tli« observations of the learned tFud^c to the Jury, to whom it sliould then have been left to say whether the acfjuiescenco of Mrs. Dill was with a full knowledge of the case, and so amounted to a clear unequivocal admission that the fence was her boundary, or whether it was made under a mistak<> ; in which case, I think, shn would be still at liberty to shew, under these cinnunstances, that it was not the true and proper line. I am of opinion, therefore, that the rule for a new trial must be made absolute. ; , ILvLinuuTON, J. wag not present at the argunient. DoDD, J. I do not see how we can avoid sending this cause again to a Jury. In the first place, one of the points taken at the argument, by the counsel for the defendant, in favor of retaining the verdict, was that an adverse possession had been established by the evidence on the trial, so as to bar the plaintiif's right to recover. Admitting such to bo the case, which I am very far from cdnceding, still it is a (juestion for the Jury, and as it was not t,dbmiit'^d to them by the learned Judge who tried the rcss assent, at one and the sanio time, to the existing fence as a boun* dary, it appeared to me thut ihe present case came withi\i the principle. Henry Gordon, a witness for defendant, proved that th> fence in the rear, by which the defendant claims, was erected and has been standing 23 or 24 years in the same position, that the line generally was always recognized as the line of division between the two lots, and that Dill always kept up that part of the fence next to the road, and Simpson kept up the other part running along the line towards Mulcahi/. Seve- ral other witnesses speak of the fence being there from 16 to 18 years, and that it was never removed. Another witness stated that he had known the fence for 19 years, and that it was an old fence at that time. It was also proved that the lessor, after her husband's leath, upheld the same part of the fence that her husband did, and that the defendant maintained what was before Simpson's part, through v^hom he claims. It appeared to me that but one conclusion could LiC drawn from these acts, and I left it to the Jury to presume an acquiescence in the boun- dary, if they believed the witnesses, and thought lit ; and they did so. I regarded these acts as tantamount to expre? s admissions of the boundary as I still think they .verc. In Hearne v. F.ogers, 9 B. and C. 577, Bay- ley, J. isays, " There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence against him ; but we think that he is at liberty to prove that such admissions were raistaken, or were untrue, and is not estopped or concluded by them unless another person has been induced by them to alter his condition ; in such cases, the party is estopped from disputing their truth with respect to that person, (at.l those claiming under him), and that transaction". According to my view, the svdmis- sions o( Dill, the husband relating to this boundary, w!iether express or implied from his acts, are evidence against his wife, the present lessor, and if such admissions were iiiade hy Dill ihe luiHband, or the lessor since his death, under this authority the plaintiff could not shew that these admissions were mistaken and untrue, bccausp Js is manifest that Simpson in his lifetime, as well as the defendan* since liis death, were induced to alter their condition, the formei- ijy making the fenco, and the sale of the land by that fence, and the latter by cultivating and im- proving it up to, and along nearly the whole extent, of that line. In a late case o( Pickard v. Sears, G Ad. and El. 409, Lord Denman, C. .1. says, " The rule of lav/ is clear, that where on<> by liis words or conduct wilfully causes another to believe the existence o-f a certain state ot things, and induces him to act m this belief so ns to alter his own pre- vious position, the former is precluded from averring again»t the latter 16 i"i 122 DILL V. wi'::::i^;s. 5"*- ■' 14 1. a different state of things as existing at the same time". Joseph Dill, the husband, died in 1840. Tiie lessor then took possession of her lot, and she, for a part of the time, and her tenant for the rest of the time since, and as we may fairly presume with her knowledge, continued to repair and maintain the same part of the existing fenc°. which her hus- band had always maintained, until 1851, when the lessor fov the iirst time disputed the fence. On one occasion she employed a person to measure the fence, in order to ascertain whether she was not making more than her share of it. Was this not enough to cause the defendant to believe that slie acquiesced in tlie fence, and acting in thai belief to induce him to expend labor upon and make the land along the fence more productive and valuable ? It strikes me that it was, and if any in- ference is to be drawn from tlie question put by the Jury, and tlieir al- most immediate finding after it was answered, they were governed by evidence of the avXa and conduct of the lessor herself in the verdict they tbund. And as to the point which it is objected was not put to the Jury, that there was a permissive occupation by Simpson of a part of the land, it is clear from the testimony cS Jnmes Christie that the permissive oc- cupation referred to a small piece of land in the rear, and I think it is equally clear that it is not included, and forms no part of the land with- in the fence by which the defendant claims. There was then no wrong done to tlie plaintiff by omitting to put this point to the Jary, which though it Avas not, must, I supjwse, be presumed to have been omitted, as it is not mentioned in the report. But admitting that the existing fence does actually enclose the small piece of land which it is said Dill permitted Simpson to occupy, that would not, it appears to me, alter the case for the question after all, is not whether any of the land to the northward of the fence belongs to the lessor's lot, the question is whether the lessor is not precluded from now claiming it, by having acquiesced in a fence as a boundary varying from the line described in the deed of partition and pJan, — if, indeed, the vague and indefinite manner in which it is done ir Uoih, can be called a description. The case of Burrell v. Burrell, 11 Mass. Kep. 29 G, I think, sustains this view. That was an action of trespass between the owners of adjoining lots, in which it ap- peared that the defendant had erected and maintained a fence between them, on a line varying from the line described in their title deeds, and one of the questions was whether the claims of the proprietors on either side was limited to that fence. Parker, C. J., in delivering the opinion of the Court, says, " Where parties have established a fence varying from the line described in the deeds, and each party has held and occu- pied up to his side of the fence, claiming to .hold accordingly for twenty years, neither can maintain a possessory action against the other. And indeed such act of ownership ai.d acquiescence might be sufficient evi- dencd of title in actions of a higher nature, especially if any doubt should MICHAELMAS TERM, 1853. Ui exist ns to thr plan and course of the line described in the deed. But wliei*e parties have agreed upon a fence variant from the line, avowedly for convenience, and still have continued to claim according to the true line, neither party acquires a title, or even k-ight of possession, against the other, merely on account of the fence. It was therefore a question of fact properly submitted to the Jury, whether, under the circumstances of these parties, and the prior oioners of the land, by whose acts the present owners are bound, the fence was to be considered as limiting the claims of the proprietors on either side, contrary to the boundary established hy their supposed titles ,• and we have no doubt the Jury have decided rightly upon the question". Se in this case I think it was a question properly .submitted to the Jury, whether, under the circumstances of the parties, and the prior owners of the land, by whose acts the present owners are bound, the fcMce was to be considered as limiting the claims of the pro- l>rietor, on ; 'k r side, contrary to the boundary made in 1824, which was asfi' ' Aoil Jo . : made according to their titles. The Jury have de- cided that question, and as it appears to me there is sufficient evidence to Bustain that verdict. I am of opinion that tJiP rule ought to be discharged, but as I happen unfortunately to differ with my brethren, the rule must of coiwrse be made absolute. Rule absolute. ESTATE OP ALEXANDER JVIcDONALD. November 19. PcMonal propBrty Revised to exet-utors for a purpose which fails, must be distri- buted by the Executors, aniifn-z thu next of V.m. Such di^: *i de<'ision perty. By the second clause, he devised a lot of land, containing one i.undred acres, to his wif« Janet, in fee simple, " being in full, (with such other articles of property as shall bo hereinafter i < ntioned) as her dover or claim as my wife", and also certain spefi'led :r clcs of per.sonal property, and ten poundii in money. The ivAWih ri ^ c was us follows ; — "Whatever may i tin ot my personal property after the above bequests are to be disposed of by my o^iccutors, as I shall hereafter in- ^tnipf them to d«v for the doing of which tliey nro hrreby fully authorized. 124 ESTATE OF McDONALD. ii*- I ifii' The Testator having died without having (90 far as appeared by the documents returned from the Court of Probate), given any instructions to his executors in what manner this surplus personal property was to be disposed of, and without alienating or devising the same, it was con- tended for on the part of the widow that the deceased, as to this per' Bonal property, died intestate, and that by the operation of our Pro- vincial Statute of distributions, she, as his widow, was entitled to one third. THis claim the Judge of Probate refused, with costs against the appli- cant, upon the ground that having accepted the devise of the Real Es- tate, she had by that election precluded herself from claiming any por- tion of this undevised residue. In his written opinion, the learned Judge of Probate relied on the following authorities ; — i, 7 -■-. -T in'r., 576 ; Am- bler, 466, 682, and 730 ; 2 Story's Eq. Juris, p 1088 , 2 Atk. C29 ; 1 Ch. Eq. Dig. 340 ; Williams Ex. 1264. C. Twining, for the widow, in Trinity Term moved to make absolute a rule to reveioc this decision of the Probate Court, and cited 1 P. L. p. 13. " That all such estate, real or personal, as is not comprised in any Last will and testaments, cr is notiplainly devised or given by the same, shall be distributed in the same manner as Intestate Estates are di- rected to be distributed by this act". Re-enacted in the same words by Probate Act 1S42, sec. 32. Revised Laws, ch. llo, s. 19. "All such Estate, real or personal, as is not devised in a will, shall be distributed as if the Testator had died intestate". The learned counsel contended that the widow, having "expressly denied that she accepted the provision made for her in the wih, in full of all claim against the Estate, was now entitled to claim her legal rights under the will, and that the Testator, having failed to instruct his execU' lors as to the disj)osition of the personalty mentioned in the fourth clause of tlie will, it came within the language of the Revised Laws as\ undevised property, and tliat the Avidow wa^ entitled to one third under the Revised Laws, ch. Hi), s. 9. In this case the claim is resisted not by the executors, but by the heirs. In Johnston v. Johnston, 4 Beav. R., 318, i\\v I'estiitor stated tliut he utterly excluded his wife and one daughter fj'oui any shai-e of his jn-operty, and died without making any disposition of his Estate, and it was held that notwithstanding the ex- press statement of the Testator, the wide ' and daughter were entitled to their share. 2 Williams on Ex. 2062, and cases cited; 3 Ves. Jun'r., 332 and 193 ; 6 Symons, 19 ; 2 Rop. 11. and W. 23. Young. Q. C. oppoicd the rule. Theie is no such clause in the Enghsh statute of dis^tribution, nor in the Revised Laws uf New York MICHAELMAS TERM, 1853. Ui or Massachusetts. It is said there is no devise in this case, and sucli was the opinion of tlie Judge of Probate, but I contend that tliere is a devise. The mere appointment of executors is equivalent to a devise of the whole of Testator's personal property. The executor takes, by virtue of his office, all the personalty tluit is undisposed of by the w^ll, the same as the heir takes the undevised realty. This clause of the statute refers to the case where the legatee dies before the Testator, — where the Testator intended to devise, but his intention has been defeated. Here we must suppose the Testator intended to devise to his executors in fact as he has done in form, and therefore his intention has not been defeated. If Testator lias left no instructions, it do'^ .lot follow that there is no devise. There could not be a contingent devise in this sense. Cites 2 Rob. 195, 205 ; 1 Rob. 569 ; 2 Ves. Sen. 90, to shew that pro- perty undevised goes to executors. 2 Burr. 770, 771. The Avhole will must be taken together. It is a misapprehension as to there being no instructions. There is no such evidence. On the other hand, I infer that there are instructions. Such instructions need not be executed with the formality required in a will. Any directions which would touch the conscience of the execu- tors would be sufficient. It appears by Revised Laws, ch. 114, s. 4, 6, 18, 19, 20, that our Legislature have used the words "dispose", as equivalent to the word " devise". The language oi I'le devise is, there- fore, sufficient. Preston on Legacies, 123 ; 2 Ves. Jun. 79 ; 1 Vern. 423. I consider, then, that this is a complete and formal devise to the ex- ecutors as trustees. Is, then, a Court of Probate in this country competent to deal with trusts ? It is true there is a right of appeal, but the Court can only make such an order on this appeal as the Probate Court could have made originally. There is no language in the act to give Probate Courts such power. Some of the Judges, as is abundantly testified by the able report of the Judge in this case, have the learning and ability to decide in matters of intricacy, but such is not, and in a young coun- try like this, cannot be the case with all. They have already been clothed with power far exceeding what was originally contemplated, but the Legislature has not gone so far as to give them power over trusts. Bliss, J. Does this will give more power to the executors than be- longs to them in England where property is undevised ? Young, Q. C. In England an undevised surplus goes to the executor for his own use, unless words are used in the will to shew that testator intended only to give him ih^ "ffieo of executor, in which case it goes to the next of kin. 4 ' ''! U'> V2G ESTATE OF McDOXALD. Ham.iruryox, C. J. Why to tWu next of kin? Is it not in refer* cncc to the stntute of distributions ? Toung, Q. C. Yes, but here is a devise to the executors, and this dc* vise is upon a tnist, which I contend can only be considered in a Court of Equity. All the authorities shew that the power of appropriating un- devised property has always been exercised by the Courts of Equity, as they alone can compel the fulfilinent af a trust. Lewin on Trustees, 35, n. 6 ; Willis on Trustees, 69 ; Mad. Ch. Prac. 1, 598; 2, 98. Secondly. Is not the widow excluded, by the terms of the will, from participation in this residue ? It has reference l)oth to testator's real and personal property. It is in full not only of " her dower" in his real estate, but of " her claim as my wife", the words having reference to her claim as his widow on the personal estate. Testator's intention is clearly to give her as much as he specified, and no more, and she has made her election to take the real and personal estate in full not only of her dower, but of her claim on the personal property. 2 H. Black, 450; 16 East. 221; Burr. 1106, 14; 2 Ves. Jun. 575; Ambler, 460, 682, 730 ; 1 Mass. Rep. 146. The doctrine of election by the widow has given rise to numerous decisions closely treading on each other, and nice questions ar«? continually occurring, which are unfit to be determined by our Probate Courts. In one of these, (Pickering v. iStamford, 2 Ves. Jun. 272, :«l,and 3 Ves. Jun. 331,) the Vice Chancellor first de- cided against the widow, and afterwards reversed his own decision, on the ground that in that case there was no intention to exclude the widow. We here rely on the ground that the testator has manifested an inten- tion to make such exclusion, and also upon the impossibility of the Le- gisJ: *'i !> having intended to do that which it has obviously not done in express terms, viz : subject the whole law of trusis to the jurisdiction of our Probate Courts. The rule ought to be discharged with costs, in accordance with the rule in equity, to which these Courts are analagous in their practice, 2 Smith's Ch. Prac. 34. Johnston, Q. C. in reply. Here the testator speaks with reference to the other parts of his will. It must all be taken together. He says in effect, " I intend to give only so much to A, and so much to B, because I am going to give the rest to some other person. If he had meant it for the next of kin, he would have given it to them directly. He ha-s excluded them as much as he has the widow. His intention in not giving instructions to the executors may have been to allow it to go to his next of kin under the law, and to allow the widow to take her share. The doctrine of election only applies where there would, without such elec- JIICHAELMAS TERM, 1853. 127 tion, be an inconsistency. Here there is no inconsistency with the rest of the will in allowing the widow her share of this residue. The argument as to the jurisdiction of the Probate Court is contra* dictory. The English rule is said to prevail here so as to give the residue to the executors, but yet not so as to give it to them beneficially. But if our statute does not take it away from the executor, the law of England prevails, and he takes the surplus to his own use, except in particular cases where the Court of Chancery in England restrains the rule. We must go the whole length in one way or the other, and either allow that the executor takes a beneticial interest, or conclude that the statute takes away that right. I wish to refer to the language of the statutes previous to the Re- vised Laws, u; J I wish the Court to give tlie same efficacy to the clause in the revised statutes, which is more shortly expressed, as to the pre- vious acts, because the object cf the Revised Laws, in genei-al, is not to alter, but to abbreviate. Bliss, J. We must always do so when we can, but when we cannot reconcile the former acts with the Revised Statutes, we must consider that the Legislature intended to alter the law. Johnston, Q. C. The language of the previous statutes is very pointed, and shews an obvious intention to legislate for the whole estate. If this is held to be the intention of the law, no inconvenience can follow, for no other authority is vested in the executors or in the Probate Court than that which they are every day exercising in the settlement of estates. It is admitted that a lapsed legacy would fall into the residue to be dis- tributed by the executors to tlie next of kin, and it is difficult to con- ceive a reason why they should not exercise the same power in this in- stance, or where personal property is left to the widow in lieu of dower, and she elect the dower. It is said that in the latter of these cases, the goods go to the executors in trust, but not in the former ; but the power claimed for the execut"''s, and the Probate Courts in the latter case, is only that which is admitted to exist in the former. There is as much a trust in the one case as the other, and there is no more reason why we should be driven into Chancery to fulfil one than the other. Besides the language of our law, especially the old statutes, is very comprehen- sive and forcible, and does not leave room for such a distinction. The language used is not only " all such estate, real and personal, as is not comprised" in the will, but also all that " is not plainly devised or given by the same". The property now in dispute comes strictly under these words. It is not so " comprised" as to be distributed, and it is not, in fact, " plainly devised or given". The testator shews an intention to devise it by a 13i ESTATE OF McDONALD. '1;' :''■' Iji,;'' I ifllii; P J,.: I'd i If ^' 'ill subsequent act, but ho has not done so. Tlie bequest is ineffectual. The exclusive jurisdiction of Chancery in England arises from the pe- culiar and anomalous state of the law, which gives undevised property to the executor beneficially. Our statute, by providing for the distribu- tion of all undevised property, obviates this difficulty, and therefore there is no reason for such exclusive jurisdiction in this conntry. It would bo a monstrous inconvenience if the settlement of this little pro- perty wore taken from the Probate Court, which constantly exercises the power of distributing property in the very same way. Cites Toller Ex. 351 ; 2 AVilliams Ex. 1048, 53 ; 2 P. W. Rep. 158 ; 4 RusseU, 87 ; 1 P. W. Rep. 550 ; 2 Sch. and Lef. 452. Cur. adv. vuH. Upon this argument, the Court now gave their opinion. Hallibukton, C. J. The rule to reverse the decision of the Judge of Pi'obate in this case is opposed upon two grounds ; First, That the executors are entitled to the residue under the will, and therefore there is no intestacy. Second, If tb ■> executors are not entitled to it benejtcially, the next of kin alone are entitled, as the widow is expressly excluded by the terms of the will. Under the old decisions, the executors certainly took all the personal property that was not otherwise disposed of in the will. As the Master of the Rolls (Sir John Strange) said in Wilson v. 2'oat, 2 Vesey, 166. " In point of law, the bare making of an executor, vests in him what- ever is not otherwise given away", and vested it in him, too, for his own benefit. But this doctrine has been long modified, and the leaning of the Courts now is against the executor's taking property undisposed of by the w^ill, for his own benefit, but he is held to be a trustee for the next of kin, as the cases generally express it ; the fair interpretation of which expression is, for those who arc entitled to it under the statute of distributions. In The Bishop of Cloyne v. Toung, 2 Vesey 91, the testator, G. Berke- ly, after disposing of a portion of his estate, excluded his w-ie thus, " Item after all my just debts and legacies paid, I give and bequeath the remainder of my estate, real and personal, and whatever shall be due to me for half pay, &c.", without saying more. He had previously appointed executors. The next of kin (the plaintiff) brought his bill to recover whatever would have passed under the last clause, had any devisee or legatee been named. The case was tried before Lord Hardwicke, 100 years ago (1750), when the leaning 'i favor of executors was stronger than it has since been, and his Lo: .ship decided most of the objections to their taking in favor of the executors, but be held that this incomplete clause manifest- MICHAELMAS TEUM, 1858. m ed an intention to dispose of this part of liis estate, to some persons whom he had in his mind at the time he commenced writing it, and therefore did not intend it for his executors as sucli, and as he had not named the persons, he had died intestate as to that part, and that the plaintiff, as next of kin, was entitled. His Lordship said, " The presumption, from tliat clause is truly inferred, that he did not intend by naming executorii to give them the beneficial interest in the personal estate, because he intended, at that time, to give it in another manner, and therefore in- tended to give them nothing but the office". He subsequently says, " But it is said this being an imperfect clause does not operate, and nothing is to be inferred from thence, and therefore the testator might mean to give it to the executors. Admitting, he says, he intended to give it to the executors, it follows he did not intend they should take it an executors, but by express words". Ho added, " an executor must take by the will, and therefore if, at the mt;king of the will, the intent appeal's that he should not take the beneficial ii;tei'est in the surplus, no accident afterwards can give it him". And again " this residuary clause shews an intent to dispose of it in some other manner, though imperfect, so that it cannot go to the executor, as that would be contrary to the intent". In Lord North v. Purdon, 2 Vesey 494, Theophila Moor devised all her worldly substance to Mary Lovemore, describing her as a poor girl, whom she had brought up and educated, to be paid to her at twenty one or marriage, which should first happen, provided she marries with the consent of , or in case she dies before attaining the age of twenty-one or marriage, as aforesaid, then all her worldly sub- stance to then makes the defendants executors, heartily requesting them to be so kind as to take on them the execution of the will. Mary Lovemore, dying under age, and unmarried, there were three claimants for the property ; 1. The plaintiffs who were next of kin ; 2. The father of Mary Lovemore ; 3. The executors. The Master of the Rolls, Sir John Strange, decided, 1. Tlie admin- istrator of Mary is not entitled, as his right depends on tliis legacy's be- ing vested in her, which was not so, for if she died before twenty-one or marriage it was to go over, though at the making of the will, the testa- trix was not resolved to whom, but plainly never intended Mary should take, unless one of the contingencies happened. Next as to the executors. There are several cases where they ai'e considered but hs trustees for the next of kin. 1 st. Where a legacy is given for care and trouble ; afterward, although these words are omitted from the presumption by giving part. This Court has gone further, and if a necessary implication or violent presumption appears, that they were not to take anything to their own use, though no legacy was given 17 tso ESTATE OF Mc DONALD. 11^; to them, yet they will be only trustees, as was solemnly decided by the Lord Chancellor in the Bishop of Cloyne v. Young, 2 Vesey 91. The Master of the Rolls, therefore, decided that the property was un- disposed of by the will, and therefore went to the next of kin, and adds, though part be given to the next of kin, yet that shall not hinder them from taking the rest, if the intent appears that the executors were not to take the surplus. In Nourse v. Finch, 1 Vesey, Jr., 343, in which parol evidence was received on both sides, Mr. Justice BuUer, (sitting for the Chancellor), in deciding in favor of the next of kin, and against the executrix, lays great stress upon the testator's expressions, '' that he had not disposed of the residue", made after the execution of the will, as shewing that, when he made the will, he hud not given the residue to the executrix whom ho had then named, but that ho contemplated making some other dis- position of it, and Lord Loughborough expresses himself very strongly upon the same point. 2 Vesey 80, 1, 2. In this cose the testator, McDonald, shews by the terms of the will it- self that he did not intend that the executors should take the residue of his estate for their own benefit, but were to dispose of it as he should hereafter instruct them to do, which instructions were never given. In Bradden v. Ferrard, 4 Russ. 87, where the testatrix began her will thus ; " I constitute and appoint Robert Ferrard, of Fenchurch St., Esq., my executor, to see that my will is put in force", and did not leave the executor any legacy, it was held that these words appointed him to the office of an executor only, and that he was a trustee of the residue '.indisposed of for the next of kin. These cases, I think, are decisive. Ist. That the executors do not take the property in dispute, as execu- tors, under the old principle, that the bare naming of executors vests in them whatever is not otherwise given away. 2nd. That they do not take it under the words of the will, which manifests an intention to give it to others. Is not this, then, a case of intestacy as to this residue, and if so, can the will be resorted to, to exclude her from receiving the share given to a widow in cases of intestacy by the statute of distributions. The following cases are, I think, decisive upon that point, Pickering V. Lord Stamford, 2 Vesey, Jr., 272. " Thomas WaUon, by will dated August 22nd., 1754, gave certain parts of his real and personal estates to his wife, doclaring the provision he had thereby made for his said wife, is and shall be in bar, full satis- faction and reference of all dower or thirds, which his said wife can have or claim in, out of, or to, all or any part of his real and personal estate, or either of them". In a subsequent part of the will, there was h beon which the decision of the Court was given. James contended that upon a statement of debt and interest, and al- lowing defendant the benefit of all the credits claimed by him, a larger balance would be due, than was claimed by the plaintiff under tiie agree- ment, and objected that the rule sliould le-itiain tiic plaintiff to the J 8 138 fjj:iger v. taylok. 4! I ( 1 ■ Ill is.. 1 1" , f : 1 ? . s,. I Teclaratioii, plea, or subsequent pleading, delivered in any cause in term or vacation, a notice to the following effect may he endorsed ; " Fourteen days are given to the plaintiff (or defendant) to plead, reply, &c" in the cause, and there- npon if the party thus notified shall neglect to file his replication, re- joinder or other pleadings, as the case may be within fourteen days from the time of service of such notice, and to deliver a copy of the same to the opposite attorney, the party giving such notice shall, after the ex- piration of that time, be at liberty, being plaintiff in tlie cause, to mark a default as for want of plea ; or being defendant, to sign judgment of non pros : provided, however, that the Court or a Judge may, upon ap- plication, grant further time to plead, and may also, upon proper cause alleged and verified, order such default or nonpros to be set aside, upon such terms as shall be thouglit reasonable and just ; and provided also, that the Court or any Judge thereof may in such cases as require it, give a rule or order to plead, reply, &c., within any shorter period than fourteen days. By the Court, 20th November, 1853, J. W. NUTTING, Proth'y. If; y,» REGULA GENERALIS. It is ordered that the rule directing the hearing of coimsel in civil ejnisps section one liundredand seventy-four of the " New Practice Act" 1)»' liereat'tcr in force on tlie trial of criminal causes. T'.y the Court, iOili November. ]8."io, .1. W. MTTINi;. rier. <'% PROVINCE OF NOVA SCOTIA. IN CHANCERY. BEFORE THE HONORABLE ALEXANDER STEWART, MASTER OP THE ROLLS. ENOS COLLINS v. HANNAH STORY, d. at A widow is entitled to ^ower in her husband's equity of vedemntion al- tA P " ^':•■^^^P"'■'y «» '''« f"P'-tgagc, for the purpose of releasing her do o"' S^■ der the Provincial statute ; and her claim will be protected l.v the Court of Chan er - md.sr.bat.ne; the su.-plns left after foreclosu.e and sale of "the mo.-tg«god i rctLiscs and after payment of the incumbrances to which she was a party. Promises, Juilgment delivered by the IVfastcr of tho Rolls, August 12, 1851. The applications on behalf of the petitioners were heard on Tuesday last, Mr. Shannon having argued the case for Mrs. Story, and J/r. Cogs- well for the 3Iessrs. Gillespie. In this case at the instance oi Enos Collins, upon several mortgages made by Samuel Story, deceased, which catne to complainant by align- ment from the mortgagees, a foreclosure has been decreed against sevenil parties, among whom are Mrs. Stonj, tho widow of the deceased, and Messrs. Gillespie, judgment creditors of the mortgagor. AU ;he pro- ceedings have been had after his death. Upon a sale o': the mortgaged premises, a balance, after paying the complainant, of £324 4s. lid. re- mains at the credit of the cause. In this balance the widow claims doier ; the Gillespies, who arc represented by the IMaster to be entitled to rank next after the complainant in respect of the mortgaged premises, resist this claim, contending that they are entitled to the whole balance. There are four mortgages, to each of which the widow is a party, each of which she has executed, and she has released her dower in each m accordance with the Provincial act. M. R Almon, also a defendant, is tho mortgagee of the second and third mortgages, and having pnrchi.sed the first inort-age from the liold.-r .,f it. he tissiuMi-d tlu.in all to tho compiainnnt. To 'the d.-ed of Ill ' i ! 1 if 1 iil ,( ! rf,. 142 COLLINS r. STORY, nflsignment she is a party, and again released her dower to Collins. The fonrth mortffasfe is of other lands than those thus transferred to the com- {dainant, and Mr. Tobin, the mortgagee, assigned to the complainant. All of these conveyances are in the form usual in this Province. In law they are deeds in fee simple on condition subsequent. By the se- veral conditions tlie monies secured by them respectively, were payable in one year after date. None of these conditions were performed by Story, and the complainant therefore, by tliese assignments, became, technically speaking, absolute owner of the fee 8im]>le. But every law- yer knows that in this Court a mortgagee can only «lemand the money to secure the payment wliereof a fee simple is mortgaged to him, and that upon receiving it he must re-convey the fee to the mortgagor. Every lawyer also knows that the interest of the mortgagor, called the equity of redemption, is a substantial interest ; that it may be sold by himself or seized by a creditor, and that this equity, though originally protected only in Chancery, is now known to, and recognized by, the Courts of common law. Upon these applications two questions arise ; — 1st. Whether a release of dower by a married woman to a mortgagee so entirely divests her of her rights in the premises as to enable the husband afterwards to convey them in fee, or by way of mortgage, un- encumbered by her dower. 2nd. Whether a judgment creditor can avail himself of such a release and sell the premises, freed fi'om such incumbrance, nnder the Provin- cial statute passed in 1841, cap. 49. It is worthy of observation that neither Mr. Almon, Mr. Collins, nor those who prepared these mortgages, relied upon the affirmative of the first of these propositions, for they procured Mrs. Story's release to every one of these conveyances. I have enquired of one of the oldest and most experienced members of tiie profession, as to the practice, and he informs me that except as regards very small sums he had always obtained the wife's relinquishment of dower, upon second and subsequent mortgages, as well as upon a first mortgage. Not that this practice would authorise me to decide the question in accordance with it, if the law require me to decide it otherwise ; but it relieves the Courts of this country from that difficulty which pressed upon the Judges in England, with regard to the right of a widow to dower in her husband's equity of redemption, and other trust estates. Thus Lord Talbot, in the case of The Attorney General v. Scott, cases Temp. Tal. 138, speaking of the rule that she had no such right, says, " How this rule came to be estab- lished I cannot tell, but that it is established is certain", and he hesi- tated therefore to disturb it, " although it was settled upon the authority of an obscure case, because in so doing he might, perhaps, shake the settlements of five hundred families". IN CHANCERY. 143 nor the to (lest and lys luent Ijord Mansfield, too, in speaking of Sir Joseph JekyVs endeavor to es- cape from this rule in Banks v. Sutton, 2 P. W. 700, says " That Sir Joseph's decision produced much consternation in Westminster Hall on account of the confusion it might produce in disturbing settlements, and on that ground alone it was not followed". This great Judge elsewhere calls it a bad rule, and not founded in law or reason, and Lord Hard- wicke, in Carbitrn v. Inglis, says, " How the distinction" (between tenant by the curtesy, and tenant in dower) " came to be settled at first, it is tlitficult to find a sound reason for, but now we must adhere to it as es- tablished. The reason of the rule appears to have been this ; — as it was necessary to tiie consummation of the title of the Avife at law, that there should be seizen of the husband, and by the preamble to the Statute of uses, it was recited that by means of uses the wife was defeated of her dower, it appeared that the wife of the cestui que ttse was not dowable at law, and that as a use at common law was the same as a trust, since the statute, the wife could be no more endowed of a trust since the sta- tute, than at common law, and before the statute, she could of an use. But the dissatisfaction with the rule became so universal, that at length it was abolished by Parliament, and now, by the statute 3 and 4, W. 4 cap. 105, a wife is placed on an equality in this resjiect with her hus- band. In the United States, to use the language of the late Judge Kent, (4 Com. 44), " the equity of the wife's claim has met with a more generous reception than in England. In Massachusetts and several other States, and probably in all, the wife is held dowable of an equity of redemption. Though she join with the husband in the mortgage, and the husband should afterwards release the equity, the wife shall be entitled, at his death, to her dower in the lands subject to the mortgage, and if they are sold under the mortgage, then to her claim as for dower iu the sur- plus proceeds, if any there should be". As, therefore, we have no such practice as embarrassed the Courts in England, — no such family settlements to uphold, — and as the question is res integra in this country, and we have not those artificial refinements and distinctions incident to a great people, of which Blackstone speaks in his commentaries (1, 107), I might perhaps avail myself of the prin- ciples announced by that learned Judge in the same page. Speaking of the office of the Colonial Judge, he says, " "Wliat of the laws of Eng- lantl shall be admitted and what rejected, at what times and under what restrictions, must, in case of dispute, be decided in the first instance by their own Provincial Judicatures, subject to the revision and control of the King and Council". But I am not called upon in this case to ex- ercise this judicial function. This decision proceeds on my view of the principles which governed, in equity, in England anterior to the passage $, if, . Ml COLLINS V. STORY. of the Act of Parliament, 3 and 4, W. 4, c. 105. Wo luivc in this Vvo- vince no such enactment. In Dixon v. Savilic, tlie hiw on this subject was carefully reviewed, and the doctrine that a wife could not have dower in an equity of rc- demjjtion was sustained. There the husband had, before marn'aye, mortgaged the fee simple, and consequently he had no legal estate in the lands, whereof the law covild hold his widow dowable. Now, as a married woman could, by acknowledging a fine, divest her- self of her own real estate, it followed that by a similar process she could after marriage release her right of dower to a purchaser or a mort- gagee. " Although it was at first held that she did not bar herself of her light to dower by doing so, but afterwards it was settled that she did, because having nothing in her husband's lands in her own right, her joining her husband in a fine could be for no other purpose than to bar herself of her dower". 2 Powel on Mortgages, G73. Li like manner, a married woman can bar herself of her jointure. Now, the potency of afne over a woman's rights consisted in this, that it was a judgment of a Court of record in a Real action, in which she and her husband were defendants, whereby their rights, like those of any other parties to such an hction, were foreclosed. There can be no averment against a record, for it imports verity; and a judgment against husband and wife in a suit for her land was held to be as con- clusive as if given against a feme sole, Co. Litt. 121 a, note 1, and as the annotator remarks, " from enabling the husband and wife to defend her title, and making the judgment in such defence to be conclusive, per- mitting them, to compound the suit by a final agreement of record, in the same manner as other suitors, was no great or diflicult transition, more especially when, in the case femes covert, fines were never allowed to pass without the Court's secret examination of them apart from their husbands, to know whether their consent is the result of a free choice, or the husband's compulsive influence. Id, lb. The Stat. 13 Ed. 1., concerning the levying of fines, enacts that if a woman covert be one of the parties to it, then she must be first examined by four of the Justices (that is of C. B.) and if she doth not assent there- to, the fine shall not be levied. Lord Coke, in his commentary thereon, 2 Inst. 515, states, " That the examination must be solely and secretly, and the effect thereof is, whether she be content of her own free good will, without any menace or threats to levy a fine of tliese parcels". Nothing, therefore, could be more conclusive than the effect of a fine at law, upon a /e?Me corer^'s rights. It wholly divested her of them to all intents and purposes whatever, and as Mr. Justice Uliss remarks in his judgment in Troop v. Troop, our Act has adopted almost the very words used by Coke, making such examination effectual without the other formal proceedings. Our Act 11 Geo. 3, Cap. 6, enacts "That IN CHANCERY. 145 when a sale shall be made of lands or tenements by husband and wife, before sucli deed shall bo valid and sufficient to bar the wife from the recovery of her dower after the decease of her husband, she shall be ex- amined by one of II. M. Justices of the Peace, (as is therein stated), who shall certify such acknowledgment on the deed, which shall forever bur her from the recovery of her dower in such lands so conveyed". Undoubtedly, this language is as comprehensive as can well bo conceiv- ed, but the eftect of such a release upon a. feme covert's rights, cannot be greater than that of a fine ; for, as I have said, this is a judgment of a Court of Record, and by it, it is adjudged that she has no right in the lands comprehended in the fine. I apprehend, therefore, that in determining this question, I may deal with a release under our statute, as Chancery has dealt with a release made in England by a fine. Now a Court of Equity in England will look beyond the mere^orm of the procedure, and disregarding the tech- nical effect of a fine, restrain it from operating beyond the intent of the parties to such procedure ; and from being used to effect that, which the parties did not intend. For this purpose this Court will look into the conveyances, and examine into the circumstances, in order to deter- mine that interest. Mr. Coventry, in his note to the text of Powell's Treatise on Mort- gages, page G78, says, " The practical rule to be collected from a review of all the cases is, that if the wife concur with her husband in a fine of lands, to which she is or may be entitled in right of her dower or jointure, for the purpose of improving the title of the mortgagee, and the mortgage deed contains no limitation of the estate beyond the security, and reserves the equity of redemption to the husband alone, then tlic fine which the wife has levied to give effect to the mortgage will operate for the security of the mortgagee only, and not absolutely to bar the wife of her dower or jointure as against the husband's heir, volunteer oi- purchaser, and this on the principle, that nothing more appearing on tlio face of the instrument to have been intended, than the primary object of borrowing and securing tlie money, the deed and fine shall operate no further or otherwise". " Hence" (says Mr. Coventry, in page 676 of the same vol.) " arises the general understanding of the profession, that a fine, though an absolute bar at law, may in equity, ui)on the ground of its having been '^^vied for a particular purpose, be restrained from ope- rating beyond the extent of the particular purpose contemplated". Citing Goodrich v. Brotcn, 1 CIi. Ca. 49, and Mrs. Danby's case, 2 Eq. Ca. Ab., 385, B. 2, as cases in which Ciiancery had acted upon that principle. After some other observations, tlie annonator concludes thus ; " The Court here (Naylor v. Baldwin, 1 Cli. Ca. 130), evidently refers to the doctrine under consideration, and admits clearly that the fine may operate as a total or a partial bar to dower according to the 19 146 COLLINS V. STORV. M ii 1 ''' I . u intention of the parties. Wliether a corresponding Btatemcnt can be made as to the operation of a fine in a Court of Law, the caiea do not wai , ant tis in deciding, but no sound reason occurs why a Court of Law should not adopt this equitaUe principle, and restrict the effect of the fine to the purpose intended, in the same manner that it restrains the opera- tion of any other species of conveyance. Such is the view wliich this writer takes of the law of this Court, na iipplicable to dower, as well as to otlicr interests in lands ; nor is there iuiytliing in tlie circuiiiKtance that dower is a strictly legiU right; for Judge IStory, 1 Eq. Jur. 576, says, " The result of the various decisiona on the subject is, that Courts of Equity vill now entertain a general con- current jurisdiction with Courts of Law m the assignment of dower in all cases". And in a note he adds : " I am a«vare that Mr. Park, in liia excellent treatise on dower, doubts if the doctrini is maintainable to the full extent; but notwithstanding his doubts, it appears to me the just re- sult of the authorities, and maintainable upon principle". Why should not this Court examine into the nature and intent of con- veyances of dower, as well as into llic other transfers of a/ejn« covert i If, having right to dower in her husband's estate, worth £10,000, she concur in pledging that right to a mortgagee, to secure a loan to her hus- band of XI 00, the real nature of the pledge and loan appearing on the very deed to which she gives her voluntary assent, (and without such assent that right cannot be aifected,) why should this Court alter the na- ture of the transaction, and hold her to have stripped herself of a right which would yield her, on the death of her husband, an annual income of twice the amount she had thus secured to the lender ? Why should such a pledge enable hjr hu.^band to borrow additional monies upon that right without her assent ? And why should it enable her husband's cre- ditors to possess themselves of that right ? A married woman's rights and interests are under the especial pro- tection of this Court. I^wer is said to, be favored even at law, but surely thus to deal Avith a mortgage such as I have auggeeted, would not be to protect but to defraud a woman. There may be some shew of reason in this Court not relieving a widow when the husband was never seized of an estate at all during the coverture, as was the case in Dixon v. Saville. There was nothing on which the Court could fasten, to exercise its peculiar jurisdiction. She never was entitled at law to dower ; equitas sequiturjus ; she had exe- cuted no conveyance, consequently there was none for the Court to ex- amine, and the long established I'ule of the Court was, that a woman could not be endowed of trust estates, or of an equity of redemption^ which was held lo be aniUogous to a trust estate. In the case I have suggested, tliere is no rule of equity by which the Court is restrained from enquiring into the iutentiou of the parlies to the mortgage. At IN CHANCERY 14? liiw, indeod arties". In DoUn v. Coltman, the wife joined witli her husband in a mortgage, and levied a fine to tlie iiuent to bar her dower, and in consideration thereof the husband agreed the wife should have tht; redemption of tlie mortgage, and the liusljand afterwards mortgaged this estate twice more. The Court took this agrecnicnt to be friiniliiicnt as against the sul)se- qucnf mortgagees so far as to entitle tlu- wil'j to the wliuh' ('(Hiity of re- demption ; but in I'egard the wife in conlidiiiec of this agreen\eiit had levied the fnie, anil thereby barred her dower, and the husband and wife both living, the Court decri-cd that al'trr tlie husband's decease the wife, in cn^e siie should survive liini, should enjoy her dower ; and where-- as the mortgagees pressed that tlie dev-ree niiglit only be, tluUslie should enjoy her dower notwithstanding the fine ; tlu" Court thought it unrea- wnable in this ease to put the wife to her v.rit of dower, because they n\iglit convey away the estate, and she not iuiow agjiiu-it wliom to bring her writ of dower, and therefore deer(>ed the dower to her. Now in Xai/hr \. ]Ui1(hrin,\W wile's dower was totally i)arnMl at law liv I he i; lli<('(imt (it (.'liaiieerA- nevertheli aid. unless the wil'< IN CHANCERY. 149 have barred herself totally by levying the fine, it shall only bar her dower so far as the mortgagee is concerned. In Jackson v. Parker, a similar constrnction was given to a fine ; and there are several particulars noticeable in the case of " Dolin V. Cohman". First. The Court there decreed dower to the wife before the hus- band's death. Second. Althon^.h the Court would not permit her and her husband to deal with the eciuity of redemption so as to defraud subsequent mort- gagees, and although the wife had levied a fine to the intent to bar her dower, yet the Court, looking to the real nature of the transaction, re- strained the oi)eratlon of the fine to efiecting that intention. Third. This case shews tliat in the ex' rcise of its concurrent jurisdic- tion, etjuity will restrain the operation ot a fine, give relief itself, and not merely refer the wife to a writ of dower at law. There are many other cases showing that equity will restrain the operation of a fine by a married woman to its real intent, not only with regard to her dower, but to her own freehold, jointure, &;c., but those I have quoted may suilice on the present occasion. Then as to all these mortgages, what were the respective considera- tions of them ? The mortgage monies. What tlie considerations to 3frs. Story ? The loans to her husband. Hhe could not be presumed to have known that they were to operate Ijcyond mortgages. Not a single ex- jiression intimating that *liey were so to operate is to be found in any of them. On her several examinations she acquiesced in these several se- curities ; but becaii.-'j she assented to relincpiish her dower for the secu- rity of the mortgagees, is it therefore to be inferred that she understood she was relluipiishing all her interest in the property, for the benefit of any creditor who might obtain judgment against him, as the Gillespies did. Air. Aliiwn took from J/r. Story ai'tcr thej^ had obtained their judgment, as a further security for them, and to facilitate a sale of it for their benefit, and that of other creditors, a deed of alibis, »S0 COLLINS r. STORY. n 1 ¥'\li p:'^':! rest in his lands is bound to the judgment creditor, but if the wife have not paned with her riglit of dower therein, the creditor's lien is neces- sarily subordinate to that i-ight. Now holding us I do, that Mrs. Story has only pledged her dower to the re-payment of the loans, and these; having been re-paid by the sale of the mortgaged premiss. !s ; it follows that a right of dower in the residue of the money produced ly the sale still remains to her. I need hardly remark that this money by the principles which govern this Court, re- tains the character of land for many purposes, and this is clearly one of those purposes. 3Ir. Cogswell has referred to 7 Dane's Ab. 422, which, however, only shews that it was held in Virginia, before that State passed an Act giv- ing widows dower in trust estates, that a widow haJ no dower therein. In the case of Majory v. Putnam, decided in Massachusetts, and cited by that gentleman from 4 Dane, 183, it is said that the statute of exe- cutions gave the judgment creditors the whole estate. I have already remarked that by the terms of our statute, the judgment creditor's right is subordinate to the widow's ; and as regards the other citation from this author, I may observe, generally, that by the later decisions in Massa- chusetts, the wife is allowed dojwrer in an equity of redemption, as ap- pears by tlie reference to Kent, I have already made. For tliese rca><>ns I accede to the prayer oi Mrs. Story, and direct that the casts of all the petitioners on this ai)plication be first taken out of the money at the credit of the cause, and that one-third of the re- mainder be investei under the direction of a Master, in such manner as may assure the due payment to her of the annual interest, and the ulti- mate payment of the principal to the Messrs. Glllespics. m: i*»i Note. The abstract at the head of the foregoing case of Collins v. Story, is not quite accurate, inasmuch as although the remarks of the learned Judge, in the commencement of his opinion, forcibly sustain the general principle, that a wife is dowable in her husband's equity of re- demption, yet the decision is, in fact, confined by its terms to the case of mortgages made after coverture, to which the wife was a party to re- lease her dower. The abstract should have been as follows ; — A widow is entitled to dower in her husband's equity of redemption, in a caso wliere siie was a party to a niortgaRe for tiie purpose of releasing her dower, under tiic Provincial statute ; and lier claim will be protected by the Court of Cliiiiicory, in distributing the surplus left after foreclosure and sale of the inortfraged |irciniseH, and after payment of the incumbrances to whieli she was n party,— Keiohtkb. have leccs- er to sale sidue ardly t, re- ne of only giv- rein. cited exe- eady •ight i this lissa- ap- irec t out 3 re- ?i' as ulti- S V. the tlie re- case I re- el so ndiT y, in lisc'X) p.'^l CASES AUGUED AND DETERMJNKD IN TICK SUPREME COURT OK rilK PROVINCE OF NOVA SCOTIA. MICHAELMAS TERM, ms. RICHAJ^D NUGENT v. JOHN H. CROSSKILL. November 21. James moves for rule absolute to set aside judgment of nou pros in an appeal cause. ^ It appeared by the affidavit of the plaintiflf; and the certificate of the rrothonotarj, that he obtained judgnK..r against the defendant in the Mayors Court or upwards of Five Pounds, from which tlie defendant appealed, that the plaintiff entered the appeal for trial, that the ca"e -us not entered by or on behalf of the defendant, that plaintiff had em- ployed no attorney or counted, that upon entering the Court on the morn- n.g of tnal, he was informed .hat the cause had been called and jud..- ment g.ven against him for want of appearance, that he had a good cause of act, on upon the merit., and that he was taken by surprise on learn- ing that the ,-ause had been called. Upon this ullidavit an application v^as nnmedmtelym.de for a trial, the defendant being in auindance, and n.s Honor Judge Do.n> granted a rule nisi, which was no^v- sou^h; to be made absolute upon plaintiff paying costs of the day. The defendant, in person, coutra, read an a(llda\ it, by wliich it -ip l.eared that he had applied to enter the cause for trial, and was inform- ed that It had been entered by the plaintiff, that he ha. A. Aid. 7GG ; 11 Trice TioO ; 2 ])owl. P. C. V2o-['>, and 028 ; 1 M. and (i. 2(3.") ; 9 Dowl. P. C. 70.3 ; 8 M. and W. TOC; 3 Ans. (;27 ; 2 T. K. 745 : 10 Eng. Kep. .">i;5 ; 1 T. R. 710 ; Camp, oo'.) ; 7 Taunt, 3;) ; 2 Ch. Arch. 1027 ; 2 Iki*. .and Pul. ^392; ."» IJurr. 2(;;)9 ; "Willcs, l'.)l. Also, the case of Ihttton v. HalU decided in this Court, where tiie defendant with- drew the general issue, and paid ten shillings into Court. The plaintirt" went on and ohtained five shillings additional damages, and the Court allowed the plaintiif his costs up to the time of payuient into Court, but not subsequent costs. Young, Q. C. did not object to the plaintiff withdrawing his replica- tion on payment of costs, but supported defendant's right to withdraw liis plea, and contended that the money was not only paid in by mistake, but irregularly, as it could not under our statute be paid in without leave of the Court. Cites Prac. Acfi s. 1«. Ch. Arch. 274, 280, 1179. The English cases do not ai>ply to this case as it is a new j)roceeding, not known in England. Tlie English statute excepts several actions from tiie rule jjcrmittiug payment into Court, and this is one of the actions excepted. Alone}' paid into Court by mistak(^ can not only be recover- ed back, but the Court or .Judge may order it to be repaid. Ch. Arch. 8th K(l., 11 '.li;. llAr.i.iiiiirroN", C. .J. delivered tin.' dpinioii of the Court, as follows; Both )iariies here an; in a ^iniilnr predicament, and both are applying to our di'creliun to (.'scape from their res|)ectiv(! posiiiouij. The plain- tiif has tiled a replication whidi Ik- wislies to witiidraw, but he cannot do so without ilie U'ii\e of the Court. 'l"h<' defendant also requests \\w inlcrt'crence of tlie Court on account of his own mistake. The Court iiKiy grant lioih of these rules, and in doing so they may impose reason- alee lerins. V»'e think that jusiice retpiires that both pleadings be with- drawn, and \\'e will grant a ride permitting the plaintiif to withdraw his rt'iilii ation. if he w'kIk.'s to do so, upon pauiieut of the costs occasioned by it. \W: \\\\\ ;\!^o pi-rniit l!ic defendant to willidraw his plea if lu! w i^lie- to do M), up''i ]>aynient of costs in'casioned by the plea. And wc will [lerniit tin,' plainlitfto iliscontinue the action if he sees tit to do so witho'.ii eii.-i<. The rule to jia.-s williuut costs on cither siile. Rule accordinjilv. ik. :\ii(IIAi:lmas teum, isoii \:>:> McGlLLlVKAY v. MclSAAC. Nfivcmbcr 20. , The grnntiti;: (if n rprtincntc that nn notion of ticspnss wo« ^rolll:;l^t tn try a njrlit, so Hs to entitle the pliiintill' to coAts, is n matter tor llie dibcretion of llie picsidinj; .liidgc, witli wliieli tlie Court will hot iiueifcre. Tliis was ill! ai'tioii oftfcspass tfitMl licfoi-e T)odd, J. at Antigonishp in Novciiiltor, 1H.")2. Vcfdicl I'or ])laintitf', diiinagi's one shilling. Th« (Ici'c'iulaiit ohtaiiit'tl a rule nisi to set aside this verdict, upon objections to the dociinieiitai-y title, whicli was ai-gued in Easter Term, iind the ver- dict sustained, tlie Court being satisfied that the plahitiffhad establish- ed a ])()ssessoi'y title. r>y a postscript to the Jtidge's minutes in this case, the following facts appeared, xhe presiding .)udgo wiis requested to certify on the back of the issue roll, piirsuaiit to cap. 13, s. G.'i ot the Revised Ltiws' at the close of the trial, "' thiit the action was brought to try a right be- sides the mere right to recover damtiges ibr the trespass or grievance tor which t'.ie action was brought", so as to entitle the plaintiff to reco- ver his full costs. The Counsel ibr the plaintiff ibr tiiis purpose handed tl'^ Judge as the issue roll a lunnber oi j)a[)ers attached together, upon which His Lordship wrote and signed the requisite certilicate, but doubt- ing whether the paper could be considered as tin issue roll, he immedi- ately cancelled the certilicate until he had an opportunity of consulting his brethren upon the point. W. Johnston now moved for a rule absolute, to give judgment for the ]ilaintifi'wiih full eo^ts, upon the grounds that the Judge was bound to tertify (4 Eng. Rep. Hi), and that under similar words in the English statutes it had been held that it was not absolutely indispensable that the certificate should be made ;it the trial. 2 H. and C 02 1 ; (> T. K. II. Young, Q. C, in shewing cause against the rule, denied that the Judge was bound in any case to certify. '6 East. 4'J.'J. In this case, where a' rule was asked to coini)el a Judge to certify that a trespass was wilful and niiilieious, it was iidmitted that a Judge was morally bound to eerti- ty in a proper case, but held that it was not only disrespectliil to seek to compel a Judge to certify, l)ut ineHicient, inasmuch as it wtis the in- tention of tiie ^lillute to give the discretion to the Judge, of granting or •withholding liie rule. i)j,!s.-?, J. AVc cannot compel a Judge to certily. I refused to do so in a ( a.-e in wiiicji one oi' my brethren thought J was wrong in so doing, lint it was my con.-.eience that w;i> at .^take, and not his. 1M M<(}TI-MVR.\Y V. M. ISAAC. h I Vimnff, (,J. ('. 'riicrc \vii'< lirrc no issue (llnl. Our I'rdcticd Act nl- low,-) it III In- lllnl lit iiiiy liinr licCdri' Iriiil. 'I'lrm wiis not it explaincil liy lint liiiipiapf^ <>f th« Kn)fli^li statutes, wliieli were not as express as our Act, ami li'ul hfon lilierally eonxtnieil. lint onr Aet requires that it xliall lio inmlo not only liy the .linl^e who tried (he eanse, Inil at the lri:il anil on thtt iMiin roll. Cites \ Dow. ami liy. I.'i('>; M. KI7 ; 2 H. and (I TiKl ; M. und Ci. 82'.) ; 7 INI. and W. ;!|H ; and dislinKiiislies .^ l".in^'. 200; .| H, find C. Ki;:! ; .') It. and Aid. Mil The olijeet ot'the .statute was, that tlin Judgp should eertiCy IVoni hi.s ininieiliate impressions. It' he eertillos now, his miiul eiinnot liiit he inlhieneed by the Hiilisei|iient argnnient in this eaiif Act. W. Johnston replies. The ileljiy is ueconnted for by the Judge's min- uto upon this point ot'the case, and hn also slatc.>< that he was pr(>par(Hl to certify at the trial. In '.) I>. and U. 717. where llio counsel follow- ed the Judge to his lod^'illgs and obtained the certillcate there in the ab- eencc of counsel for defendant, it was admitted lluit a strict eonstruclion was iaipossibh\ inasmuch as th<> .\et reijuirca the cerlilicato to be niado ftt tbo trial, while the trial must bo over before it can possibly be made. I)oi>n, J. The main (picstion !s as to the issue roll. If (his docu- ment is sutficient the plaintilV shall not sull'er by nty error. W. Johnston. Tt was handed to the .It'dsjc as such, and the Court will not allow a technical objection to its form to jirevail. Cites 2 Dowl. •nd Lowndes, 2(7 ; 2 Dowl. >f. S. .'l.")0 ; 8 Dowl. 7^2. Johmton, Q. C. (same side), contended that the statute is entitled to a liberal construction. The W ;;lish cases turn on theiiuestion whether the ,Tudge m.-idc up liis mind at the trial or not, which was certainly done in this case. The only remaining (jnestion is, whether this certifi- cate was made on the riglit paper. In J'aine v. Cuilell, i) Dowl. 745, an arbitrator, under an Act of rarliamcnt wliich gave him the same power as a, .ludge, ccrtiticd on the back of his award, and it was held snflkient. In England, a cause is always tried under an issue roll- Here the roll is not always filed. Are verdicts in causes tried without an issue void ? If not. is an issue roll to be indispensable for this pur- MICIIAKLMAS TERM, 1853. lil pose only ? In To/nn v. O'Neill, U'ied licro last Eiwtor Tt-rm, the ver- dict wus taken on the 8th, and the certificate on the 10th. Young, Q. C. That was hy consent. Johnston, Q. C. It roiiM not ho donn hy <'onsont, if not nuthorined by ■tntuto. Nohody can auflioriso a .Iii(l<,'i him, the said defendant, who applied t]ic proceeds to the use of the road. This is the trespass conipUiined of, and the ([uestion for the opinion of llie Court is, " Is the defcn(huit liable to the plaintilfin damages for his said pioeeedin;^.^ as sueh Commissioner. (Signed) Ciiaklks and Danikl Owen, Attoi-nies of Plaintiff. GkouoI'; S. Solomon, Attorney of Defendant. Upon these facts the cause was twice argued at length before the Court by Whidden for i)laintilf', and Yoting, Q. C. ibr defendant. In last Easter Term, the Judg(>s then present delivered their opinions as follows : IlALLincin'oN, C. J. In deciding upon this case, 1 will consider, 1st. What is the law of England relative to the ownership of soil over which a higlnvi.y passes. 2nd. To what extent that law has been adojiteil by our neighbors in the United States, whose situation so nnich resi>mbles our own. 3rd. Has our statute law made any alterations in the common law doctrine relative to the ownership of the soil of highways in general. If not, 'llh. Can tte discover any intention in the; Legislature to enact that land wliijli the public acrpiire a right to use as i\. highway, under any of tiie ads pa-seil for that purpose, is to be .subject to a different law from liig]iv,;iys in general. Upon the first poini, the law is very plainly laid down i'l ;)rd I>ac. Ah. litle Higiiways, !»., " To whom the highways and soil bel.ing". '' Though every highway is said to he the king's, yet this must be understood, so as that in every higlr.vay the Ling and his subjects i lay pass and rc-jiass at their pleasure. Bui the freehohl and all the p;ofits, as trees, iVc, be- long to the loid of the soil, or to the owner of tlic lands on both sides of I he way". This broad position is fully sustained by the ca-:es in which dial ri^jhl has come in tpiestioi . ICNr.LlSIl C.^SK.'i. In Doraston v. I'ayne, 2 H. lilk., ."i28, replevin for taking plaintiff \s rattle, jivowing that d' feudnn' wa- .-ci-:ed in fee i»f the locus, and tool. MICHAELMAS TKliM, 1853. ll'.l the cixUlc (\»xi\i\gQ feasant. Pica, that the /nnw Iny conti<^iu»us ami ml- joiniiiir to a highway ; that the Iiedgos ami fences between the locus and liigliway were out oi' repair, and tliat the cattle fjcing in fftcsai'l hi;/hwoi/ rnod and escai)ed thereout unto the locus, through th<' dt'Cccts ol'the lencos, &<'. I'lea held bad on special demurrer, because it did not stale that the cattle were ;)assing and re-pussing on the higiiway when they •■scaped. It was contended by the del'endanl's counsel that the cattle liad no right to be on the highway (or any oilier purpose than to [)aiiropriaIed to the use ot a liighnay, the use only is taken, and except so far as that goes, the right ol soil i-emains precisely us it wan before, — so inui'h so, that tiie owner of the soil miiy n'cover it in ejectnuMil, — subject iiowevci', to the ea.emeni, and be has a right to the freehold and all prolits above and under ground". Pciloij \ < '/nmdli-r, per I'nrsons, ('. .!.,(> Mass. II. l.'jii. Th(! soil and I'reehold remain in ibe owner, :ilihoU'_di eucundjei'ed witii a wav, and cverv use to which the land ihmv lC-2 KOCII V. DAUPHINEE. i be applied, and all the profits which may be derived from it, ootisistcnt- ly with the continuance of the casement, the owner can lawfully claim. vSame case, 157 ; There can be no doubt but that the owner of the land can sink a drain or any water course below the surface of the laud co- vered with a way, so as not to deprive the public of their easement. In S/ackpole v. Ifealei/, IG Mass. R. 'do, it was decided that cattle cannot be turned upon a highway for the purpose of graziu,"; — the herbage be- longs to the owner of the soil. 3 Kent, 4o2 ; " The owners of the land on each sid;; go to tlie centre of tin' road, and they have the exclusive right to the soil subject to the right of passage in the public, they may 7naintain ejectnu'Ut i'or encroacliuients on the roiid, trespass for cutting trees or (lig^ing u[) the soil", tfcc. " T!ie conveyance of land bounded on a public higliwiiy earrios uilii it the I'oe to the centre of the road as part and parcel of the grant, unless the road bo plainly excluded". 11 Pick. ll);l ; ];j Jolinston, 117. Aldcn \. Murdoch, J.'J Mass. 2.")1). per Parker, C. J., " According to the priui.-iplcs of the "oniuion law, upon the (liM-oniinuancc of the i-oad (by lawful authority), a right to the com- plctf. (n'cupancy of llie soil would revert to the owner, the fee being in him, and the easement taken, away by lawful authority". Adants v. Eiiicrao)!, () Pii'kcring, oit. It was decided in this case that the owner of the soil, over which a tiirn|)ike roiid is laid out, may maintain tres- pass against llu; servant of tlu; corporation for tai»ing the herbage. Wilde, J., in delivering the opinion of llie Court, said, " AVe consider this a very clear case. The kiciis in quo, although part of a turnpike road, is llie soil and ficchold ol'tlic phiintiil'. lie has the exclusive right of properly in tiie laud; subject, iiowcvci', to the easement, or rights incident to a piiliiic highway, sucli as the right of jiassage over it, and the right whidi llic turup ke corporalioa luw to construct a convenient patli\\ii\, :iiul lo kci p ii always in guoil I'ejiair. To accotnpiish these purposes, the eorporali'iu may dig up and remove from place t(j place, williiii t'l'' liuiits laid out lor the Viy.u\. any earlli. sand and gravel, and may dig and cut up ^ods and Inrl', liui il by no means follows that the ('(ii'poiMtion \\;i< llic I'ight of hcrlKige, whicli is llic exclusive properly of the oWMiT of tlif soil, as well as ail trees, mines" iVc. I'nifcd S/ii/rs v. /frirris, 1 Sumner, 21. In ihis case, Slory, J. connuenced his judgment by saying, ** The geuei'al principle of the common law is, that the soil (>\<'r \vlii(li a >lreit or highway is laid out. still remains the projiei'ly of tim o>'igiiial owner, sul.ject to tlic easeiuent, and he may pa-^s the title Iherelo notwithstanding the incumbrance. This ])riuciple (he coutiunes) is lUit now contested, the only cpiestion is. how far it applies to t!ie actu- al circumslaiieo of this ca^e. That (pi'stion arises out of the expres- sion-, used in a statute passed by the i><'gislature of MassachuseKs in 17HJ. which, it WHS coalended. did pass the fee, by fair implieaticrfi. ♦" t*>' illCHAKI.MAS TE15M, 18.^:7. 1(13 town, iuiil the town afterwnnls convoyed to tlio l.'nited Slates. Tlie act of 1781 cnactnd, " 'I'liat the t'dhtc of nil hinds and buildings, and otiier materials ^/Z-eJi /row. fiiii/ person by xirina of the act, should bo ascertained by apiiraiserf, chosen in the manner pointed out by the act> and that the town should be liekl and obliged to pay to the person inte- r(;sted in tlie hiiiils, buildiu'^s, and materials afbrc^said, the sum at whieli they may be appraised. I'pon this, 31r. .lustice Story observes — " It is j)1ain how (he town imderstood the act. They acted upon' it as trans- ferring the title to them, and ihey accordingly, by their vote in 1801, intended tn grant it to the I'nited' States. This mistake, however, on till' part of the town, if it hi' a mistake, cannot change the legal right'of the parlies, liut the case must be decided wholly ujjon the terms and^in- tent of the Act of 1781". II(! adds, ai'ler reflecting a good deal ujwn the subject, •' My mind has at last come to the conclusion that the act of 1781 was nut inietvded to paPS the fre('hold in the lands, but to create only .an easement. 1 will sliorlly stale the reasons which have conduct- ed me to tiiis r<'«tiit. Jti the Jir.sf ji/occ, every act. of a s^jjccial nature in (ierof/adon i , ^.'- , -ute. n'es, lie sbail receive a rijasona- ble compensation llierclor", iind he very correctly decides, that the right to take private propc^rty for public use> i limited lo cases of public ex- ifjeiif^'. and subseipiontly says — " It' tiir words used be etjuivocal, and upon the Act it stands indiU'ercnt whether a ri;^lit of way only or a right of freehold be taken, the natural construction would be, tliat the Legislature intended an casement only, as that would be co-extensive with tiic exigency of the public use". Wiihout roorting to the lan- guage of the IJill of Kights. I think tiic i-ommoii ?-'.iise and common jus- lice of the connnon law would lead us to 'iie '^mnv results. From thesi' ca.-*'s, it is (luite clear that our ntiglibors in the United Sljites origiitJly adopted, and still retain the doctrine of the coinmoii law ndaenve to the ownership of the soil (jver wiiidn a hu^ghway passes. And I tliitdi sound j)olicy dictates the adoption of tW sanic doi'irine with us, for, generally s[>eaking, those who Tn e in the iiuinediate neighbour- hood of a highway, are, above all other.>, interesi*-.il in preserving it from obstruction or abuse, which their right ot owtkn-*liip, subject to the easement, enables theiu to do ; and I know of no siafcute which alters the connnon law upon this point in this Province. I tlierelbie proceed to the next tpiestion. •Uh. "\\ hether the acts which aiithori/e laying otit highways over private property. maniPst a(v intention. I i tlie part of the Le^laturc. i; hi I ill KVt KOCH /■. DAl'l'IilNEK. iiii !K . 1() m:\ko such Iiij^liwiiys siibjoct to a diircroiit law from hif^liways in gc- Jicral, Ity (livtv ilonc. to any particular person on his laiitl or property, without due recompense. 11) Cieo. .!, cii. K, s. 1. Where any dispute shall arise between the. parties eoncerneil and the surveyors of highways, relating to the dam- age sull'ered or likely to be sufl'ercid by such parlies, the same shall be determined by a Jury. ■iO (xeo. .'{, ch. 1, s. 1. Jury toa>s(<;:3 dainag(;s to the owner or own- ers, Arc. ,_/'('/ t/ic value of the lands, anil iuiprovctnvnls made on snc/i lands, to he tii/icn info mich highwaji. S. 2. provides for any damage, to the . The expressions in s. ."{ are, "To appraise and value the lands wanted for the road, and the (hiniages to such owner or owners". ■• 7'" aitnv and apprnise snc/i lands ; and to assess the damages to the owner or tenant of ?uih himh accordiiu/ to the just and reasonable value of the so me". Now, in these and all the subsequent acts upon the same subject, we find the Legislature using, indiscriminately, the words, " damage to the owner" — '" value of the land", — "expense uf purchasing tiie land", all with the same object lo compensate tlie owner whose land is required and taken for a liighwa.}'. Tliese statutes, therefore, made in pari ma- teria, must be construed together, anil I consider that the same mean- ing should 1)(.' attached to language thus indiscriminately u>ed, which meaning is well calculated to ell'ect the objet'ts the Legislature had in view when it used them, and that object evidently was, to compensate the owner for the damage he sustained by allowing the public to use his laml as a highway. 7. (ler». 1, eh. "J. Jury to lay out or alter such highway or road with most convenience (o the [)ublic, and least prejudice oi* damage lo the owner or owners of the land in which (lie said highway is to be laid out or .altered, and to assess the damages to the owner or owners of inch lands as the said Jury ^hail think reasomible _/(>;• the value of tht land, and improrenipnts made on the sam", ami also for the making of fences on the sides of such iiigliway ; sec. l-'i. All public higliway> hereaf- ter to lie hiid out as aforesaid, shall not be le-^s than (U< feet wiwle ; .sec. 1.3. Commissioners, li(.'lore making alterations at the iX[)eare of tin; Province, to make return to the (lovernor and Council of the probable i'\\K'i\>i: oi purr/iasihff enclosed or improved lands, anil the probabli- amount of any special damage which it may be necessary lo pay for carrying road through wa^-te ;md iwiimproved lands ; sec. 17. (See sec- MICHAELMAS TERM, 1«.^;J. Hu'y 19., relative to voluntary surrciKl(!r of land without cliar!«i' liy the own- er, for a public road or Iiif^liway, owner so voluntary ?iurrendcriiig lo have the whole of the land of the old road, in fee simple, in lieu of the land so given up. 4 Wm. 4, ch. (>9, s. 1. Throe frceholder3 to make a just and equit- able valuation and appraisement ot the damages to he paid to each per- son through whose land such new road shall run, specifying particular- ly and so[)arately what is to be paid to each i)roprietoryo/- daiuatje to soil, for improvements, any would probably have made some provision relative to mines or minerals, or other rigiits which, by common law, belong to the adjoining owners on each side of a highway, as is done in the English act, but I think it evi- dently ap[iears that they never contemplated any such alteration. In the case of Stackpole v. Ifetdeg, !(!, i\rass. .'SU, already cited, it was contiMuled that tin; languagi; used in some of the statutes respecting cattle going at large on commons or ways, indicated that cattle were permitted, under tliese statutes, to graze as well as pass and re-p;iHs over the ways. The Court said, "That if the Legislature intended such a material al- teration, is it to be supposed thtit they would not have expressed them- selves clearly, and not by doui)tful implication" ? I must here repeat what has been alr(>ady cited from i\Ir. Justice Storifs opinion in the case of the United States v. Harris, 1 Sumner, 21, '■'Th.at every act of a special nature, in derogation of private rights (which .dl these Acts undoubtedly are), ought to be construed strictly" ;. and again, " If the words used bo eipiivocal, and upon the act, it stands inditfereiit whcth(!r a right of way only, or a right of freehold be taken, the natural construction would be that the Legislature intended an 551 i ; ^1^1 ■I I6ii K()(;il r. DAUl'IllNEi:. caiieniciit only, us that woiilil be co-extensive with tlie exigcney of tlio public use". I am, therefore, of opinion, that the language of these statutes, when reasonably construoil, IaintilV. and, tlicn^fore, I (iiink that "the de- fendant is liable lo the piaintill' in damage? for his said proceedings", which is the (pieslion put to the (.'mirt by tlic case. Several other (juestions were [iressed upon ns at tiie argument, which this case does not present, such as what is to be done il the owner does not riMnove ihc trees, — arc they lobe left to oncumber the road, or is the Commissioner to i;xpcnd a part ot' the jtublic money in removing tliem, and thus diminish the sum that was appropriated to complete the alter- Hlion. When snch cases come before us. it will be necessary lo consi- der them with all Ihuir attendant circumstances. In some situations, it is desirable lo cut down all tiie trees, in order to let tiie sun in upon liie road ; in others more exposed, by tho sides of lakes or harbors, it is better to leave some for shelter, as is th", case along Hedford IJasin. It must be remembered that wood is becoming a very valuable article in tills Province, even for fuel, and may present a temptation lo a Com- missioner lo cut down llic wliole width oftlie road, wlien in some cases it would be more beneficial to leave a part of it standing. A Commis- sioner acting bona jiile ivould generally be j>rotectod under the law as it now stands, but if further legislation is necessary, let the Legislature be MICIIAKLMAS TKUM, 1853. 107 npplied to. They can doclare what the law shall be ; \vc can only de- cide wliat it is. Tliis is a bald question put to the Court — To whom do the Irons not wanted for tlie road belong ? I thinli they belong to the owner of the soil, tliat the i)1aintiff is that owner, and is therefore en- titled to judgment. Bliss, J. Tlic main f|iicslion involved in this case is, whether, un- der our provincial acts, where the laud of an individual is required and is taken for a highway, the land itself, and the whole property in it, is devested out of him ; or, whether a mere easement onl)', a right to use the land ibr a highway for all purjjoses is all that is acquired under the l)roceedings which take place under those acts. If the latter be all that j>asses ii'om the owner ol'tlie soil, theu the fee still remains in him, and he may bring Iresjiass for cutting down the trce.s growing on the land, for removing the earth, gravol or stones, or for any other injury to the land ; and he may also maintain ejectment for it. Goodtitle v. Alker et ul, 1 Burr. WV). This is clearly the law when the owner of the land opeus a street or road through it. lie thereby dedicates it to the pub- lic, so tiir as the ])ublic has occasion for it, which is only a right of pas- sage, but it is not a transfer of the absolute property in the soil. ^iV John Lade vs. Shepherd, 2 8tr. lOOl. It is obvious enough why this fihould be so. When a man thus dedicates a street or way, it is a gift to the public, and he gives only that which is necessary to carry out I'uUy the object of his gift, nor can it with any pretence of reason be ex- tended beyond this. The land itself, the right to the soil, and every enjoyment of it, beyond what is necessary to give the full enjoyment of the right granted, is in no way parted with, and therefore must still re- main in the owner, with all its attendant rights, and the necessary re- medies for the infringement of tliem. But where new roads are with us required, they may be laid out through the lands of an individual with or without his assent, upon payment of a valuation to be made un- der tlic pi'ovisions of our Statutes. A bargain is thus made — a coiu(>ul- sory one, it is true, on the part of the owners — but still there is a pur- chase ett'ectcd, and thereupon tii(! land is taken for the highway. To what extent it is so taken, and of what the owner is thereby divested, depends not therefore u|)on any act of his, but upon the slatules by whii'h it is done, and tli(^ fair meaning and intent ol' iIumu. Nor dy I fee why we should consider what right the owner still retain> in the land under a voluntary dedii;ation uf it for a roinl, while we arc seek- ing for tiic meaning and intent oftlii^ act under which a conipidsory relinipiisluuenl ot it lor this piu'pose is (;lVccled, the two cases being so entirely different iri princi|)le. It m:iy, indeed, be said that the object of the Legislature was solely to have a road niade, and that, therefore^ nothing more than the casement, tlic full enjoyment of tlie right to n>e tr 3' i mm:' tC8 KOCII .;. DAUPIUNEK. the land for a road, was intended to be taken from the owner, but this is just berrglng flic <|iiestion as it appears to me. "We must gather tha intention from t!ie lan»uas;p employed in the statutes. Nor should we be at all justified, 1 conceive, in supposing that notliing more than an enjoyment of tiie road was coiifeniplated. The main public roads in this Province, orijrinally laid out by the Crown, or j'cserved by the Crown out of lands granted by it, left in the Crown the fee in the lands which tiius form the road, and I thinii it myself a wise provision that the riglit to the soil in all public roads should be rather in the Crown than in private individuals, because 1 tiiink that the road itself, and the alglit of the public to the full eujoyniont of it, will thus be best protect- ed and secured. And if I wanted an instance to illustrate the propriety and advantage of sucli an arrangement, tlie present ease may furnish it, for this is an action of trespass by tiui former owner of the laud after it has been taken for a road, against the conmiissiouer of roads, for cut- ting down the trees and applying the proceeds of them, when sold, for the repairing of the road. Xow, 1 can well conceive tiiat the Legisla- ture niiglit wish to tli'vest tiie wiiole right and title to the land, by pur- chase, out of the owner, to jvreveni tiie possibility of such clashing of rigiils. And, at all eveiiis, this would have been a legitimate object ibr tlie Legislature to obtain. Whetlier this was their intention — or what it vr.\~ — must tlieu be galliered from the statutes therncclves. These acts iiave been from tiuu- tu time altered, and their language and phraseology, not vciy precise and clear perhaps in an}-, have varied in funw re-;'ects fiom each ()tb<>r, and wc must look to the wliole, as one lunly of laws 1 11 tlie same subji'ct, to gather the true meaning and inten- tion ol" tlie Lfgi>lal;;r{'. 'J lie act of ! \\. 1, c. GO, 1 Vi: Laws, "11, under which, as the case fctatcf, the ri'ad In i;ue-:iiuii was laid out, dlieeted that three freeholders iliould lay out the road — " w!oo, being made acquainted with the dis- tance tiie same slionld run tliroiigh any person's jirojierty, the nature of tiiC soil and liiipiovenieiits. as also the e.vteiii of fencing necessary to be (liiiic liy reason thereof, sliall proceed lo make a just and equitably va- luation and appraiseiueiit, according to tlie circuinstanees of the case, of the diinmiji's to be jiaid each person through whose land such road shall run, .-p( .living jiarticularly and seperateiy what is to be paid to each |u'oprietor tor daina damn;;e to the owner of the land as they siuill tliink reusoiiabli- for the vrduc of the land, and improveniei.is luaae on th(! siu'i". ;u\d nl^o for uKikinjj; fonces on the sides of such hi;,'li'.vny. And by the 17ili sect, before any C(.in- inissioners of roads sliuli Iji^giii to lay out any new road.-', whereby any charge or expense is to be broiiaht on the Provinee, eiliior for the pur- chase oi im'\o^cd and improvi'd l:;r.'!, or I'nr Miiy .-[uhMji! t!ain;ic"e whieh may be done to the owner of any wn-tei| or iiuinniroved lands, he sh.Tll lay a plan befoi'e the Governor and (.'oiineil, aeeo!np;inied by an esti- mate made by three er('r()bali!e. amount of any spccud daiuii'j' wiiieli it iiuiy be. necessary to pay tor carrying;; such road tbneeiii waste and unimproved iandN, itc., iVe. And no commissioner sliaii eoai'U'Mice v.ork (ill fiirni-!n;d witli an orb-r of the Governor and Ci>un"il. ai:d tiiea In- sli^dl notify all p;'i'.-^ons interesi- ed in the lamls ihat siieb order lew been made, so that ail iiei'e-sary steps may be iMken for vnluiitij. ('(ifreahlji to tlic I2:!i sc are to re- sti'ain this to the ae(piircini.'Mt merely ot' a ri'jlit lo n.-^e tiic laiid d-v a road, v.hen its plain and olivious iiaport is Ilia; ot' an a!).-o!iite jinrclei^c of tb(! laud itself. Tiiis view is strou'dy ceatinued by the iHtli st ctioa, wlii(!b directs •• that wIk.'u I'o coHipeu.-atioii has liicu deiuanded by, or Dade to the owner i'or imid lakeu for sueli ro;i,l, this aci(uie-c"nee c!' thi; owner shall be deemed (( VDluiifari/ y.irrrcii .'. r f.t /in- Ki>i'j for I'vor for .-i public road of all the land tln'ou,a;ii which if shall have been niade." — Hero the language beconn^s still more precise auilstri' the nmking of new ditches and fences on the sides of tiie bigiiways. And (sect. IS) upon payment of the sum so to be awarded and assessed, the interest of the said persons in the Kaiil ground will he forever devested out of (hem, and the said ground siiall be esteemed and taken to be a public highway to all intents and l)ur|)Oscs whatsoever". So that here we see the principle fully car- ried out, of not merely valuing the land and taking an easement or right of way out of it : l)ut the whole inten'^t of t!;;' party is forever devested out of him by a compulsory method, preeiselj' like our own. And while our own Legislature have repeatedly used language which at all events, it must be admitted, is (piite sullieient to etFect the same purpose, if their intent and meaning to do so can be ascertained, I do not know why we should hesitate to ascribe to them the intention, when we see it expressly sanctioned by the English statute : ami indeed I cannot see tJiat the Knglish statute is more clear on t'ds |>oint than our own. The words ol' divesting are more direct, it is true, in the former, but in our own the same cflect and intent are as plain, both [)ositivcly and inferen- tially, to my mind. JJut it is said why take more than is required for the purpose ; and that we must not suppose that the l^egislature could intend to do so. 1 answer ns I iiave iihctdy said, that it is moi-e fit and more consistent, if not absolutely necessary, that the land, the title itself, should be vested in the Crown, and Ih.ii it should purchase what 1 be- lieve is always valiunl and paid for; t'le larn' its"lf. Wiio can tell what trees on it may be, if not now, at leas; h,'re;>/ter, n^quired for the road, or found to be obstructions on it, or tho dijuii of soil which it may be necessary to remove. ^Viiat jiossible i.iterest, therefore, can there be any l()nger in the surface, or in the verj soil itself, in the owner, that he should continue to Imld the title ? On the other hand, the continual me of the trees, soil, gravel, stones, the protection of the road — and that IMAGE EVALUATION TEST TARGET (MT-3) fe 1.0 I.I 1.25 U£|ZB ■ 4.0 US 1^ ™ 13.6 ^^« It! 1 2.0 UWu ^U4 Pk)tographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS(» (716) •72-4503 #.1(^^ 4> /A" 4^ i '^^ tV 17i KOCH f. DAUPIIlNEi:. even against tlie very fiiljoining owner — I'equire tluit there should be no doubt that the hmJ itsolf is vested in the Crown for the public interest. The possible contingenry is, however, urged, tliat there m:iy be mines below the soil, whieh ought not to be taken from the owner. There may be, as probably, the same beneath the olil road which is given up to him in fee, and any mines in it would therefore vest in him. But the Legislature has not thought it advisable to guard against such a re- mote contingency. In England they have. For the statute .ilready mentioned, after declaring that tlio intercjit of the party in the grouny parol cviilcnoc. In order to cnrro't n\\ error in tl\c (Icsciipiive pnn of a crunt ti.v parol evidence, the evidence musi be such as to leave no doubt of tliu intention of tliu (grantor. Ejectment, tried at Antigonishc, in June Term 1802, before Dodd, J. Verdict for plainlifl", subject to the opinion of the Court upon tho evi- dence wliich wivs voluminous. Ritchie for defendant opens rule nisi to set aside verdict, and contends First, Tliat the grant to Mear/her, under wlioin plaintiff claims, docs not include the locus, but would carry plaintiff's land to the southward of the locus, and was so laid out by the original survey at the time tho grant passed. Sccomlly, The defendant's possession, which undoubtedly includes tho hens, was surveyed lirst and settled first under a license of occupation from the Crown, although not granted until after the passing o^^ Meagher's grant. i Thirdhj, The plaintiff's grantor, Fcnnell, was not in possession of the land when he executed the deed to plaintiff, but another party was in adverse possession. Fourthly, Tl.c ambiguity in grant to Meagher, and inconsistency with plan annexed, were fatal. R. II ■lilurtoii'm shewing cause stated, that in consequence of the diflicnltj- in reconciling tlio grant and the plan annexed, he had exam- ined all the plans, in the Surveyor General's office, of lands in the dis- trict of Tracailie, where the locus is situate, and found the same appa- rent inconsisicncy in them all. 15ut upon making a plan according to llic words of llie grant, and holding it up inversely to the light, the two plans were found to correspond. lie contended that the surveyor, who liad made the plan annexe(l to tho grant, had traced it, not from tho face, but from tlie back of tlie original draught, and had thus transposed '' East and West, leaving North and South as they were. That this ex- jjlained tlie dilllculty as to the starting point, " commencing at the S. E. corner of lands granted or surveyed for John Smith, the elder, on tiic road leading to Tracadie", whereas the S. E. corner is not found on that roal. Of this land so indefinitely described as " granted or surveyed", no grant or survey is to be found, and it still remains wild and unclaim- ed. Hence the plan annexed to Meagher's grant is the first that was made of lands in Tracadie ; and, as it determined tlie situation of Smith's land, the position of the latter was necessarily changed by its inversion. Upon this hypothesis, which he contended was supported by the evi- dence, he urged that the inconsistency (which was not apparent upon MICHAELMAS TERM, 1853. 179 rcai. CROWN OFFICERS April 5. Memorandusf. The Honorable William Younrf, Q. C, and the Honorable William A. Henry, Q. C. being present, the former present- ed to the Court two commissions under the provincial seal at arms, bear- ing date respectively the third day of April, instant, appointing Mr. Tonng to bo the Attorney General, and Mr, Henry to be Solicitor General of the Province, until Her Blajcsty's pleasure should be known. The Court ordered the commissions to be recorded. The Honorable Attorney General also presented to the Court a commission under the great seal of the Province, appointing the Honora- ble James Boyle Uniacke to be one of Her Majesty's Counsel, learned in the law, for this Province, with priority over Queen's Counsel appoint- ed since the 19th day of February 1818, being the date of his commis- sion as Attorney General. Halliburton, C. J. Although I have received no ofRcial informa- tion of the intention to confer this appointment, it is in accordance with the opinion formerly intimated by the Court respecting gentlemen who have held the important ofllce of Attorney General, and therefore there will be no difficulty in having the commission recorded. The several commissions were therefore recorded in the Court. EASTER TERM, 1854. 133 WILSON V. LYLE. April 4. Sutherland moves for a commission in n cause in which, as it appear^ cd by the uffldavit, there had been no appearance or plea. The Court liesitated in granting the rule on this account, but upon Sutherland'i statement that it would be necessary to obtain the evidence in order to assess the damages, granted the rule, observing that this necessity should have appeared in the affldavit; Rule granted. STEELE V. FIFR April 4, Smith moves for rule nisi for change of venue to Amherst, the cause of action having arisen in Parrsboro'. Halliburton, C. J. You arc entitled to a rule absolute in accord- ance with the practice in the King's Bench. ttule absolute. SKINNER V. LANE. April 4. Steele moves for a jury in an appeal cause, upon the ground that the cause turned on the question of fraud. Rule granted. SCOTT V. ANGUS. April 5. daTdrSances""' '"" '"°"°"'' "P""''"^' ""' ^°''" ^°' «'•£"'"<'"'«. "^ei't in spo- Tlie Court will not grant a i;ule nisi to compel a slieriff to pav over monies ooL hn n«rH..''f '"',•"•.""''"• ^h«r« "'<"7' "^^ Conflicting claims to ll.i funds, but willloavo the parties to iheir remedy by action. Jiitchie moves upon affidavits for a nile nisi to compel a sherifT to re- turn an execution, and also to pay over the proceeds in his hands under the execution to a creditor, upon grounds disclosed in the affidavits. HALLinuRTON, C. J. This motion ought to have been made yester- day, as it is vary inconvenient for us to hear motions on one of the days 5 184 PrrELAN AND OTIIEUf- i-. PIIELAN. Hf set down for arguments. Wc cannot hear the motion to-day, unless yoa can explain why it was not moved yesterday. Ritchie cxplaned that the delay had arisen from the mail not having arrived. AAer hearing the r.flidavits, CouBT. You are asking us for a rule to try a right between con- flicting creditors, wliich must be tried in a different way. Wo can only give you a rule to return the execution. Rule absolute accordingly. PHELAN AND OTHERS v. PHELAN. April 5. The running of one of the side lines of a larcc tract to which tlie plaintiff had no title, but of a purtof whidt he was in actual occupation, held a Eufiicient act of pes- session to enable a Jury, with other evidence, to infer a constructive possession of the whole tract. Where the plaintiff and defendant in ejectment resided tof^ether »?on the land, and defendant had no occupation separate! and distinct from that of the plaintiff, proof of demand of possession previous to action brought held not necessary. '".e occupation by a son of a part of his father's land will be deemed, in the abscnco uf evidence tu the contrary, us a permissive occupation. This was an action of ejectment to recover 500 acres of land at Pope's Harbor, brouglit by tlie kssee of Thomas Phalen and others against the widow of William Phalen, son of one of the lessors of the plaintiff. At the trial in the .sittings after Michaelmas Term, title was estab- lished in the plaintiff to certain lands under a grant to Colonel Creighton in 1783, to which exception was taken that the grant appeared to be from O'ofcrnor Parr, and was not in the name of the Crown. This ob- jection was overruled by Bliss, J. who presided. This objection was niiiuited by tlie Court, bnt not afterwards adverted to. It a])pciU'ed by tlie minutes of trial that the plaintiff diil not succeed in proving tiiat the land in question was contained in this grant under whicii he claimed, but the evidence of the surveyors rather went to shew that it formed part of a grant to one Harris, which had p.assed some ten years prior to the Creighton grant, the plaintiff having taken possession of the wrong land by niistak ■. Tiic plaintiff therefore failed in proving his title to the ptirticuhir hind claimed in this action, but he relied upon tcsliinony tiiat he had occupied the hmd in dispute as his own property for about twenty-five or twenty-seven years, several acres of it being, during tliat period, in a .state of cultivation, and tiie rest in a wild state. During this period, however, and about fourteen or fifteen years before the trial, Pfiakii's boii, tlie husband of the defendant, erected a dwelling EASTER TERM, 1854. 185 liouse on a part of tlie land, also without title, and resided in it until his death about three years previous to the trial, but did not make any clear- ing. During his possession of the dwelling, he followed the sea in con- nexion with his father. The father resided with the widow after his son's decease, and about two years before the trial, sold the whole land to one liichards — the widow and children of William being still in pos- session of the dwelling house built by him. This action was brought on behalf of Richards against the widow to recover possession. It was proved at the trial that Thomas Phalen had resided at Pope's Harbor for iibout thirty years, and until within about two years. That he was in possession and resided on the land twenty-fi\ e years ago ; that twentv- four years ago he resided on the land which had then the appearance of an old farm which had been settled fifteen or twenty years, and was then known as Phalen's farm, and that he continued the same possession to the period of his son's death, and subsequently; that ho had had his possession partially surveyed in ISiJG, and had received a conveyance of the 500 acres claimed in 1811. The learned judge in charging the jury considered that the evidenrc of possession in Thomas Phahn was sullicient to enable the jury to find in his favor, upon that ground, for the whole premises as he was in pos- session upwards of twenty five years claiming the whole lot, as appear- ed by the plans and surveys under which he held, as well as the con- veyance to him from the executors of the grantee, in 1811. These do- cuments were sufficient to give a character to his possession as claiming the whole land, and at the least he was entitled to recover the part of winch he had had actual possession. Tiie learned judge considered that if a mere stranger had entered upon this land as the defendant's hus- band had done, and occupied a part until his death, it would not have put an end to the phiintiifs' right to recov(?r upon the possession whicii he had previously held ; but it appeared to him that there was a wide distinction between a stranger and a son. ■ That the entry and posses- sion of the former in such a case mv^\i prima facie be considered as ad- verse to the original claimant and occupiers, while the case of a sou oe- cupymg nc.ir his father a portion of the land claimed by the father, was rather to bo deemed, if nothing appeared to the contrary, as & permis- sive occupation under his tiitluir, and not adverse to )iis possession. Tlie jury found for tlie pbiintilV for tl!(> wiiole land. Sutherland now moves to make absolute a ride nisi to set aside this verdict and grant a new trial, on the following grounds — 1st. That no demand of possession had be ". proved. 2nd. The plaintiff' had not established a sufficient possession to ena- ble him to defend against a party shewing title, much less to enable him (o recocer as a plaintitK 18C PHALKN AND OTHERS v. PIIALEN. JJrd. riaintlflT's mere prior possession not suilicient to found a pre- sumption of title, as tlio presumption was rebutted by evidence that tlw title was not in fact in plaintiff. 4tli. Misdirection in instructing the jury that plaintiff was entitled to recover the whole land, and not merely the live acres which were en- closed and cultivated by him. It was clear that the defendant's husband had entered, under his fa- ther, the lessor of plaintiff, twelve or fourteen years ago, that he had continued that occupation until his death, and that his widow had, after his death, conliimed tlie same occupation until the present time. AVh.it- evcr may have been the original agreement between the parties is not material, as it is the letting into possession which makes tUe possession lawful. Graif v. Staiiion, 1 J\I. and W. 700. And there are numerous cases to shew that where the possession is lawful the possessor cannot be ejected without a demand of jjossession. Selwyn's N. P., last cd. 708 ; i;{ Fast. 210 ; 1 Wills. 177 ; 2 New Cases uO;} ; 2 Esp. K. 717 ; 10 E. 201 ; 1 15. and C. 148 ; 4 T. U. 680. Even if he had title by possession he abandoned it when he left the property. The evidence here is clearly insutticient to shew title by [tossession in plaintiff, as against the heirs ol' Ham's for the whole tract, and therefore he cannot recover lor the wliK.xi;it,vi, follows — If the actual occupafionof a few i)i res in front of a large tract of wilderness land will give title to a par- ty wlio lioes into podsessu)n without any deed or documentary title to de- tine and limit his possession, it is more than has ever been decided in the wildest case either in England or the United States. Previous then to 1841, the plaintiff had no constructive jiossession of more than he ac- tually occupied, and since 1841 he had not a constructive possession of ihii whole, beci.u^e when he got t,he deed his son, as may be fairly in- EASTEU TEllM, 18r,4. 187 furred from the evidence, was in the ]iosscB^ion of n pnrt on which he had made pcrniiinent improvements. The question is not whetlier de- fendant has title. AVe do not claim this. But is it in the plaintiff?— He is seeking to recover the wliole, from a party whom he by his action admits to lie in possession of the whole. lie must recover on the strength of his own title, and not on the weakness of the defendant's. — And his case is not strengthened by the fact that he is taking advan- tage of defendunt's neglect in not obtaining a deed, to defraud him of his property. I can Ihid no case of constructive possession in which the party claiming had not a paper title to sustain his possession. At least, if the possession of the son and his widow was permissive, the hitter was entitled to a demand of possession. The protection of this principle is not confined to a vendee, but is extended to any party who is permitted to go into possession as owner, and cultivates and im- proves as such. Koscoe N. P. 488. This was also decided in this Court in AfcKinnon v. McDonald 1 James' N. S. Rep. 10. And this advantage is but reasonable, as it gives a party an opportunity of de- cidin;^ btii'oic action brought whether he will defend or not. This is a 8>ronger case than McKinnon v. McDonald, as here a descent has been cast, and the widow, who is in possession for and defends in behalf of the children, is entitled to the benefit of this circumstance. J. W. Jo/inslon, .lunr., in leply contended that a demand of possession is necessary only where the defendant has gone into possession under an agreement to purchase or lease. Ad. Ej. 121. Even a mortgagee may treat mortgagor as a tenant at will or a trespasser at his option. As for the sufficiency of possession, that is a question for the jury ami has been conclusively settled by them. Cruiso Dig. 273. The posses- sion of the father and son are one and the same, and if the son were a tenant at will any thing which puts an end to the tenancy makes defen- dant a trespasser, and he may be ejected without notice. 1 M. and M. 346. II.vLi.iiii'RTON, C. J. We have not much doubt as to the possession, and would prefer hearing you principally as to the necessity of demand of possession. Johnston, Q. C. There is no tenancy at will in this case, as the te- nancy of the son was the tenancy of the father. They conducted their business together, and after the son's death we find the old man residing with the widow, his own house having previously become delapidated. The inference is very strong from the position of the parties, and the facts proved that he must have also resided with the son during his life- time. In McKinnon v. McDonald there was strong evidence of fraud on the part of the plaintiff, and it was proved that he assisted actively m 188 PIIALEN AND OTHERS r. PIIALEN. in putting the (Ict'enduut upon the land, as owner. In thnt case there was a (ILstinct occupation in the defendant, but in this there is no proof of a possession in the son, of a distinct portion of the land, nor of any occupancy whatever, distinct fi-om that of the father. The possession of the son therefore was the possession of the father, and may not only be connected with his previous occupation to make title, but prevents the necessity of proof of a demand of possession. Besides, in this case the defendant claims not only the land on' which the house stands, but the whole 500 acres. The statute requires a defendant to specify in the rule the portion for which he defends, and admitting all that has been urged in his behalf, the plamtiff is clearly entitled to recover all but the dwelling house, which is the only part in actual possession of defendant. T JE CouuT sto > Johnston. « hi 11 I ^"'ii |!i|;':: li*i IlAi.LiBrRTOX, C. J. As the plaintiff resided with the defendant on the land and no distinct possession is proved, the legal possession is in tlie jiiirly wlio has the right. I cannot see what right the widow can have. Slio does not come claiming dower, but claims the whole 500 acres. The plaintiff is distinctly proved to have been in possession of this land and living on it t^^enty-f^vo years ago, and the evidence of se- veral of the witnesses leads to a very strong inference, which is not con- troverted by any of the evidence, tiiat he was in possession for a consi- derably longer period. Although plaintiff had no deed previous to 1841, we find that he had one of the side lines of this property run out seven- teen years ago. In 18 U he obtains a deed from parties supposing themselves to be entitled. Soon afterwards his son builds a house on the land. He was a nslierniun and did not cultivate nor make any im- provement. He had no possession of any distinct portion. Something has been said of his having purchased and paid tor 100 acres, but there is no proof whatevrr of this. Wiiatevcr possession the son had was jointly with the father, and instead of defeating admits and strengthens the plaintiff's claim, and his possession, being previous, entitles him to re- cover. The widow has had no separate occupancy, and therefore is not fntitlcd to a demand before action brought. As to a parfy obtaining tith; subsequently to the commencement of his occupancy, I will not sa}' tliat it would not extend the constructive pos- session so as to cover the previous occupancy. Upon this point I give no opinion. I consider that tiic rule should be discharged. Bliss, J. I do not see that the jury could have any difficulty in ar- riving- al the conclusion from the evidence that the plaintiff was in pos- fCfio',. ior thirty years. Kent ran one of the lines back to the rear in 183^), but I think from the evidence that he must have run this line pre- viously. J. consider this an act of possession of the whole of lot No. 2, EASTER TERM, 1854. 189 being the land described in the consent rule, and that upon this posses- sion the plaintiff could maintain ejectment against any party not claim- ing title. As to the demand of possession, William Phalen and his widow have rot been proved to have had possession of a foot of land except wlu'.' the house stood upon. Admitting him to have been a tenant at will o* the house, the party having possession of the whole lot sells the land, in eluding what is covered by the house. This sale is a sufficient sever- ance of the tenancy. He is shewn to have resided with the widow after his son's death, and having thus resumed possession of the house, he sells the whole property to Richards, who now seeks for possession, and I think he is entitled to recover it in this action. "With regard to the main portion of the land, the widow had no pos- session whatever, and no ground to defend the action. If she claimed to be tenant at will of a part, she should have confined her defence to that part. Not having done so, she has indicated an intention to set up an adverse title of the whole property. Halibcuton, J. and Dodd, J. concur. DesBarues, J. The only difficulty I have had was as to the de- mand of possession, and this is obviated by the facts that the widow had no distinct possession f xcept of the dwelling house, and that Pha- len, senior, by residing with her resumed possession of that portion of the property. Role discharged. FRASER V. CAMERON. April 7. A new trial will seldom be r. anted upon tlie pround of the verdict being acainst evidence, where the verdict has any ovirience ro support it, although 'M e'-id-""* strongly preponderates against It, provided the Judge who iries ihe cause is notdij- satisfied with the finding of the jiirv. In fixing the boundaries of land" >hc.st regnrd is to he had to liatural bonn daiics, lines actually run, and corners ;k lually iiuii IuhI, in preference to stiiienicnl-' o course, distance, or quantity of li'nd contained in the deseriptivc part ot ilir r" - vcyances. This was an action of ejectment (i-le.l ;'.t Pi'.tou in Octolt-r "^'t.-. before Buss, J. to recover a strip of land situate betr/ecsi the i. . ,i the plaintiff and defendant at New Ghisgow, ttnd claimed by each i;., ,• as part of their respective lots. Verdict for defendant. In Michaelmas Term the present Attorney General moved to mal •$ absolute a rule for a new irial in this cause, which was opposed by 1/ Johnston for defendant. The arguments of counsel were cluefly as to 190 FRASKR r. CAMERON. ii' ^ i the effect of the evidence, and aro sufiiciently explained by the opinions of the Court in delivering judgment. 1 1- M IIalmbuuton, C. J. I cannot eea any pretence for disturbing the verdict. Had it been for the plaintiff under such evidence, I should have been much surprised. An ejectment brought under sucli circum- stances 1^'ould require proof of the plaintiff's title that would remove every possibility of doubt a* to his right to recover. So far from that being the case, had the verdict been in his favor, I think it would scarce* ly be sustained. What are the facts ? It appears that about thirty years before this action was brought, ono Forbes was the owner of a piece of land near to New Glasgow, and em- ployed Wiiliam McKay to lay it off into four building lots. These lots were designed to be each fifty seven feet nine inches wide, but the wit- ness iaid, "There might have been an inch or two given for good mea- curement tvs we always do." Land in the neighbourhood of the then rising town of New Glasgow was of very different valiio when the sur- vey was made, from what it was when the witness was giving las evi- dence, as we may judge from one of the four lots, No. 1, having been given to him, in part payment for his services, which he sold last year to the plaintiff for £250. The witness states that he put stakes at the four corners of each lot ; that McKenzie, under wliom the defendant claims, purchased and took possession of Lot No. 2 soon after the sur- vey, and built a house soon aAer his purchase, which stood a little off of the stakes in upon McKenzie' s lot. That he had often seen the house and the stakes after the house was built. It was a little to the south of the stakes, and was there when he left the country twenty-five years before the trial. McKenzie's deed from Forbes of Lot No. 2 is dated 4th January 1821. And here we have the plaintiff's own witness, from whom ho derives his title, stating that the defendant, McKenzie, placed his house on No. 2 within the stakes, which the witness set down as the bounda- ries of No. 2, and that it was standing there when he left the country about 1827 or 1828. This witness got his deed of No. 1 on the 8th of August 1822, and says—" I took no other possession of my lot than by the pegs. I left it as I got it. I had no fence on it". Here, then, we find the owners of lots No. 1 and 2 taking possession of their respective lots by a boundary established by the tiien owner of No. 1, under the authority o{ Forbes, from whom they both derive title, and tlie \vitness, who continued to own No. 1 until he sold to the plaintiff in 1853, says : " As far as I know, Jioderict McKenzie continued in undisturbed pos- session of his lot — of whatever he took possession. I never disturbed him or those who held under him until the j^laintiff purchased No. 1, prior to which purchase the defendant, Cameron, who claims under Mc- Kenzit had taken down the old house and put up a new one, as he con- EASTER TERM, 1851. 101 tends, on the lino between one and two — as tlie piuintifT contends, trcs< passing upon No. 1 one and a half or two and a Imlffcet. The ground of the plaintiff's claim is, that measuring from the corner of Kempt Street, from which the witness, McKay, started, to lay off the four lots, No. 1 is deficient two feet three and a half Inches of its width, and that defendant's lot is sixty-one feet six inches wider, when both were de- signed to be fifty-seven feet nine inches. There can be no doubt that this is the fact. But if, as the plaintiff's own witnesses have proved, the lots were staked and laid out by the owner, and sold to the then purchasers by those stakes placed at each of the four corners, and were taken possession of .and held by the purchasers by the boundaries then established, can we at this distant day disturb those boundaries by nice measurement ? Our neighbors are safe guides in questions of this nature, and in Haxoe et. al. v. Bass, 2 Mass. R. 282, Parker, J. observes, " When a party is about purchasing land he naturally estimates its quantity, and of course its value, by the fences which inclose it, or by otlier fixed monuments which mark its boundaries, and he purchases accordingly." And in Pernam v. Wead, 6 Mass. R. 133, Parsons, C. J. said, " With respect to courses, from errors in surveying instruments, variations of the needle, and other causes, different surveyors often dis- agree. The same observations apply to distances, from the inaccuracy of measures, or of the party measuring, and computations aie often er- roneous." Now, whatever may have caused the error, if in point of fact the boundary between one and two was establislied when those lots were originally laid out wiiere the defendant now asserts it to bo, it cannot now be disturbed. The plaintiff's own witness, as already observed, proves that the boundary was then established, and that the purchaser of No. 2 built within his line. The defendant's witnesses confirm this lact in the strongest manner. Alexander Fraser swears that he was present when the stakes were put down by McKay, Forbes, and Dr. Skinner. They were put up at the four corners of tlie lot, and tlie fjnce which he and his brother Thomas (who was also examined) made, was put up by those stakes, and tliat this fence was at all events eighteen inches distant from the house. Thomas says, " After the fence was put up a person could walk between it and the house, to the yard in the rear." Jane McKenzie, the widow of Roderick, who lived from 1823 to 1833 on the premises with her husband, says that the lot was fenced all round in 1823, that she can see no difference between the defendant's present fence and lier husband's, that she saw currant bushes rounil the defendant's fence in the same place that she liad put them as lar as siic could see. It is true that some of the plaintifl "s wilncsscs say they do not re<:ol- lect a fence running all the way to the 2lrecl between the two hon <■•. t02 KRASEU V. CAMERON. f ;' :!! I' If this were of any importance it was for the jury to consider. Forbes, however, one of plaintiff's witnesses, says that No. 2 was fenced all round. But, if there were no fence between the two houses, the inter- val was then used by both as a passage, and used by them scparatehj for the purpose of banking their respective houses. Flndhiy and Evnn MeJJoyiald, who were employed by defendant to dig the foundation for his new house in 1852, both say that by the defendant's direction they kept within the marks of the old posts between the two houses, and that the wall of the new house is not more than fifteen inches to the north- ward of the old. Of the defendant's right, then, to the land on whicli he had built, there was no doubt. The only question was as to the land in the rear. That was left to the jury with directions quite as favorable as the plaintiff could expect, and I should have been much surprised if a verdict had been found in his favor. I think there was abundant evi- dence to satisfy them that those under whom the defendant claims took possession of the whole lot, as he now claims it, upwards of thirty years ago, and that it has been so held ever since. I therefore think that this rule to set aside the verdict should be discharged. Bliss, J. It was only in deference to Mr. Young's standing at the bar that I granted this rule. At the trial I took a view of the evidence more favorable to the plahitiff tliaii the Chief Justice now takes, but there was substantial testimony on both sides. It was jjroperly left to the jury to decide, and I am not surprised at their verdict, nor do I think I would be doing right in disturbing it. IlALiBtKTON, J. concurs. Donn, J. After hearing the argument in this cause I must confess my mind was in favor nf the charge of the learned judge who tried it. I did not then see how he could have submitted the case to the jury in any other manner ; and since then I have seen no reason for changing my ojiinion. If the cl)arge of the learned judge is correct, we have only then to oxamiue the evidence and sec if there is any thing in it to warrant the llndiug of the jury. The rule as to new trials is well understood at the ])rescnt day, ami tlicy are seldom granted where the verdict has any ijvidencc to support it, altliough the evidence strongly preponderates against it, provided tlie Judge who tried the cause is not dissatisfied with tliu verdict. In llic ])rcsont case there can be no doubt that Forbes intended to give to lot Xo. 1 and No. 2 fifty-freven feet nine inches each, fronting on Trovost Slrtet, and iiow tiie mistake has occurred that No. 2 has two ibet three and a hall' inelios more than tliat quantity, and No. 1, two tc"-'t liiree inches and ;i lialfles.-i, I am not prepared to say, — neither is it EASTER TERM, 1854. 193 necossiiry for tlie settlinf; of this case. In the description in the deed of No. 2 fm n Forbes to AfcKeiisie, it commences at tiie S. E. an;»le of No. I. And here I may ask, where was No. 1 at tiiis time, and liow Wiis it to be discovered ? Tiiere was no deed to McKay shcwinj^ that No. 1 was to be fifty-seven feet nine inches exactly from Kempt Street, and at the end of tliat distance No. 2 was to commence. How then was McKenzie to find out tlie S. E. angle of No. 1 ? Tlie only way in my opinion that he could do so, was to discover the sialics or pegs whicli marked the dividing line between the two lots, agreeably to the survey made of them by McKay, and if the defendant is not at present to the northward of these stakes, then the plaintiff cannot maintain his action. The deed to McKay, which was nearly two years after that to Mc- Kenzie, describes lot No. 1 as commencing at tlic N. E. angle of No. 2, and the same precaution is taken in this deed as in that to McKenzie, in not binding the grantor down to exact admeasurement, but on tlie contrary tlie courses and distances mentioned in both deeds arc always followed by the words " more or less," so that if it had turned out that No. 1 had sixty feet between Kempt Street, and No. 2 instead of fifty- seven feet nine inches, as mentioned in tlie deed to McKay, he could not be deprived of the difference, neither can the plaintiff now take from tlie defendant any of the land to the southward of the stakes tiiat make the corner boundaries of his lot, and whicli were put there at the origi- n.al survf-y by McKay, although he should find that No. 1 contains less than fifty-seven feet nine inches. In the construction of a deed as to the intention of the parties to if, the rule to find such intent as stated by Greeuleaf on Evidence, sec. of the dcc^d to Mi'- Kenzie of lot No. "2. The mention of quantity or length of lines, after a certain description of the subject by nicies and bounds, or by other known spccilication, is bill matter of description. Whenever it appears liy the definite bouii(l:irics, or by words of qualilication, as " more or less", or, as " containing by esii- mation" ortlie like, that the statement of the (piantity ol'acres in the land is mere matter ordescrii>tion, and not of the essence of the contract, the buy- 194 FRASER I'. CAMERON. cr lakes tlie risk of the qimntity, if tliere be no intermixture of fraud in the case. 4 Kcnts Com. 4C7. And here the element of fraud cannot be imputed to the defendant, or those under wliom he claims. The deed to McKay contains these worda of qualification mentioned by Kent, and in fact the description of lot No. 1 appears to have been worded expressly to meet any difUcuIty that might arise as respects admeasure- ment upon the different courses, and the quantity of land in the whole lot. It commences at tiie N. E. angle of No. 2, and from thence to run N, sixty W. along the side line of McKenzie's lot, 107 feet 3 inches more or less or until it meets tlie N. W. angle of McKenzie's lot, thence N. 80, E. 57 feet 9 inches more or less or until it comes to the South side of Kempt Street, tlience S. CO E. along the South side of Kempt Street 107 feet 3 inches more or less or until it meets the West side of Provost Street, and from tlience S. 30 W. along the West side of Pro- vost Street, 57 feet 9 inches more or less on until it meets the place of beginning, containing 22 rods and 18 links, be the same more or less. — This description bounds No. 1 on three sides by definite boundaries, and the courses and distances mentioned are not the essence of the contract, and must give place to the definite boundaries. All the plaintiff can claim by the deed to McKay^ is tlie land bounded by Kempt Street on the North, Provost Street on the East, lot No. 2 on the South, and a line running N. 30 E. from the N. W. angle of No. 2 on the West, and whether, witliin these bounilarics, his lot admeasures in width 57 feet 9 inches, or contains 2:.' rods and 18 links, he must take the ri8k,^i..i. it is uniniporlnnt as resp ;cts the present action. As I have already said I think the case was properly submitted to the jury wlien the learned Judge told them that tlie stakes which had been fixed between No. 1 jind 2 as the boundary of the lots, could not now be disturbed, although it gives to No. 2 a greater width than was intended, and if the defend- ant had not erected his present fence or house to the north of the line formed by the stakes, then the verdict should be in his favor. I admit the testimony was conflicting and contradictory upon tlie subject of the house and fence being upon the old line, and consequently just such a (piestion as came within tlio province of the jury to decide, and they tlioiigiit proper to decide in favor of the defendant. Tiiat the evidence on the part of the pliiintifFiM my mind slightly preponderated in his tn- vor I am nol jirepared to deny, but certainly not to that extent which would justify me in disturbing tlic verdict, particularly as I understand the learned .Judge wiio tried tlie cause is not dissatisfied with it. I am tlierefbre of opinion that tlie rule for a new trial should be discharged. DesBaruics, J. The verdict in this case is not such as I would have fomul if I had been a juror, but tlie case Iiaving been properly submit- ted and left to the jury by the learned Judge wlio tri»'d it, and the jury EASTER TERM, IS'il. t9fi luvving, in tlie exercise of tlioir jutlgment, found for the defundnnt upon the evidence, I do nut think tliu uircumatances require the Court to dis- turb it. Rule discharged. CREIGHTON v. UNION MARINE INSURANCE CO. April 7. Under n policy to cover ii vchroI from the " commencement of loading" and the pnoils from "the lonilin^ llicrcol'on bonrd" nt n particular place, tlie risl( will com- muncc at tliu sailing from tluu place, nUliougli the vessel was loaded prior to her ar- rival nt the terminus a quo, provided there is anything to indicate that a prior loading \vii8 intended by the panics to the policy. Permission indorsed on a policy of insurance sub eqncnily to its execution and prior to the commencement of the risk, permiiiing a vessel for an additional premi- um to use a port out of the coiirie of the voya(;c previously insured, includes per- mission to take in cargo at that port, but does not alter the termini of the original voynpe. i'ndcrsuch circumstances the policy and memorandum will bo taken together and receive a reasonable construction, according to the circumstances and course of the voyage. A transaction occurrinj; prior to the arrival of the vessel at the terminus a quo, l)y wliicli her arrival at that terminus was not delayed, nor the risk varied nor inereascd, held not to vitiate the policy, Dissentientcs, Bliss, J. and Dodd, J. Debt on a policy of insurance made in favor of the plaintiffs, Messrs. Creighlon, Wiswell Sf Co., as agents of N. C. McKeen, by tlie Union Marine Insurance Company of Halifax, N. S., and covering " one hun- dred pounds on the schooner ' Eleanor,' and a further sum of four hun- dred and fifty pounds on property laden on board the same vessel on a voyage at and fiom the Strtiit of Canso to Halifax, beginning the ad- venture upon the said vessel from and immediately following her com- mencement of loading, and upon property from the loading thereof on board." This policy was dated the 22nd day of November, and on the 11th of December the following endorsement was, at the instance of the plain- tiffs, made upon the policy. "The risk under this policy is hereby continued, with leave to use Port Hood, at which place she was represented to be on the 7th De- cember, 18i52, waiting a wind. " Additional premium on £550 at twenty shillings per cent. £5 10s. " Halifax, 11th December, 1852." The first count of the dechiration alleged that the vessel, with the property on board on the llth December, sailed from Port Ilood for the Strait of Canso on her way to Halifax, and from thence sailed for Ha- lifax, and while on the said voyage from the Strait of Canso to Halifax, being the voyage mentioned in the policy, the vessel and cargo were lost. l.ttJ (JIIEKJIITON r. UNION MARINK INSURANCK CO. Tlio ilefcndiint's fourth pica to tlio first count iilln;T(.il tlmt " wliilo the HftiJ vessel was ri'|iresentc(l to ho ivt I'ort Hood waiting ii wind to wit on Ihn tenth ilay of Di^ccmbcr in the ycnr Ia^ fact, it is expressly proved tliat there Wiis no unnecessary or avoidable delay after that period. PhVUps also lays it down that a temporary and short departure from a voyage, though it suspends the liability, does not defeat the insuraiii,^, which is restored by the vessel being replaced in the position which slie had previously occupied. In this ease there is no pretence of fraud, \o&.-, iiieiuu eiiiemc, of deliiy 2(»0 CREIGIITON r. UNION MARINE INSURANCE CO. to the voyage. There was no deviation, the risk not having comnien- ccil, tor the risk must commence before there can be a deviation. 1 I'hill. Ins. 558. There v;as no additional delay in the commencement of the risk, nor any, even the slightest, variation from it. A change of risk is the real ground of discharge in cases of deviation. 4 B. and C. 539 ; 1 Camp. 421 ; 1 Arn. .348, 397. I' ! I Ritchie, contra. Tlic voyage insured under tliis policy was evidently intended to be an immediate voyage from the Strait of Canso to Hali- fax. It was to commence upon the vessel " immediately following her commencement of loading," and upon the cargo "upMi the loading there- of on board.'' The lending intended by the policy was therefore a load- ing at tlie Strait of Canso, and no cai^o would have been covered by it except such as sliould be put on board at the Strait of Canso. But for the memorandum the policy never would have attached at all as the property was loaded at Margarce and Mabou — diiferent places altogether from the Strait of Canso. Tlie insured first makes a deviation, and then to get rid of the difficulty without a new insurance, he pays a small ad- ditional premium and obtains this memorandum on his policy. It is said that if it were not for the memorandum there would have been no ditfi- culty, but only for the memor.indum thei-^ would have been no risk at nil. Were the risk by the policy to commence at the Strait, this me- morandum would have been wholly unnecessary, but it was desired that the property should be insured from Port Hood to the Strait, and it was for tills additional risk tliat the additional I'remium of one per cent, was paid, and this was the voy.age insured by the memorandum, with the additional understanding tliat the vessel was at Port Hood on the 7th waiting a wind. Being so insured she went back, out of her voyage, to jVIabon on the lOtli December. Even admitting that there was no in- cvcust^ of risk in this proceeding, tliere was at least a change of risk. It is not tlio increase or decrease, but the change of risk, although it may even be a diminulion, that causes any deviation to be fatal to the policy. Permissiou w:i.: given by the memo andum to use Port Hood, \\\w\\ is an oi)en harbor. But the harbor of Mabou is widely different, as it is a 'tar harbor, and tliorefore exceedingly diingerous so late in the Kcason as the mouth of December. It is clear also tliat if the wind was fair i'or the vessel to go to IMaliou, the same wind would have enabled her to reacli the Strait of Canso. As the risk commenced on the 7th of Decciulier, any deviation made subscfiuently would be sufficient to de- feat tiie policy. Cites 3 Kent's Com., last ed., 389-90. Coppin v. Neivburt/jmrl Ins. Co., '.) Jla^s. Rep. •\2i'<. In wiiich case it is said that it is of no consc- 'IHOihm; wlK'llicr the deviation be one mile or one hundred. In 7 Cranch U. oK, a vessel uiuchin;;! at a port wiiilc tlierc traded for live stock,.and EASTER TERM, 185 1. 201 111 is was liekl a deviation. Tiic cases cited on the other side arc all I'learly distinguishable, as they were all on trading voyages, in which the principle is entirely ditTcrent. In Smith's Merc. Law, lasted., 330, it is stated that a deviation is a departure from the due course of the voyage for any, even the shortest time. This alone in a few lines meets almost all that has been advanced. In 1 Arnauld 3G2, it is laid down that the directions of the policy must be followed with the most scrupulous exactness. Cites Elliot v. Wilson, 7 Brown Pari, ca- ses, loO. Whatever may be the hardship in this suit it must be decided upon the principles of law, as it will be a guide in the transaction of business in future. The same strictness applies to the place of loading. She must load at the port named in the policy and no other. 1 Am. 124—5. And the policy will not attach on any other goods than t'lose loaded at that port. And the next case cited in Arnould goes still further, for it ap- jiears that it has been held in the United States that this would be the case " even though it should plainly appear from extrin?ic evidence that the underwriters knew perfectly that the goods had in fact been loaded on board, prior to the ship's arrival at the place so specilicd in tiic poli- cy as the terminus a quo of the voyage, and that the assurrnd ctVoctcrl the insurance with the intention of protecting the gool^ so loaded else- where. Tlie case of .S/;tV4. SOS so to Halifax, by striking on a ledge in thick weather on tlie 31st of De- cember, 1H52, An action against the underwriters was brought on the policy, and tried before Bliss, J. in Trinity Term, 1853. When a ver- dict was found by consent for the plaintiff for £550, with interest, sub- ject to the opinion of the Court upon a motion for a nonsuit made ))y de- fendant's counsel upon two grounds : 1st, Deviation ; 2nd, That the goods were not laden on board at the Strait of CanSo, the terminus a qtto of the voyage, but were laden on board previous to her arrival there. — I shall begin with the second objection, which was first taken in the case of Spitta V. Woodman, 2 Taunt 416. In that case goods were insured at and from Gottenburg to the ship's port of discharge in the Baltic, be- ginning the said adventure (as in this case) upon the said goods from the loading thereof on board the said ship, without saying where. The goods insured were laden on board in London, from whence she sailed to Gottenburg, and, without landing any part of the cargo, sailed to Pil- lau Roads, where she was captured. It appeared that the defendant was well aware that the goods insured were the same that had been shipped at London, having himself been an insurer on them from thenco to Gottenburg. But still the Court of Common Pleas, where Mansfield, C. J. then presided, held that, under the words of the policy, the plain- tiff could not recover. A very solid reason is given for this decision in a note of this case, 16 East 180, where it is said, "The very port of loading, when discovered, may in many cases decide the question of prize or not." That reason does not now exist, and I am at a loss to discover what cause an underwriter has to complain, if a vessel, so insured, ar« rives at the terminus a quo, with the goods insured already laden on board, instead of remaining there at his risk during the whole time that she is receiving her cargo. It is true that Lord Ellenborough said, in Mellish V. Allnutt, 2 M. and S. 110, " As far as general reasoning and convenience may govern our decision, we must suppose that the making a policy to commence from the loading at a particular port is done in or- der to exclude the inconvenience of having to determine whether a prior damage may not have arisen to tlie goods before the commencement of tlie risk intended to be insured." But when we consHer that in the usual course of business underwriters do not superintend the shipment of goods, either by agents or personally, and that they generally reside at a dis- tance from where such shipments are made, can we suppose that they can derive sufficient advantage from this to counterbalance the risk in- curred during the whole period of the lading. It is useless, however, to reason upon it. Spitta v. Woodman is still law, although some cutting remarks have been made upon it. In Gladstone v. Clai/, 1 M. and S. 424, Bayley, J. in alluding to it and to cases decided under it said, " In the former cases the Court was tied down by the express words of the policy, contrary to the intention of tlie parties, for in some of them the 204 CliKKJIITON r. UNION ISFAIIINK INSrUANCK CO. underwriters kiunv porftH-tly well that it wji.^ tlie. olijcct of tiu! assured fo load tlie Roods hufore tlie coimnenceinent of I ho risk." And in /Ml V. //olisoii, It) l'',ast 2i;f, Lord l''dh'nl(oroiij;h said, "A very strict, and certainly a eoustruetion not to be favored, and still less to be cxleiideil, was adopted in the ease of Spillti v. Wuudiintn, where it was holden that words be, and particularly where it is ev ideal that the words which have occasion- 8 208 CREIGIITON r. UNION MARINE INSURANCE CO. eil the dilFiculty were introduced without any precise instructions, and where that construction would deprive the plaintiiT of n chtim founded in justice, and establish a defence, which, under all the circumstances of the case, I cannot but consider unwarrantable. ' i| liii:^' Bliss, J. Tlie written memorandum indorsed upon this policy dis- tinguishes it certainly to some extent from all others of the same class, and if there be any diinculty in the case, it arises, I think, altogether from this circumstance. Apart from this — if the case stood upon tho policy alone — there would not, as I conceive, be room for a doubt. Tho proper course then, it appears to me, will be to consider the subject as it stood under the policy, before the subsequent memorandum indorsed on it was made ; and then, the effect of that memorandum upon the cose. The voyage insured by the policy is from tho Strait of Canso to Hali- fax, and the risk is thereby made to begin on the vessel from or immedi- ately following her commencement of loading ; and on the property, from the loading thereof on board. The construction which these words have received is, that tiie loading must be intended to be at the place which is the commencement or starting point of the voyage insured. And where the policy itself contains no other expression from which it can be col- lected that a loading elsewhere was ;atcnded, or that goods laden on board previous to the vessel's arrival at this terminus a quo of the voy- age insured were meant to be covered by tho policy, it will not attach on such goods. The case of Spida v. Woodman, 2 Taunt 41 G ; Langhorn V. Hardy, 4 Taunt 028 ; Millcsh v. Alhmtt, 2 M. and S. 106 ; and Eickman v. Carstain, 5 B. and Ad. C31 ; with others, most fully establish this point. The letter from McKeen of 12th of November, 1852, which was ex- hibited to the underwriters when application was made to them to ef- fect this policy, lias been referred to by the plaintiffs' counsel to shew tliat it was intended that the vessel should be loaded upon her arrival at the Strait of Canso ; and that the i)olicy should cover such cargo, though the risk was not to commence till the vessel arrived at the Strait on her intended voyage. I niiikc no doubt that such was the intention of the owner, and it is, therefore, much to be regretted that he had not requir- ed and obtained a policy in conformity with these intentions. I cannot, however, say that this intention on his part, which is now plain enough to be discovered, was known and understood by the defendants. It would be giving a more enlarged and comprehensive meaning to that letter than I am able to collect from it, to say that it conveyed to the underwriters the infornuUion that the owner intended to load his vessel before her arrival at the Strait of Canso, or elsewhere than at the Strait. Nor would the course of trade necessarily lead them to that conclusion, '' ■ '' ''t that was not unusual, yet there are other placed within the KASTER TERM, 1851. 209 Strait at wliicli, as it appears, vessels also receive tlieir cargoes. But however this may be, the intention of the owner to this effect, and the knowledge of it by the underwriters, cannot contract the language of a policy like this, unless the policy itself contains something further to warrant a construction more favorable to the defendant. And it is not pretended that in this policy any thing is found to modify tho construc- tion of it. In the case of Spitta v. Woodman, 2 Taunt 41 C, the policy was on goods at and from Gottenburgh to tho port of discharge in the Baltic, " beginning the adventure on the said goods from the loading thereof on board the said ship," just as it is in this policy. The ship had sailed from London to Gottenburgh, with the same goods with which she proceeded on from Gottenburgh, when she was captured : and tho same underwriter had insured the goods on the voyage from London, and knew that the policy in question was intended to continue that in- surance on the goods from Gottenburgh. A stronger case of intention and knowledge cannot exist, but it was held that this, not appearing on the policy, could not control the express words of the policy. And tho goods not having been unloaded at Gottenburgh, the policy did not at- tach on them. In Jkll v. Hohson, 16 East 240, the policy itself stated it was made "in continuation of former policies," and thus clearly shew- ed that goods previously lo.aded were intended to be insured. I may remark tliat in the United States they appear to adhere very strictly to the rule. In Richnan v. Carstairs, 5 B. and Ad. 002, Lord Dcnman regretted being obliged to come to a similar decision, " because," ho says, " it appears very likely that the assured inten\vev»?r, they have used words wiiich will not, we think, etrectiiate tliut iiilen- tion." And he adds that which is indeed a well known general rule, " The question in this and other case" of construction of wriit(!ii instru- ments, is not what was the intention of the j)arties, but what is the meaning of the words they have used." The general rule on this .sub- ject is thus stated in 1 Arn. Ins. 418, " It has been decisively establish- ed, and is now in fact a familiar principle in our law, that wIkmh; an in- surance is effected on goods for a voyage at and from a spcMtitieil termi- nus a quo named in the policy, and the risk is expressed to begin from the loading thereof on board the ship in the coninion form, the policy will only attach on goods loaded on board at the very place named as the terminus a quo, and this, though it should plainly appear from ex- trinsic evidence that the underwriters know perfectly that the good^ had in fact been loaded on board, prior to the ship's arrival at the place so specified in the policy as the terminus a quo of the voyage, and that the assured effected the insurance with the intention ot protecting the goods so loaded elsewhere." The cargo then of this vessel, having been loaded on board prior to Ii:' nil III' Mi i 210 CUKKillTON r. UNION MARINIO INSIMIANOI': CO. Iicr nrrival nt tlic Strait of Cimso, cimnot iiiulor those aiitliorilios beco- vorud by this policy. Nor can llii! policy altiich any moruon the vosael tliaii on tbu j^oods. Tlicy Htand in Ihi; ntxma pi'cilicmncnl. Kor as the risk oil liio vcsHfl is also on a voyn^c fVoni (lie Strait of (.'aiis(», ami to lic'gin from or iimiipdiately foilowin)^ tliu (!oinin(!ncoinciit of tlui luadiiig, wliicli iiipaiis a loading at Canso, the spccilicd voyaj^o on the ship was nnvcr begun, and the policy consequently never attached. IIow then does the inemoranduiu, afterwards indorsed on the policy, niter this? In my opinion not at all. It cannot, 1 think, be contended for a moment that tlie construction of an instrument can be varied by any thing wliich takes place subsecpientiy. Another agreement may bo made by which the terms of the |)olicy are in some way changed, but that will be the substitution of anolher policy in its place. Hut if the policy is left to stand, it must stand wilh its original meaning. There cannot be two constructions given to tht; same instrument at two diiler- ent times. If, indeed, there were any thing on tiie face of the policy which created a doubt as to the general construction of tlicsc words be- ing applicable to it, tlusn the subsequent memorandum might have much weight, not however ns altering what was before established, but as explaining what had be>!n left ambiguous. JJut the terms used in this policy are, as v <", have seen, of a certain and well ascertained meaning, and admit of no doubt. And the meimn-aiidum, therefore, can have no operation upon the construction of it. It may, however, be said that a contract is made by this means, that we arc now to consider it as a poli- cy in its original terms indeetl, but, wilh this new clause, the leave to use Port Hood incorporated wilh or added to if. We must, however, bear in niiiul tliaf tliis is not tlic case ot'ajiolicy wliich has in it a clause authorising iIk; assured to use Port Hood. If that were the case, it iniglil possibly be alli'ged, from tin; very circiiiustance of the necessity ot'sucli a cliiiisi' being foreseen, and llie leave jn'ovided for by the poli- cy befercllie voyiiuce was begun, thai a voyage was contemplated which would lake (lie vesscd past that port, and so the inferenoe be tlrawii that a loading before lier arrival at the Strait was intended to l'^^ covered by the |i((licy. 1 do not say that this would necessarily follcw , ■\ v even then it would not be the only inference to be derived from such a clause inlrodiieed inio the policy, liiit very ditl'erent is it -A-i i!.' case now stands. Here a polii'v liad alreaily been entered into, and that policy had rel'erenee to iuid (iroleeled a voyage from the Strait of Canso upon a loading to take place tiiere alone. After this I'ad been some time in force, the nienioraiulum is added, by which now, fortiic first time, leave is given to use Port Hood; and that not pros[)eelive in its operation, for the vessel was alreaily tliere when the leave was given, but it was only to sanction what had taken place, and to prevent what must have been apprehended— oomc prejudice to the insurance. Now, 1 really cannot KASTRU riifUM, 1851. iill Ncc wliat there i.1 in this to sliow llint a previous lomling elsewhere than At tho Htrait was in liiu uonti'niphition uf lliodupiirliuH, an euilccled trunt tlic nK^niunmilinn thus considered. II' such is to bo tlio etloet of the niiunoranduin, then it will indisputably introduce nn entirely new risk. Kor by the policy the risk, us we have Hecn, is confined to a loading at the Strait. The nieniorundum not only does not profess to change thi'<, lint cxi)ressly and in so many words continues that very risk. And if, in tiie tiiee of this, we can establish a new contract, by which another loadin<; — a dill'erent risk — is to be substituted, I think that at all events it can only be when the words which are to have such ctl'eet are so clcir, and |)lain, and conclusive, that they will not admit of a doubt. If the leave to use Port Hood could have been given upon no other supposition tiian that of such previous loading having taken place, I ad- mit that we should be compelled to take that view, but if r meaning can be found for it wliicli will be consistent with the policy itself, and not re- quire the substitution ot a new risk, the soundest rules of construction require that this should be adopted. Where is the dilliculty in finding such a meaning, if we do not call in tho aid of ext:' .sie eireumstanccs to in> lluence us ? AVhy may not a vessel, loaded at the Strait and insured from thence to Halifax, through ignorance of the conscijuences, have run back to I'ort Hood, and afterwards purchase her exemption from the dang(!r thereby incurred, by an additional premium paid tor this pur- pose ? I readily grunt that thitj was not the meaning of the assured. We now know that tho vessel had loaded at Mabou and Margaree, and had not reached the iStrait, and that it nnist therefore have been the in- tention of tho owner to protect himself from the consequences (and I can scarcely understand what they were) of being found in Port Hood at that time. Wo gather this, however, from extrinsic evidence ulone. Nor does even this inform us that the underwriters knew, or had the means of knowing, anything of these nmtters. liut still the meaning of both parties is to be ascertained from the language of the memorandum, and that is to be construed with reference to the polii.'y, and, as I have said, so as to support the [)olicy. All then that can be fairly gathered from it is, that tho vessel being at Port Hood, tlio underwriters agree that this circumstance shall not prejudice tho insurance already efl'ect- ed, but that tho risk under the policy shall, notwithstanding this, still continue in force. 1 can add nothing to it, nor imply any thing more from it, for all beyond this is uncertainty and conjecture, unwarranted by what is stated in the memorandum, and rather doing violence to it.s language, iuasnuich as it would alter, not continue the risk. The me- morandum then, in my opinion, has no ctl'ect upon the case. It leaves it just as it found it. Jn fact, it does but continue the mistake which was evidently made by the owner in the polic}-. He meant one thing and cll'ected anotUor. I may regret it, but 1 cannot help him out of tho 212 CREIGIITON r. UNION MARINE INSURANCE CO. difficulty. I will only fui'tlier remark that if this view be not the cor- rect one, and we must consider that by tlie memorandum a loading else- where than at the Strait was even authorised, then it appears to me that the proper construction of it will be, that Port Hood, to use which the leave is limited, has been substituted as the phice of loading instead of the Strait of Canso. The effect of which will be, that as the loading was not there, but at Mabou and Margaree, the policy btill never had an inception, and the plaintiff cannot recover. ^ii i ITalibuut ON, J. delivered a long critical examination of the cose, with reasons in extenso, the substantial part of which we take from our shorthand notes. I concur in the opinion expressed by his lordship the Chief Justice— not merely for the reasons assigned by him, but for some others of a different nature. I shall, therelbre, in 'jonformity with my usual prac- tice, merely mention those additional principles which have operated on my own mind. Tlic Attorney General stated that decided cases were now more liberally inierpreted than formerly ; he might have said that the law had of late been differently expounded. Mr. Justice Bliss seems to think that we are bound by the opinion of Sir Janes Mansfield, in Spittav. Woodman. I beg leave to dissent from tha^ proposition. The unconditional surrender of private judgment to decit'ed cases has drawn down the opprobrium of British statesmen on f- j study of the law ; and it has been broadly asserted that its tendency is io cripple and confine the '..ind. Most of these remarks have more in them of flippancy than of truth. It docs not follow thut the study of the law limits the mind ; but the mind may cramp itself by the mode in which it studies. If de- cided cases are immutable, and so considered by the Courts where they are decided, as well as in those of more limited jui'isdiction, like our own, we commit the fatal error of suvrendering up our judgmenis to those of otiier men. But I view the subject in a different light ; and regard decided cases not as law — but evidence of law — or expositions of law. Englishmen boast of tiieir common law as though it were pe- culiar to themsefvcs ; we, however, know that a common law extciisi^'c- ly prevailed in Greece and Rome, and now has existence in every civ'- lized country of Europe, in the United States, and the North American Colonies. That law has been defined by an ancient author of great ce- lebrity to be " the decision and adoption of certain principles subse- quently recognised and sanctioned by the Courts." He then winds up by stating it to be "the golden rule of reason." Lord Coke calls it "the right reason." When Lord Thurlow was at the bar his practice was to take a case as he found it, and study it up inuiictivcly, till he reached his conclu- sion ; whea this was doue lie consulted Lord Kenyan — a great case man; EASTER TERM, 1854. 21.T than mind ; If dc- •c tliey ke onr enia to and it ions re pe« •y civ'- erican !at ce- subse- ds up it "tiie and nothing proves more conclusively the value of decisions than the fiict that in moat instances he arrived at pretty much the same result as that set forth in the cases, alth'^ugh in a large number of instances his conclusions were sounder. Viewed in this light, the stu ly of the law, so far from limiting, must enlarge the understanding. Tie common law is elastic, it is remarkable for its plasticity and adaptation to all varie- ties of circumstances. In a new country like this — changing in its as- pects, condition, requirements, with every returning year ; where new interests, new combinations, and new difficulties are perpetually arising, it is impossible to apply stringent rules with the same unvarying fixity that marks their applicability to the circumstances of older and more stable countries. How can the same commercial rules be applied to a sparsely populated country — designated only by its latitude and longi- tude and a few log huts — as apply to Gibraltar or Malta. Uur trade is different in many respects, and, among others, we know that the traders along our coast are often obliged to collect their cargoes in different harbours, because many of them are so small that a whole cargo cannot be obtained at a single port. This course of trade is notorious, and must have been well known to these underwriters. Let us look at this policy ; a remarkable idea seems to prevail as to the liability of insurance offices ' o the assured. V/hat is insurance ? A species of gambling legalised because oi' the protection it affords to commerce. A certain number of persons form themselves into an As- sociation, are incorporated, and from comparative tables of the number of vessels lost, the fogs, tides and storms incident to various localities, &c., they assume risks, speculating against the perils of the sea. If loss occurs it falls upon a great many, and its operation is less injurious- less felt — thiin if borne by a single individual. If,'therefore, any of the parties to a contract such as this are entitled to the consideration of the Court, it must be those for whose benefit thi:) species o, gambling was legiiUsed. The first document requiring con'^ideration is the pol'cy, and the se- cond a letter of instructions signed by JUr. McKecn, the owner of the vessel, dated 12th of November, 1852, and which was given in evidence The Strait of Canso referred to in this letter and in the policy, is not a place. It is an arm of the sea dividing one portion of N*- ,a Scotia from another, navigable for the largest ships, containing '•^ven or eight ports on its opposite sides. At the very outset then, lae insured obtained a roving commission for twenty miles. Subsequently the owner fin ds it convenient to go to Port Hood, and ho obtains the endorsement of a me- morandum upon the policy, which, for an additional premium, continues the risk (from Canso toward Halifax) " with leave to use Port Hood." AVhat means this ? The leave to use Port Hood must have been in- tended to have some efficacy—- some operation in CAicad ]{. and Ad., i.lready rpfiM-rcd to. Tlie de- cisions in tiie Coii ir of tl\' Lai ted States arc conformable to tho'C in I'jigland i.;>nn tin ?ul>'r"'.i ii inay be seen upon reference to Greaves v. Marine Ins. Co., ':i. il. . \; R. voD ; Richatds v. Marine Ins. C*o., Johns ;i07 ; VandcnbHrgh \. 6'/< ?;''•. 1 Johns 4 1 1. It is not necessary to nml- liply cases to prove what is so clearly and inii)enitively hiid down as a general principle by Aninnld, and sustained by tlie autliorilics he lias re- ferred lo, but I camiot avoid aUudinfi to fl .. ;>i ot Parle v. Ilainmo'xl, 4 Camp. 311, which is iilso referred to by An. •'•' page I.JIi, and much ii. tiic same language used by (Ubbs, C. J. in deciding it. "It lias," lie says, " l)t'(;u repeatedly anil notoriously decided that a polit^y on goods, lie'jiniiiiig llic ad' ■ , •. i ; fnnu the, loadingllereof on board, Aillioiit any addidoM, only iiiii- i.es ■■•■ uod.- loaded at the ))(ii't wiiicli is the tcrmi- lUis a 'ii'ii (,{' t!iu ^ .'K,'.,- u-ired. So c(ini|)letely is this sttlleil law, that ail iii.unuK't! biLL\.; a'e Ijuu.id lo know and act upon it. llcnee, in !iif« w i in I K', i 11. I"' Ik' I '" I liv :; I 1 21C CREIGI1T0>' V. UNION MARINE INSURANCE CO. Park V. Hammond, where a Lovdon i)olicy broker, being directcil to effect a policy for a voyage from Gibraltar to Dublin upon goods wliicli, by his instructions, clearly appeared to have been loaded on board at Malaga, it ions held to be actionable nef/ligence in him to effect the policy on such goods " at and from Ciibraltar to Dublin, beginning the adven- ture upon the said goods and merchandize from the loading thereof or^ board the said ship." I have as yet considered this case with reference alone to the policy, but will now turn to the indorsement for the pur- pose of ascertaining if it will lead to a different conclusion from that which the policy inevitably has, in my opinion, according to both Eng- lish and American authorities, thereby clearly shewing that it never at- tached to the goods taken on board 'be vessel at Mabou and Margaree Island, and oidy could have attachcti i !? taken on board at the Strait of Canso, which was the termlu ;uo of the voyage. The principles and cases I have referred to an. - qually applicable to the in- dc sement on the policy, provided Mabou and Port Hood are not consi- dered by usage as the same ports for mercantile purposes. And, if they are not so, then still the policy never attached, as no part of the cargo was taken in at Port Hood, the place the assured had permission to use nnder the indorsement. I think it may fairly be inferred from the indOTSCment, that all par- tics to the contract were aware that Port Hood, under the policy, could not be used as a port of loading, otherwise it was unnecessary to give the assured, by the indorsement, permission to use that port. But the indorsement did give that permission under a representation that the vessel was to be there waiting a wind on the 7th of the month, four days before the indorsement was made. If the only object of the assured was to obtain further time for taking in the cargo, .>en the reference to Port Hood was useless. But it is evident the assured required somc- tliing more than time — something which the policy did not allow him — that is, to use Port Iloud ; and hence the indorsement in the form we iind it. It becomes, as it appears to me, unnecessary to give any opinion as to whether the plaintiffs could take in any part of the cargo of the vessel after the 7th of December, the day she is represented to be at Port Hood waiting a wind, or whether Port Hood and Mabou arc, for trading and commercial purposes, considered by usage as one and the same port; as upon other and different grounds I think the plaintiffs cannot hold their verdict. Tlie vessel commenced Ik r loading at Mabou, and if the evidence of usage is sulHciont to prov . it is the same as Port Hood for that pur- pose, thon tiic lirst act of the assured wasjustitiable. But, after taking in (lioro jtart uf lior cargo, slu; proceeded sixteen miles further north to Alargaiuc, phiiiily in a direction directly contrary to the course of the \ i EASTER TERM, 1854. 217 port; as old their voyage from Maboii to Halifax, an distinction, however, if any, making stronger in favor of the underwri- ters in this case than against them. If the assured were permittcil, under tho policy, to go to ISIarganu- Island for their cargo, why not to the next nortiieni Port, Cheticamii, or still further, to the IJay St. Lawrnr.ce. Indeed, when once we com- mence to extend the liability of the underwriters in this respect, it is ditliiiult to say at which point we are to stop, am! for that reason we had better adhere to those principles which have the sanction and anthoril y of the Courts of Law in England, and fiom which I as one am always pleased to find a precedent. I admit in this case Miat it is with extreme regret that I have been com- pelled to differ with his lonlsbip the Chief .Justice in the opinion he has 218 CREIGIITON v. UNION MARINE 1N8UIJ ANCK tU. just delivered, and whicli lius tlie samilion oCtlio majority of the Court. But, viewing tlie case as I do, I am compoUcd to say I tiiink the verdict should be set aside and a nonsuit entered. 1 )r,sl»\iMtKS, J. Two f^roinid-s of olijcotion wcrti taken to the verdict in this case by the defendants' counsel at llie argument; one of which was that the policy on the vessel and carjro were attached because the cargo was not liiden on board at tlie Strait of Canso, where the adven- ture was to commence; and tiio other, that it' the policy did allach there was a devi.'ition from the voyage. 'J'ho general doctrine to be col- lected from all the cases bearing on the point to which I have first re- ferred, (I Kast i;5i> ; 2 Taunt lllj ; 1.* Kast IC; I Taunt C'iit ; 2 M. and S. lOG; i") iJ. and Ad. (j.>l) is staled in 1 Ainould on Insurance; 41 S, thus, "Wliere insurance is eflected on goods fur a voyage " at and from" a speeitied tenniniis a quo named in the policy, and tiie risk .as to the goods is expressed to begin "from the loading thereof on board the ship" in the common form, the policy will only artat^Ii upon goods taken on board the ship at the very place named therein as the terminus a quo of the voyage." Hut the case of liM v. Hobson, 1(5 East 2 l.'J, is an autho- rity to shew that this well established principle may be relaxed when- ever it appears that it was intended by the i>arties to protect goods load- ed elsewhere than at the ti'rmiitus a i/im. The language of Lord Ellen - b^rouijli \\\ this case is, ''That if there be any thing to indicate that a prior loading was contemplated by the parties, it will release the case from that strict construction." There is nothing, it is true, on the face of the policy in this case to lead to the c chisioii that it was intended to protect goods laden elsewhere than at the Str.iit of Canso, where, by the terms of it, the risk was to connnencc, but there is a memorandum on the iiack of it, dated 1 1 th December, 1S.")-J, which mu-. r.F.LYKA. Iiiivn not t'liliglitencil us nnicli, I sjiy not thio as nmttorof roproacli, for wc Imvo not oui'.sclvcs been more sucri'ssfiil in our rescarclies. [t id a (iiicstion arisinj; upon our own staliito wliicli wc must docidc ratlior upon prineiplc than upon |trcrcilont. And wiiilc, upon tlie one liand, it is our duly to take care that the objoct of the I.of^islaturc is not defeated, so, in tlic other, wc must Itcwarc lost wo permit unimportant mistakes or omissions, commillod by those upon whom an onerous duty Is imposed, to vitiate the whole list, and thereby impede the administra- tion of ju.-ticc throughout the eountry. The thirty-first clause of the Act contemplates that such mistakes and omissions may occur and provides a remedy for them. It runs thus : "The Court or presiding Judge may amend the lists of jurors by strik- ing out the names of persons not liable to servo, or inserting the true name or addition of any person tliercin improperly designated or des- cribed, or by adding tlie name of any qualified person brought to their knowledge, and the prothonotary shall keep a memorandum of all such amendments, and annually return the same to the Clerk of the Peace, to be laid before the revising Justices." Of course, wc should give such a reasonable and cautious construction to this clause, as would prevent substituting the presiding .Tndge for the Committee of Magistrates ; nor should we allow any amendment or al- teration to have any ex post facto effect. No application has teen made to the Court under this clause, and I only cite to shew that the Legis- lature did not contemplate that every mistake or omission should vitiate the whole list. A complaint tliat the jurors who found the bill were drawn from a list, in which all the parties therein were not described with the accura- cy which the law prescribes, is very different from a complaint that per- sons were omitted from that list who ought to have been included in >i. In the latter case the grand jury might have heen composed of dif- ferent persons from those who found the bill. No such consequence would have occurred from the mere omission of the tr.ades or callings of those returned on the list. And as there is no suggestion that persons were omitted who ought to have been included, or any inserted who ought to have been omitted. I think that the objection is not of sulfi- cient weight to authorize the Court to quash the indictment, and, there- fore, think that this rule should be discharged. Bliss, J. The objections relied on are, that tliorc are not scperatc and distinct lists of grand and )»utit juror.^, and that tlic individual ju- rors are not designated and described as (he statute directs. The statute, (Revised Act, ch. loO,) after slating the several qualifi- cations of grand aiul petit juiois, and (.xcmpling certain persons from the liability to serve on either, pointa cut tlio manner iu which the ap- KASTEU TKUM, IH.VI. L'-2:J of dif- qualifi- is from the ap- puiiitiui.'iU is to be muilc of n sworn committee of tlic Sessions in tlie diiritrunt counties to prepare, anil from time to lime to revise, tlie grand itntl petit jnry list.' of tiie county, [t tiicn dirtscts tliiit tlio list of grand jurors, (and the same directions are verbatim repeated witli regard to tlio list of petit jurors,) sliall eonlain all tlie ein-istian names and tlie sur- names 1)1' nil lliosc (piaiified to serve as such — tlieir phiees of residence, trades, callings, or employments, and whether senior or junior, or by any otiier appellation by which they may be usually called or known. The great design and ol»jeet of the legislature in this was evidently to secure a jjcrfect list of the whole number of jurors duly (lualilied to serve on these several juries, witli such accurate descrii)lions of the person that all danger of mistake might be avoided. That is the sub- stance of the enactment. The particulars enumerated may be consider- ctl as instructions and directions to tlie committee as to the mode and the means by whieii this object is to be etfeeted. The statute never could have meant to lay down rules of such positive and peremptory obligation, that the breach of them would necessarily cause the whole list to be illegal and void. It is equally imperative in recpiiring the list to contain all who are qualified to serve, as that all should be describeect- ing the lists of juries in that county. They appeared to have been imper- fect in every essential particular — containing several jurors of the same name, without any thing to distinguish them from each other, and defect- ive from the general absence of all designations and dcscjiptions. And what was still more serious, there was the omission, not of one or two names, but of a large number of qualilieil jurors out of one single dis I rid. 'Whether this was i'rom accident or design, the Court tliought .^uch a case required their interposition. The present is a xcry dillei- liut one. The lists rclurni.'d by (he magi.-tratcs do iio(, it is true, in many cases, give the trades, callings, or emploviucnt:-. or oilier ilit-linc * 1(1 2n THE QUEEN r. BELYEA. tive nppullations of tlio jurora, but they do nevertheless very clearly de.signiitc thorn. Tlicy take up the division of the county into doctoral diiitrict.4, and, under the head of ciicli nunil)cr, the return is made of all tliosc qualified to Hcrvc therein, designating each by the initials G. P. or 1*., as each is qualified to servo on the grand or petit jury, or on the petit jury alone ; thus effectually, and, I think, to the spirit, if not in- deed also to the letter, fulfilling the requirement of the statute as to the distinction, by lists, of the two descriptions of jurors. Under the electo- ral district of the juror, his place of residence is also given, and where more than one juror is found uf the same name, there, in general, some clear distinctive designation, cither by the trade or calling, or some other known appellation, is added, to point out accurately who is intended. And so fully and clearly has this been done, that it appears from the affidavit of the shorifl^* that this list enables him to ascertain and summon the proper persons without difficulty or doubt. The substantial object of the statute has thus been obtained, notwith- standing the directions by which it was to be effected, have not been fully attended to. They have been followed generally in all coses where, from any peculiar circumstance it became more essential that these in- structions should be strictly observed, and they have been neglected in those cases only in which the omission has occasioned no practical in- convenience, and no infraction of the end and design of the statute. One, and one only, exception to this has been pointed out. In the list, under the head of one of the electoral districts, there appear to be two persons of the name of Robert McLeod, and who arc in such lists pro- perlj designated as senior and junior, as the act directs. But in the panel of jui*ors the name of Robert McLeod appears without either of these distinctions, or any other, save that of the electoral district in which he resides. Whether in the list signed by the Judge from which the panel is copied, he is set down as senior or junior, does not appear. Now, when the person is not particularly described as junior, the se- nior of that nanie must be taken to be the person meant. He is well denoted without the addition of senior to his name. And, unless it should appear tliat the senior was the juror drawn from the list, we may assume, I think, that it was the senior, and that the panel, therefore, contiiiiis the right person. But, if there were an omission in this in- stance, which .vould be a mere error of the officer of the Court in trans- scribing the namt from the jury list where it is correctly given, to the panel (of which, by the .vay, the statute says aothing), I am not dis- l)osed to consider this as fatal to the whole panel. It does not appear, luid it has not been suggested, that a wrong person lias been introduced into this grand juiy, or that any mischief, or injury, or inconvenience, has been caused by the circumstance of this juror not being described us icnior. While I feci then, and acknowledge how highly important it EASTER TERM, 1«:>1. 2ir, is to thetlue mtminiatrntion of juatico, timt the lists nnil tlic panels of ju- ries Hliould bn eiirefully guimlcd from inaccuracy, error, and all uncer- tainty, yet, knowing liow liable to iiiiHtakc arc the moAt correct and at- tentive ofllcers, and the class of persona from which ours must be taken, (and I must do them the credit to say that, in general, they are entitled to the greatest commendation,) I think it would not be a sound oxcrciso of a discretionary power, if wo made this the sufUcient ground for set- ting aside the panel and quashing their indictment. It is possible that, under an error like this, there may lurk some, as yet, undiscovered or unnoticed mischief to the party accused, but the consequence of hohling it fatal to the validity of the panel, are obvious and great. It would delay and interrupt the administration of criminal juatice in every County where such an error occurred. Nay, it might bo in the highest degree injurious to persons accused, for as such an objection must be equally open on the part of the Crown, it might possibly lead to the necessary postponement of proceedings against them, and to their |)rotracted coniincmcnt in custody to another Term. I am of opinion, therefore, that this rule must be discharged. H/> T.iBUUTON, J. I regret that I cannot concur with the opinion of the ' '.F Ji'STiCK niid Mit. Justick Bliss. My difficulty arises as to I int of the discretionary power of the Court in dealing with a statute, especially in a case where the legislature has specified its re- quirements with such minuteness as to demand the insertion on the lists not only of the christian and surname, but of the occupation, residence, &c. I do not stop to inquire whether these are wise and necessary re- quirements. I am not here to animadvert on statutes but to administer them. I can see many reasons in a small country like this, where there are such strong political feelings and so many local jealousies, why the legislature should have desired to give to every litigant an opportunity of knowing by what jury he is to be tried. As for the discretion of the Court, we have no law making power, nor have we any dispensing pow- er to do away with the express words of a statute. I do not think the law has been complied with in making up those lists, and therefore I nm of opinion that the rule to set aside the indictment should be made ab- solute. DoDD, J. It is unusual to quash an indictment on the application of a defendant when it is for a serious offence, unless upon the clearest and plainest grounds, but the Court will drive flic party to a demurrer, or motion in arrest of judgment, or writ of error, 1 Chitty's criminal law, 300, and the authorities there referred to. It is therefore a general rule that no indictments v.'hich change the higher offences, as treason or felo- ny, will be thus eummarily set aside, 5 Mod. 13; 2, Strange, 1210, If T ' !t W, < I l!.l S26 TIIK (.^T'EEX r. BELYKA, Com. Dig. " liulictnicnt", II., 2 IIuAvk, P. C, c. !>.'), s. UO. Our first in it out of llm general rnle. I lliiiik they are, and that the application ,*Iirnl(l be entertaincMl ; althouj^h 1 arrive at this conelusion with some reluclanee, seeing what the effect may he in case tiie Court should decide on quashing the indict- ment, as in that case the recognizance of the defendants will become ineffectual. At the argument, whicli was founded upon an afiidavit, there were several objections taken to the grand jury that found tlie bill of indictment, in this Ciise. 'J'lu! lirst of these objections was, lliat tlie grand and petit jurors were included in tlie same list returned to the protlionotary by the sessions, instead of two separate lists, as was stated to be the require- ment of the law. I do not think that the law does roipiiro two lists, but that it is fully satisfied by one, provided that one sufficiently distin- guishes ihti two juries, which it certaiidy docs in the jiresent case. In- deeii the list in this particular is marked with more than ordinary care and attention. The other objections are of a more serious character, and cauiiot be disposed of so retulily. If the provincial statute respecting (he jury law is so inqierative .as to compel the Court to give a strict con- struction to the re(piiriMucnts of the act, or if the objections in the slight- est manner tend to impair the trial by jury, then in either case they should prevail, and the indictment ought to be (piashed. The 7th section of the act, cha])t!M- 1. '!('>, re(piires " that the list of grand jui'ors shall con- tain all the christian names ai«l llu! surnames of all those (pialilied to sorve ns grand jurors, the places the list return- ed to ilic .Su|>reMie Court, and also (o (he panel, the oi.iission complain- r'd of is apparent, a'.id the want of the desigMi:'ion of the jurors is gine- ral, and not conllned to a single case, so that it was impossible for the t'iierilf (o knov,- wiih any degree of certainty who he was to -innmon. In our I'.a.-lern Counties, there are many pi'rsons of (he same name quatitied as jur(jr.> which often leads to eonlusion. This fact, 1 have n^ K ASTER TKRM, is.>',. 227 tloubt, was witliiu tlie knowledge of the legislature, and mainly induced the particular wording of the jury law. It is of the highest importance that this law should ho construed, so as to prevent fraud or collusion between the oificer whose duty it is to summon the jui'y, and the parties to the cause, and if we did not give a strict construction to our statute, re- i(uinng tlic jurors to be clearly designated, I think we should leave an opening for such fraud or collusion, which would actually create suspi- cions injurious to the character of the oflice, the elfect of which would be nearly as bad as if the fraud were perpetrated. J^ot me suppose that the sheriff of the County of Cape Ureton were directed to summon John McNeil as a grand juror, without giving him any addition or desig- nation whatever, he might select at least ten of that name within the County — pei'sons qualitiedto seive as grand jurors — and if so disposed, summon one whose political feelings pud oi inions, or whose friendships and partialities were for or against a defendant against whom it was known a criminal charge was anding, and thus lend himself to the violation of the law, with sc.ircely any risk of detection. But \{' Julm McNeil were properly designated agreeably to tiie rc;iuirements of the statute, then no so such temptation for the slieritf to do wrong, niucu less the power to do so, would be given to him, and then every suspicion respoctin;!; his conduct in the matter would rest. Applications similar to thj preowtit w've considered as applications to the discretion of the Court, ia Dnvey v. Hohson, 2 Mitrshall, 154, :ind The King v. Hunt, 4 B. tind Ad. 4iJ0. Therefore, whenever an extreme case is brought under tiie notice of this Court, such, for instance, as the omission of a single name from the jury list, of a person qualilied to serve as a juror, or the omission of ♦Jic designation in one or two solitary instances, we shall have no difliculfy in disposing of such cases without producing the serious consequences that were referred to in the argument of this cause. I have not referred to The. Queen \. J 'atterson, decided in this Court in Trinity Term last, as a case in point, as my brother Judges appear not to iiave decided that case upon the single allidavit made in it, but upon all tho facts that were brought under their notice in the other causes then before them of a si- milar character. I, however, formed my opinion upon the single alli- davit mude in the cause, and in that case, as in this, I think the grand jurors not having been geneniUy designated in the original list, and the panel, so as to meet the re(iuiremenfs of the statute, are .-niflicient grounds for quasiiing the indictment ; and therefore the rule here should be made absolute. DksBaukks, .1. 1 do not think this is .1 case in which the Court ought to exercise its discretion. The objections are made before trial, and, as it appears clear to my mind that the positive requirements of 228 SMITH V. McKENZIE. the statute have not been complied with, I think the indictment cannot be sustained. Rule absolute. II «'■ i LESSEE OF SMITH et. al v. McKENZIE. April 7. Evidence of mere prior possession in the plalntiiT affords a sufficient prcsninption of title in him, to enable him to recover in ejectment against a wrong doer. Possession by defendant of a part of the land of his father-in-law, will be presum- ed to be a permissive occnpancy, unless there be very strong evidence to shew an adverse possession. Ejectment tried at Guysborough before DesBarres, J. in last Octo- ber Term. Verdict for plaintiffs. In Michaelmas Term W. Johnston moved to make absolute a rule nisi for a new trial. Young, Q. C. con- tra. Johnston, Q. C. replied. The Court now delivered judgment. Halliburton, C. J. considered that the rule for a new trial ought to be made absolute upon grounds similar to those stated in the opinion of Bliss, J. Bliss, J. This comes before us on a rule to set aside the verdict found for the plaintiff*. It was an action of ejectment tried at Guys- borough before DesBarres, J. The land in dispute is a small lot of about half an acre, lying between the possessions of the lessors of the plaintiff and the defendant. The lessors of the plaintiff claim, under the will of their father, George Smith, who died in 1850. As far back as 40 or 50 years, and up to the time of his death he appears to have possessed and occupied the land adjoining this disputed lot, on the west. And, for some years prior to 182C, to have exercised some acts of own- ership over this lot, which, lying close to the waters of Crow Harbour, and to the extensive fishery carried on there, seems to have been used chiefly, if not entirely, for purposes connected with that fishery. Dur- ing the fishing season, persons engaged in that occupation hauled their nets there, and spread them there, and erected poles and flakes thereon. For this they paid rent to George Smith for several years before 182G,— the earliest instance being, I think, somewhere about 1818. Smith himself also appears to have used the place in the same way during the same period, i'his seems to be the extent of any exclusive possession by Smith of the disputed piece of land. No evidence of any title in him was offered, and it is evident, indeed, that he had none. In 182C the defendant first appears to have come there, and from that time he EASTER TERM, 1854. 229 has possessed and occupied the lands adjoining this lot on the east. From this period, or certainly from 1828, the defendant has also made use of this lot for fishing purposes, as Smith, and others acknowledging the claim of Smith, had done before 1826, and Smith also continued to claim and use the land since that time, as before. One witness, Jamieson, says he paid rent to him for the use of it, from 182G to 1828. And another, Digging, paid similar rent to him from 1842 to 1847. But this must have been, I think, not precisely as rent for the lot, but rather in the nature of a compensation for such use and j-rivilege as these per- sons exercised over it, for, during the same time the defendant had his own flakes on the land, and in 1843 had put up a store thereon, which he has ever since continued to hold and occupy. When it was being erected, Smith, indeed, forbid its being put up, but he neither then nor .-ifterv/ards took any steps to vindicate his rights, and, when forbid, the defendant asserted that he had as good a right as Smith. This piece, together with the whole land on which the defendant has lived since 1826, was said to belong to a man named Curry, and was called Curry's land, and there is strong evidence that Smith himself recognized and acknowledged it to be his. It appears from the evidence of Humphrey Hbrton that, 28 or 30 years ago, that is about 1824, a survey of these lands was made by Taylor, at which Curry and George Smith were pre- sent, the object of which seems to have been to establish a line between Smith and Curry, which was then disputed. A person named Mortimer wiis brought there to establish the line between them. The witness' father differed from Mortimer as to the right boundary, which was fi- nally settled where old Norton pointed it out, to the north-west of Mor- timer's boundary. The boundary, which was to the east side of the west brook, and, if I understand it rightly, is the same to which the defendant now claims to hold, was a rock having their marks upon it, which were renewed at that time by the surveyor, and, according to the line then so settled, all the green except a small comer, that is, the land in dispute, was on Curry's side. Upon these facts I cannot understand how, upon the right derived from prior possession — upon which alone the plaintiff relies — he can maintain this action. Prior possession is prima facie evidence of title, and is quite sutRcient against any one who enters wrongfully and turns out the former occupant. The person thus dispossessed is not put to any proof of title. It is presumed, and properly so, against such a mere wrong doer. It is a necessary principle against violence and outrage, and for the preservation of order and peace. But I think it would be extending that principle very far, and beyond its proper limits, if ap- plied to a case like the present. The possession of George Smith, even prior to 1826, was not altogether of an absolute or exclusive character. He used it only during the Ashing season, and for fishing purposes. He 2 JO SMITH >'. M(;KKNZIK. ii m 'f 'Si I rcreiveil (■(iiupcnsiilion IVoiii oiliors also, for the same, kind of use of it, wliifli may liavc hocu coiu'cilcil to liiiu as llio propi-ictor and |>osspssoi' of tlio adjoiiiini; land, to wlioni, on tliat accoinil, claiininL; it ns lio did, it mif^iit be siippo?;('d lo Itelonj:. I>iit if, previous to 1S2(>, any of tliosc wiio resorted lo it and s|)read tlieir nets tliere, or ere('t<'il pole;; tliereon, liad njfused to |)ay Sniil/i for liiis, it appears (piestionablc to nie wiici er tliis sort of possession wliieli lie had exercised over it would have cn- ahhui liiiu to tiu'ii Iheni oH". They would all have been very like dis- (ind trespass(?rs on another man's land. J5ut, however that may be, since ]H2(! or IS'JH the defendant has claimed the same riRht and exer- cised himself the very same acts over this piece of land as Smith ; that is, for 2o years he has had, to say the least of it, in an ecpial degree, a concurrent possession with Sniitli. After the latter has submitted foi this long period to such a state of things, what jiresumption now do the acts of ownership which he has exercised over it, furnish of any right in him to the land itself? In 18-2C, when the defendant Hrst came there, and made any claim to the lot, the only (juestion might have arisen whether Smith had such a possession as enabled him to muintain eject- ment, and, if so, then such prior possession would have been sullicient, for the defendant at that tinje would have a])pearcd a mere wrongdoer. Hut after the hn)se of 2r> years and luore, the defendant's position, and that of Smith too, are materially changed. The presumption of title in the latter nuist be now greatly diminished, while the defendant can hardly be looked upon in the same light as a mere wrong doer. And, if nothing else njiiiearcd in the case, T do not know that the facts would not permit as strong a presumption of right in favor of the defendant as of Smith. Wut the case does not rest there. About 1825 the line is acquiesced in by Smith, which cut oil' this lot from his possession, and gave it to Curry on the other side. Tho jiri ma ftirifi evidence then, f)f title, which this previous exercise of acts of ownership over the lot had furnished, is at an end. Soon after this the defendant comes there, enters upon and holds, down to this day, the t)thcr lands of Ciirri/ — to which Smith has admitted this lot to belong, lie claims this lot as his also, and exercises, concurrently with Smith, acts of ownership over it; in the lir.-i iiislance, of the same kind as exercised by A«////, and latterly !ind since 181;!, by the erection of a store on the lot, — a still more decided and absolute pos- session of it. If a title had been shewn in the defendant from Curry, that would have been undoubtedly a complete and ])erfect bar to tlie.ac- lion. IJut without that, I think that the possession of the other land of Curry, — thai is, of land recognised by Smith lo bi! his, — for upwards of 2i> years with an asscriion of right also i)y the defendant with respect to this lot, which was admitled i)y .S'//;(V// to belong to r^///7/, and the cxer- ei.>?es- •sjon against Curry, to whom, it is said, tlie land in dispute belonged. It is enough that he had such a possession as warranted the jury to pre- sume a title in him as against the defendant who sliewed no title. The running of the division line between Ch/'jv/'s and the devisor's lot. and which, I thought, operated as a disclaimer of title by the latter, of :he premises in dispute, took pl.ace 28 or JJO years ago, but it appears from the testimony of 7'homas Dort tiiat tlie devisor continued ns befon; to hold possession of the premises called " The tirecn", from the timf of the survey up to 1841, when the defendant erected fisii flakes on tlu^ eastern part of" the Green". The devisor, however, after liie defend- ant's flakes were put tht^re, received the rents from time to lime for, and always kept possession of the western part of the premises unl'l h's death., which happened in IS.*!). After his death tliedefcJidan' erected a fonce there, not onlj- enclosing the land upon which his llnki^s stood, but aNo "nelosing that part of the premises of which the devisor died seized. A« to tlhit part of the premises then, saying nothing (tf the possession of the other, the defendant, as it strikes me, was unquestionably a trespasser, and, therefore, I tliijik, there is not sufficient ground for a new trial '\\ this case. Hole discharged. Ill If fjp 234 M( KKNZIE *•. KOBERTSOX. McKKNZTE r. ROBERTSON. April 7. A vfrl)«l nfjrcctnont lietwi'cn A nml H Ihut II slinll tHko a net in pnymciit of Ills (1cl)t, nlllioiif;!! iiitviiilcil us ii liiial nKrcfineiit l>y the |>nrti(.>!i, la not a siiiliciuiu com- lilittiR'u with tlio stiiliilcoriVauiU to Iransfor the iiroperty to U. It ftppearcd l»y tlie minutes of trial in tiiis cause, that the Kei'. Nor- man McLeod, of St. Ann's, in Cape Itroton, beinj; indebted to tiic plain- tirt' in £\ (i l.'»s., and being about to leave the Province for Australia with Ids family, and not being able to pay the plaintiff in money, proposed, in October, 18."»I, to liquidate his demand by transferring to him a net. The net was th(!n in a store bidoiiging to the defendant, and which In^ had purchased from AIcLcod, the net being in the building when it was sold to the defendant. A short time previous to liis leaving tlic coun- try, McLeod sent an agent with plaintilf to inspect the net, and on their return it was verbally agreed between McLeod and the plaintitf, in the presence of witnesses called for the purpose, that the latter should take the net in satisfaction of his demand ; but no delivery of the net was provetl, nor was there any evidence of any payment of money by th« plaintitV, nor any written hote of the transaction. It also appeared by plaintifl"s witnesses that about 20 days after Mc Lead's departure the plaintilf applied for the net to defendant, who refused to deliver it, alledging that McLeod was indebted to him in £l',\, and that he had seized the net for that debt. Upon tliesc facts the plaintiff brought trover, whicli was tried bcforo Dk-sHauuks, ,]. at IJaddeek in last dune Term. At the trial the learned Judge rcconnnended a nonsuit on the grounds that there was no evidence of property in JfcLeod, or of delivery by McLeod to the plaintiff, nor sullicicut eviilence of identity. Verdict for plaintilf. Youiiff, Q. C in Easter Term moved for a rule absolute to set aside this vcr sent of the party in possession should be obtaiiiod. Smith v. Chance, 2 li. and Aid. 7.'t',i — i)er IMroyd, J. ; Suiter v. Woolams, 2 M. and G. {'M ; J'hllUps V. Jiis/olli, 2 1\. mid C. 511. Neither wa« ihere delivery in this case. JientuU v. Jiurn, 3 B. and C. 423 ; 5 Dow. and R. 284 ; 5 Kng. Law and Kq. Uep. 53'J ; Jinjans v. Nix, 4 M. and W. 791. liitchii; contra, contended that the jjlaintifl' could recover upon this trnnsl'er, whether nt common law or under the statute, but distinguished the ease as not being under the statute, this being a consummated con- tract, fur three reasons : 1st. That the defendant was not the party to avail himself of this defence; 2nd. Because the price was paid; 3rd. Tiiere was a sutlicient delivery. Isf. as to payment. The debt from McLeod to McKensie is not ques- tioned, and it was expressly agreed that what they did before the wit- nesses called by the parties, was to settle all transactions between them, and was precisely the same in efl'ect as if the money had been paid. The debt was extinguished and the property passed upon the same principle, which makes the deliberate destruction of a promissory note equivalent to the extinguislunent of a debt. If this be the case the statute cannot apply, because the contract was executed. But suppose no money was jjaid, and no equivalent act had occurred to change the property, it is still contended that trover may bo maintained by a party who has never had any property in the goods, but mere possession only, as if a man found a jewel, and could not discover the owner, he could maintain trover against a third party who wrongfully took it out of his possession. It is admitted that a right of property may pass without the bargainee being clothed with a right of possession, but here was a jiositivc delivery. The question is, was there any thing remaining to be done by vendor in order to pass the property to vendee. If any thing remains to be done no property passes, but here it was dilferent. This was not a sale infiUuro, but a sale in presenti. It was perfected and consummated, and there was no lien for the price remaining in tha vendor. Cites Smith's mercantile law, 434 (lib. ed. 572); Long on sales, 14li; Sheppard's Touchstone, 225; Hind\. Whitehouse, 7. E. 571 ; Jiat/- ley V. Culverwell, 2 M. and K. 5GC; Whitehouse v. Frost, 12 E. 614; Martindak v. Smith, 1 (J. B. 3D5. To shew that there was sullicient delivery under the statute, Dixon V. Yati's, 5 Barn, and Ad. 340. In this case it was held that the rule, that the delivery of an order to receive goods is not a sutficicnt delivery of the j^oods, did not apply when the property sold was a specific chat- tel. 2 Ksp. 51)8 .; Smith's raer. law, 440, note ; Martindule v. Booth, 3 B. and Ad. 505. The party here refuses to deliver it, not because of a defect in plain- titf's title, but gives an invalid reason, viz., that he Imd a debt against 236 MiKENZIE r. ROBERTSON. '■ !■. ' McLeod. lie ilocs not stiuul, in any (Icgree, in llie position of a subse- quent purclmser for n, viiluabh; con.sitlt'riition, but merely iis a creditor oi McLeod, wliicli ooulti give liiin no lien upon this property, nor any right to question plaintitW titlo. lie sets up an invalid claim, wliich is no answer to a conxummatud claim siicli as that of |)laintifr. Addison on Contracts, 71, 71, 77. This is like lhi/, and in Gordon v. Harper (7 T. II. 9), there cited, and which is the leading cusn on this point. The right of possession conjmenees with the delivery, and without it tro- ver cannot be maintained. The delivery of a part in the name of the whole, or of the key of a warehouse will, in certain cases, sullice. So, on the other hand, if the note (if any) which represented the debt had been torn up, or a receipt given, it might have been said that the plain- tilF's debt was discharged. But here there was neither delivery on the one hand, nor payment oa the ot!u!r, nor any memorandum in writing, and, therefore, the transaction was not eousumiuatcd by the performance of either of the three criteria rc(iuircd by the statute. The Court now delivered judgment. IIallibluton, C. .T. After looking attentively into the eases which were cited at the argument, and, 1 acknowledge, with a disposition to sustain the verdict, if 1 could do so consistently with the rules of law, I feel compelled to concur in the o])iniuu expressed by my brother Des- Bakkes at the trial, that the property in the net had never passed to the plaintitV. Cases will sometimes occur under the statute of frauds and the statute of liinitalious, in which the positive rules laid down in those wholesome statutes may appear to work injustice in the particular case, and this presented itself to my mind as one of them. Experience has, however, shewn that all attempts to swerve from these rules and render them subservient to our views of justice in such cases, tend to produce the greater evil of uncertainty in the administration of the law, and the decided feeling of the Courts, for some time past, has been to adhere strictly to the statutes. EASTEU TEUM, 1864. 287 Now, the statute of frauds (Rcvd. Stat., cti. 121, s. 4) plainly enacts that " No contract for the sale of any goods foi- the price of £10 or up- wards, shall be good, except the buyer accnpt part of the goods so sold, and actually receive tiie same, or give something in earnest to bind the bargain or in part of payment, or tiiat some note or memorandum in writing of tlie bargain be made and signed by tiio parties, to be charged by such contract or by their agents tiiereunto authorized". Tiie strict- ness witli wiiich tlic Courts liavc adiicrcd to the words of tiie statute is manifested by tlic distinction wliich tlie Court of King's Bench drew between the cases of Cooper v. Elston, 7 T. It. 14; and Ilinde v. White- house, 7 East 5.58. In the former case tlic defendant sold to the plain- tiff, by sample, 50 quarters of wlieat, and delivered to the plaintiff the sample by which tlie wlieat had been sold, but such sample was no part of the 50 quarters to be delivered. In the latter case the defendant be- came the purchaser at auction of 27 hogsheads of sugar. Half pound samples of sugar were taiicn out of each hogshead and delivered to the purchaser as part of the sugar sold. In the former ease the seller re- fused to deliver tiie wlieat, and, upon action brought on the contract, the Court held that the defendant was not liable, as the wheat delivered formed no part of the wheat agreed to be sold, and, therefore, there was nothing to talxc the case out of the statute. In the latter, although the sugar had been burnt in tlie king's wareliouse by an accidental fire two days after tlie sale, yet the loss was thrown upon the buyer on the ground that, as the samples formed part of the gootls sold, and were ac- tually received by the buyer, the contract was good under the statute. In the former case some prior decisions were alluded to in the argu- ment, modifying the strictness of the statute, but Lord Kenyan said, " After the question has been so long afloat in the Courts, I am glad tliat, by the very able decision of the Court of Common Pleas in the case of Rondeau v. Wyalt, the construction of this chiuse of the statute of frauds is brought back to the manifest intention of the legislature in making that provision". And Grose, J. added, " It is much to be la- mented that the excellent provisions of the statute of frauds should ever have been impugned or weakened by construction". It was contended at the argument that the acknowledgment of a debt by McLeod, and the agreement to accept of the net in discharge of it, by the plaintitF, is equivalent to a payment made at the time of the con- tract. I have found no case that goes that length, and as it is not one of the exceptions of the statute, I do not feel at liberty to depart from its positive words " that no contract shall be good", except in the cases therein enumerated. It is true that in Chaplin v. Rodgers, 1 East 194, Lord Kenyan said, " "Where goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tantamount, such as the delivery of Ml McKKNZIK f. UOIJKUTSOX. the key of a wivrehouno in wliii'h llnj goods nro lodged". Hut, he pro- fiiced these observations by nuying, " It is of great conseqnenpo to pre- serve unimpaired the several provisions of llie statute of frauds, which 18 ono of tlic wisest laws in our statute boolt". In tliis case no delivery of the ll. •230 liiftl receipt of the net by tbo plaintiff. He wih oirercil the net Ity ^fl!■ /.rod, In payment of i\ debt, if be would tukc it. Tlic net wfts w t tberc wbore tbisi ne^otintinn wna tuking place, and the plaintiff went to ex- amine it. Now, this was no acceptance — the receiving delivery of u thing sold. It had not yet been sold— the bargain had not been com- pleted, and was not, until the plaintiff returned to McLeod and llica agreed to take it for the sum which was due to him. Then, it is true, McLeod called upon those who were present to witness that he was giv- ing the plaintiff possession of the net for the claim which the plaintiff bad against him. Hut the net was still not there, and no possession was tbtrefore given or taken of it. Nor can tbo peculiar nature of the bargain be deemed a compliance with the statii,', in respect of the earnest or part payment required by it. The existing debt due by McLeod to the plaintiff, which the latter agreed to remit or give up as the price of the net, it is said was a pay- ment in advance. It may be, perhaps, so considered in some respect, but I cannot view it as a payment to meet the requirement of the sta- tute. Tlie design of this enactment appears to have been, that, there tihould be something done as well as said — that some, visible, real, dis- tinct act should take place, as evidence that the bargain had been con- cluded and ratified, to supply the place of a written contract, and like that, to prevcnl, as far as possible, doubt or mistake. And the statute has selected "" two acts as essential for this purpose — something to be given in earnest, to bind the bargain as it is termed, or in part pay- ment — or the actual receipt of at least part of the goods. AVhere these acts are wanting, the bargain is ineffectual. It is still but a bargain of words. It remains just as much a matter of contract, and nothing more, that the j)laintiff would give up a debt duo to him for the price of the net, as that he would pay for it at a future day. To consider this such a payment as the statute requires, would be making a mere verbal con- tract for the sale of goods sufficient of itself, and would completely de- feat the statute. See Walker v. Nussey, 1 1 Jurist 2.'J ; 1 (! 31. W. S. C. With every disposition to uphold the verdict, if I could with proprie- ty do so, I feel myself compelled to say that the plaintiff has shewn no sufficient right to the net, and cannot sustain the action. The rule for u new trial must, therefore, be made absolute. IIaliuuutox, J. concurs. Doni), J. I was of a different opinion at first, but when I saw the case of Walker v. Nussey, 11 Jurist i'i, wbicii is a case on all fours with the present, I was satisfied that this verdict could not be sustained. DesBarucs, J. I was under the impression at the trial that (he contract made between McLeod and the phuntiir came within the scoiw 12 I 2411 JMcKENZIE V. KOliEUTSClX. . 'Il J i 1 If 1 and provisions of the statute of frauils, (Uev. Stat., c. 121, s. i,) iiiiis- luucli as tlierc appeared to me to be no evidence of any actual dcrlivery «r acceptance of tlie j oods sold. The learned counsel for t!ie plaintifl' cont(;nded at the ar-^iimcnt that the price of tlie j^otls sold was jiaidy tlie vendor having agreed to take a debt due by him lo tho vendee ii> payment, and that, liavrng so done, it was an executed contract, to whicl* the statute did iwt attach. I cannot consider tjje eoiitract as executed,^ but still entertain the opinion I did at the trial. In the case of Walker V. AViwy, K) ar. and W. ;i<>2, cited in lloscoe on Evid. J}20, it was lield tliat a bargain that tlie vendor sliould take m |)nrt jmyment a debt due from him to tlie vendee, was not in itself sufficient part paymeiU to dis- pense with a writing, no money having actually passed, nor receipt for the debt been given by tho vendcie, for this, it was said, would in etfect let in proof of the contract itself in oi'dcr to evade the f;tatute. Now, if the bargain in that case was not sufficient to dispensf with a writing, the bargain in this cannot be, for the same prin<;ipIo will apply to both cases. There was no money })aid here, no writing, and no receipt or discharge given by the vendee to the vendor for his debt, and, as it seem* that tho agreement by the vendor to take the debt due by him to the vendee in payment cannot be considered ivs eijuivalent to an actual pay- ment, it follows that the contnict made between them was not consu.n- mated, and that the statute did not attach. liut it was also contended that there was a delivery of the property to satisfy the statute. The case of Bentall v. Burn, 5 1). and K. 284, 3 B. ami Cres. 423 S. C, i» an authority to shew that, if there was a delivery in this cjase, (of which there was no proof.) there was no acceptance of the goods liy the v(?n- i. 211 tintiff cxclmnjicil mnil fliits. not rnr'>tilc of nrtnal omiftiilion, for modni.' tiiinks iiciirinp grrtss, into which pUiiiititT ontert'il uml rctnint'd possession for ift rears, no ronveynnces heinj; exermoil on either side, iinj »nlise(juently, as the ■Mid fiats heeame prodiu'tive h avcrction, tfia plaintiff entered and took the jjrass Ironi them also, at tlie same time olaimiiif; title, by possession, to the sedjrc hanks. Held that if the exoliansje was cumpletcd hy a mnttial snireiMlcr of the hindj, there was mutaal adverse possession, hut if not. the [larties hold |)ermissivcly from ea( I: otiier, and tlie statute of limitations eoiild not apply. Held also that the faet of such surrender beinj; made, is a (juestioii for the jury. This cause was an uctioii of trespass, tried at Iventvillc in October, l**rt2, for years. The mud flats, as their name would indicate, were probably in 1.H27, when this agreehicnt took place, bare and incapable of any beneficial use ; for Jiishop, who was a witness for the defendant, states, lliat he looked forward to time to make them up. And, it would appear, that no actual possession was, or probably could be taken of such pecu- liar i)rc'pcrty, until, in course of time, it was made capable of yielding something. 15ut Jiishop states that it was just an exchange of lands — one was given for the olher — that he looked upon these flats as his own and always claimed them. He adds that he conv(!yed them to Lawrence, l>ut that does not appear in the extract which has been sentto me of tlie deed. In April, 1laintitf, describing it ns ad- joining lands owned and in the possession of the ])laintiff. .Lawrence eonvcye4 to Jfoori; and the latter on 1st September, l!S.V2, conveyed the same land to the defendant, and by the same descripticm and bounds. In l.Sl',1. the plaintiff UKnvcd the Hats, and, it would seem from the evidence; of Aaron Jujrsyth, that he had always done so, for he says that jilaintilf always mowed down to the river, but there is no evidence whatever to shew when the Hats became ca|)able of being mowed, nor couseipicntly how long or from what time the plaintitV had so used them. After the defendant had [)urchased the sedge marsh, he offered the plaintiff to take either the one or the other piece, or to leave it to arbi- tration. The plaiutiH' hesitating and giving no decided answer, the dcl'enilaut entered upon the land, which, though it is not clearly stated, I suppose must have been the land intended to be (exchanged for these K ASTER TERM, 1854. 2ili mild flats, anil cut and parried away tlip n;rass, this is the trespass com- plnined of. Tin; (Jutur liow ueiivercd judgment. IIai.i.iimutox, C. J. In Easter, 1853, the Court intimated to the counsel that an important tUct was not so clearly stated in the case as tlicy thou>rht rcijuisito, but as that fact must he known to the parties, and particularly to the plaintiff, they stated their view of the law in the alternative of its bein<; true or false, in such way as they hoped would terminate the dispute, without further expense. In this hope they have been disappointed, and it has therefore become necessary to dispose of tiie rule. It appears by the report that about the year 1827, the plaintiff owned certain mud Hats on the lliver Cornwallis, and one William Bishop owned a piece of sedge marsh adjoining the sedge marsh which the plaintiff took under his f'athei''s will. An agreement was entered into between the plaintiff an 1 Bishop to excluuige the sedge marsh for the mud flats. Under this agreement the plaintiff entered into the possession of the sedge marsh, and has held it since the year 1H28, but no deeds have passed between the parties con- veying the title of one to the other. No actual possession could be taken of the mud flats until, by the gradual accunmlation of the deposit of the sides of the river, they should be raised suiliciently high to produce some salt grass. This, it appears, VIS the case in 184'J, when the plaintiff, Forsyth, mowed it. Now, if .he plaintifl', under an agreement to give tiie mud flats for the sedge marsh, hiis entered upon the sedge marsh, and has not given the mud fhits, but still exercises his right over them under his legal title which he has not conveyed away, then he has not paid the price of the sedge marsh. He stands in the situation of a man who has entered upon land under an agreement to purchase it, and can only be considered as a tenant at will to the vendor until the purchase money is paid. Sugden on estates, 101, 5 ; i Scott, 732 ; 2 c. M. and R. 120 ; 1 Mee. and W«l. 7(K) ; 3 Mee. and Wei. 1 18 ; Angell on Lim., eh. 31, passim. If the plaintiff was only a tenant at will, then the defendant has done no mure than he had a right to do. If the plaintiff in good faith relin- (juished the mud flats to the defendant when he took possession of the sedge marsh, then he has held the latter in his own right ever since 1828, and has gained a title under the statute, but as (Sudgen says (page 105) before cited, " The statute should never be so turned, construed, or used as to protect or be a means of fraud" ; and I much fear that this is an attempt on the part of the plaintiff so to use the statute. 'J'he properly he received in exchange for the mud flats is capable of 244 FORSYTH V. GRIFFJ.V. m occupation, and he has occupied it for upwards of twenty years. The property he agreed to give in exchange for the marsh was not capable of occupation at the time, and as soon as we have any proof tliat it became so, he reaps tlie fruit of it. It is true that Bishop, under whom defendant claims, said lie always considered the mud flats his, and con- veyed them to Lawrence, but Lawrence was to have a deduction if the flats were recovered ; but his t^o considering it, is not tantamount to ac- tual occupation, and would be of little avail against the legal title if it were asserted, and where such fair offers were made by the defendant to the plaintiff, as appears by the report, before the acts which are com- plained of as a trespass were committed, and declined by the plaintiff*, there is too much reason to fear that he has a design to assert it. It by no means appears from this report that all claims to the mud liiiio ^''p relinquished by the plaintiff", — on the contrary, the inference is very strong the other way, — in which case he must be considered as having entered into the possession of the sedge marsh by the permission of tfie defendant, and it is well observed by Chief Justice Marshall, (See Angell on Lim., ch. 31, s. 5, p. 401) "That it has not only been recog- nized in the Courts in England, but in all others, where the rules estab- lished in those Courts have been adopicJ, that a possession which was permissive and entirely consistent with the title of another, should not bar that title, and it would shock the sense of right which must be felt by iill legislators and all judges were it otherwise". I should regret sending this cause to another jury. If the plaintiff act wisely, 1 think he will become nonsuit, unless a different complexion can be given to the case from what it now bears ; but if he decline doing so, at all events the rule to set aside this verdict for him should, in my opinion, be made absolute. Bliss, J. I have no doubt about tlie law of this case, the only diffi- culty lies in the facts to which it is applicable. If this exchange of mud flats for the sedge marsh was fully and completely carrried out, so that when the latter passed into the possession of the plaintiff. Bishop at the same time took and held the possession of the mud flats, this possession in each was, and it continued to be, adverse to the other, and at the end of twenty years would in both ripen into a good and perfect title. It would be precisely the same as if each had sold to the other the flats and the marsh, and had received the price and consideration from each other, and had fully completed the bargain, but had made no conveyance. But if the bargain was not then complete, if the price was not paid, or taking the case before us, if the plaintiff" agret ? fo give up the mud flats as the equivalent for the sedge marsh of which, under such agree- ment, he obtained possession, but did not in fact relinquish the flats, and Bishop did not receive theoi into his possession. Then it was, on the EASTER TERM, 1854. 245 purt of Die plaintiff, a possession of the sedge marsh under an unfulfilled agreement for the purchase, and he entered, and held, and continued such possession, as the tenant at will of Bishop ; and of those who suc- ceeded to the estate which he had on the land, and the entering into the land and cutting the grass was a determination of the will, and not an act of trespass. See 7 M. and W. 226 ; and 9 M. and W. 643 ; Doe, e. d., Jiennett v. Turner. T have already had occasion, in the case of lessee of Cunard v. Irvine, in Easter Term, 18"»3, to consider the effect of a possession of land taken under an agreement for the purchase, and the essential distinction in such a case hetween an agreement fully completed by the payment of the consideration, and one in which the money is unpaid. The difficulty in the present case is, as I have said, whether the agreement was fully completed — whether the mud flats, which may be considered as the price of the sedge marsh, were in fact given up by Forsyth to Jiishop, and possessed and held by the latter under the agreement. Bishop says, that after that he always considered them to be his, but this of itself amounts to little or nothing. In the allotment and division made to the plaintiff and his coheirs, the sedge marsh, which was thus obtained from Bishop, is said to be bounded on the north by the land of Bishop, which, if T rightly understand their position, can only refer to these mud flats. The plaintiff, therefore, as it were by his veiy title deed, recognizes and admits at the same time the right of Bishop to the mud flats. But then, in opposition to this, the plaintiff appears for some years past to be still claiming and occu- pying tl.cse same mud flats himself. It is in evidence that in 1849 he mowed them, and had always mowed them down to the river, but how far back in point of time that extends we cannot tell. It is clear, too, that the plaintiff still held them, and when called upon to give them up does not comply with that request, nor is there any evidence whatever that Bishop ever received, or had, in point of fact, possession of the flats, which probably at the time of the agreement were not capable of any actual possession In Doe c. d., Milbum v. Edgar, 2 Bing. N. C. 498, when the defendant claimed under a person named Gegg, who had been put in possession under a contract for purchase, and the question was wliethcr a possession of upwards of 20 years, under such a holding, was adverse, it was left to the jury to say whether the sale to Gegg had ever been completed. This case, I think, must be sent back to a jury that a similar question may be submitted to them. Whether the exchange between Forsyth and Bishop A-as completed, by the mutual surrender to each of the possession of the lands so exchanged. If the agreement ^Ilall be found to have been so completed, then the plaintiff will be entitled to the sedge marsh, and to maintain his action in respect of it while the right to the mud flats will be then established iu the defen- 946 HALLIBURTON v. MOLLOY. dant. But, if it shall be found that the possession of the mud flats was not surrendered in fact to Bishop, but was retained still by Forsyth, as the conduct of the plaintiff appears to shew, then he cannot recover in this action. I should be very much surprised if the parties do nut still decide such a matter for themselves, without the intcrvi ''ion of another trial. We must, however, make the rule for a new trial absolute, and, I think, as it is to ascertain n fact which was not before 1< ;<. to the jury, that it should be without costs. The other Judges concurred. llnle akso'utc, but without costs, owing to u dclicicncy in the evidence sivvn at the ^rial. '.i\f HALLIBURTON v. MOLLOY. April 8. Payment of rent quarterly is not conclusive evidense of a yearly tennncy. The Court will not, on a motion to set aside a venlict, give effect to an'olijection not taken at the trial, and which might have been remedied had it been then taken. One Philips, being the monthly tenant of the plaintiff, sublet the premises to the defendant, who paid rent to the plaintiff's agent at the rate of £20 per annum, at first monthly, but subsequently, for defendant's accommodation, he was permitted to pay the rent cpiartcrly, the receipts being signed " £. Duckett, Agent". On the yOtii November, the follow- ing notice was served on the defendant : — Halifax, aOth November, 1852. Mr. Valentine Molloy, — SiK, — I hereby give you notice that on and after the first of January next the rent of the premises occupied by you in IloUis Street, being part of Peeple's estate, will be at the rate of forty pounds per annum, payable monthly. Having given you verbal notice nearly a year since, and the premises having undergone an expensive repair, you will, if the increased rent don't suit you, be prepared to move, ••^s you arc only a monthly tenant, and this will give you notice according lo law. E. DlCKETT, Agent for Peeple's estate. This action was brought in summary form to recover five months in- creased rent as mentioned in the notice, and was tried in December last. The defendant proved a tender of ten pounds for half a year's rent to the agent, which was refused. Under these circumstances, DksBakhks, J., at the trial, gave a verdict for plaintiff for £16 13s. 4d. upon which judgment was entered. Lenoir now moves to make absolute a rule nisi to ^ct aside the judg- EASTER TERM, IS;")!. 247 niont upon the evidence, and contends, 1st. that there was no notice from the plaintiff, but from a third person, who signs not as agent of the plain- tiff, Maria C. Halliburton, but as " agent of People's estate", and no cvi- an7 to Afn. George Whidden was produced by that gentleman, and read in evidence on the part of the defendant. It xnho appeared by the evidence that the goods were, on the 28th Septem- ber, and before action brought, abandoned by the plaintiffs to the under- Avriters, who accepted the abandonment ; that the property in question was assigned by the plaintiffs to the New York Mutual Insurance Com- pany by the indorsements upon the bills of lading, before action brought ; that the plaintiffs had no interest in the property, and that thin action had been brought by tlie Company in the name of the plaintiffs by their cunsfjnt. The defendants, at the trial, objected that the acUon could not be maintained by the pxescnt plaintiffs. The learned judge withdrew that question from the consideration of die jury altogether, reserving it for the future decision of the Court. W. Johnston, on a previous d9u^% moved upon a rule nisi obtained last Term to set aside the verdict for the plaintiffs, and grant a new trial, on three grounds. 1st. The plniutiffs cannot recover in this form of action, because tro- ver is a possessory action, and, even if plaintiffs had a right of property Jn the goods, they liad no right of possession at the time of action brought. 2 Lill. 760 ; 1 Mod, 30 ; 4 B. and C. 941, 951 ; Cowp. 373 ; 6 Bac. Ab. 678 ; 7 T. R. 15. 2nd. The propeo-ty was devested out of plaintilFs by the abandonment, which occurred subsequent to the sale of the goods to the defendant, and previous to the demand of possession and the bringing of the action. The abandonment, although made subsequent to the sale, vested tlie property from the time of the casuality which gave rise to it. 2 Marsh. Ins. 602 ; Smith's Mer. Law, 350 ; 1 Ves. Sen. 98 ; 3 Bos. and Pul. 479 ; 4 E. 34 ; 5 M. and S. 79 ; 2 PhiL Ins. 328 ; G Pick. R. 431 ; 7 Cowp. R. 564 ; 2 Camp, 35 ; 2 Am. Ins. 11, 93 ; 9 E. 72. 3rd. The property was devested out of plaintiffs by the indorsement of the bill of lading to the underwriters. Smith's Merc. Law, 277; 4 Burr. 2046; 1 T. R. 205; 215, 745; 2 Id. 03; 1 Smith's Leading Cases, 258 ; 9 East. 507 ; C East. 20 ; Stark !J42. Cites also 2 Strange 1078 ; 8 T. R. 330 ; 2 Stark Ev. 846. Ritchie, contra, contended that the rule as to possession was laid down too broadly, as the absolute rigiit of property is not in all cases requisite whera there is u right of possession ; and that there was positive evi- r 2.jO STALKER r. WIER. lif (lenco «)f conversion in thin case. The ])roperty having been pohl to dcloMilantf), unil re-sold by tliem before iibandonincmt or tran.<aiid imont vests right of action in in- 8ur(frs retrospectively. If so, in the intermediate period the property was at the mercy of any intruder who chose to interfere with it. Sup- pose there were several insurers, sonic of them accepting the abandon- ment, and the rest refusing, who would bring the action ? These cases must occur perpetually, and the absence of decided cases on the point shews conclusively the universality of the practice of bringing the action in the name of the owner, and apportioning the proceeds according to the ccpiities. Dong. 2!)-l ; 2 IMiil. 410, 20. No cases at all conclusive have been cited in support of the rule, but, on the contrary, it is obvious that the action could have been brought in no other way. V Johnston, Q. C. in reply. The prineipli's on which our objections rest remain unshaken if the party having projierty must bring the action, and if tlu; ownership in this case is out of the plaintif}'. It is admitted that a bailee or other (puililied owner may bring trover, but there is no 64 MOONKY >'. HOSSOM. would have the same etfcctt as tlie enisino of un iiidoryemcnt on a bill of cxclmngo. llAi.inLiiTON, J. The principle hiid down in Clad- v. 7'fie Jluiidrcd iif BIylliimf, is of the wvy highest iviithority. It was decided hy Lonl JfdHsJield. (Iit> father and moulder of tho nieieMitilc law of Kngland. It was recognized and approved subsci(iieiitly hy I'xiylvi/, J. and Lord Henderson, and remains uncontradietcd and untiuestioned to the [trcsent day. It is <'onsistei\t with reason, and in my estimation it meets the argument for the defendant in the present case. DoKD, J. was absent on circuit. DksBakiu.s, J. coucurrcfl. Kulc discharj'ed. III!' w i If' MOONEY V. BOSSOM. Aiiril 17. Tlio (lecfmlnnt beins; imlhbteil to pJainlllF on a promi-jsory note, ami nlso foi- n, ?fpiirale debt, plnintift 05;coiUcil a letter ol' licon.-c in his liivor for the other (k'l)t, ami voservins; iliB note. The license, wliieli purported to be exccmcil by the ercditora gtiiorjilly, was in fact cxcentcd by plnintiiialonc. Kold that the license was iuefl'ectiial, ami did not bar plnintiiT's claim. This was a summary action tried before DicsBakuf.s, J. in last IMi- ohaclmas sittings, to rc(!over the amount of a promissory note from the dcfeiulaiit to llie plainlilf". It appeared that the note was given Febru- ;u'y 3rd, 18r>;J, for a horse purchased by the defendant from the plain- tiff, tmd that there was a further debt then due from the defendant for flour. That the defendant then, being in embarrassed circumstances, VCf|uested the plaintiff' to execute a letter of llcenRO for the remaining debt, but it was distinctly understood that the license was not to affect tlio note, to recover which this action was l)roiight. Tluit a letter of li- cense was aeeofdingly prepared, dated 10th February, ISoS, which the plaintiff executed, but which wa« not execuUuI by other creditors. At the trial the objection was taken that tie ro j; vation out of the license of the '.imount tor which this action was brought was fraudulent, and the lerrncd Judge being of that opinion ordered a nonsuit. Lynch, on a. previous day, moved to make absolute a rule obtained Ht the trial to set aside the nonsuit and grant a now trial, and argued that the plainliff'had executed the license merely to induce others to do f,o, but as no others h;id exionted it it was utterly valueh.'ss and inope- rative. In A'wy v. i^ii'/iardson, 2 C. M, and R. 122, a ph;a that [daiu- litf hud agreed to take a compobitiou was held had on motion for arre=-t EASTER TEKM, 1851. 25j on a hill le Jluiidii'd 1 liy l^ril 1' Kiiglantl. and Lord the present meets llic scluirjj'cil. Till lllso fol' .1 jlher l$ing 470 ; 8 E. 4 I.") ; Watson on Awards, 1;)8. As to the witnesses being examined without oath, he produced alHdavits shewing that no demand was made on either side tiiat they shoulil be sworn, and (•(intended that, if parties permitted tiie witnesses to be examined witii- niU being sworn, they could not afterwards object. Citts 2 Saund. IM. and Ev. i;5;{ ; 1 Com. Dig. 522 ; 8 East 52. Besides, this rule should have been moved for during the tirst four days of the terra. 2 Dowl. V. C. 245 ; H. and C. <;2!> ; 2 Dow. and Low. 2;J7 ; 2 (h. (.en. Prac. 121 ; 3 Bins;. 107. And tiie grounds for setting aside the award should liave beei, i -it specially in the rule iiiitl, and not generally for ir- regularity as '■•: this rule. Cimy v. J^cnf, 8 Dowl. 05 1 ; •! J{. tuirtie.< Iviiowingly permitted tiie witnes.M's to be examined, and even subjected tln'm to eross-exaini- jiatioD wiilMJUt being sworn, they must Ijo liuid ti* iiove coiisenti'il t<» their *«ing so examined, aiid the maliiiig of .~ii"-ii an ul.ijcction al'ier- wurds was a lireach of good faitii. If llic eliai'ge »• jicli tin- :irliitra(ors subseipiently admitt(!d iiad been brou^'iii to their iioIkn', atiil ai'cidentallv omitted by them, it would iiave bfeii a sullicicnt griii'imd tt** «.Htiusr a>Hile /lie award, bur this did not appear to be tlie eiwe. !•«• if th«'iv had been u gross mistake in ligurcs. K'lil"' disci ;u'''i'd. f I 250 iWURUOCII r. PITi. MURDOCH V. PITTS. April 17. Proof of ft promise to pay " ns soon as possible" is not suflicicnt to take a rnso out of the stotiiti! of limitations, without proof of defendant's ability to pay. Dissinliciitc ll.vLiiwinoN, J. This was nn action commenced on the 14th day of February, ISr).') to recover the sum of £168 15s. 7d., being the amount of an account al- leged to have been stated between the plaintiff, William Murdoch, Esq., and defendant, on the IGth day of February, 1847. The defendiint pleaded the statute of limitations. At the trial before IIalibuuton, .1. in the sittings after Michaelmas, the plaintiff's witness, in his direct ex- amination, proved an r.dmission of and promise, within six years before action brought, to pay a debt subsisting sometime previously, .and, on cross-examination, stated that " at the time of the promise defendant said that he had been unfortunate in business; but he said the account was correct, and he would pay it as soon us possible, and was sorry he was unable then to do so. Uis losses he said arose from his agent Imving neglected to effect an insurance for him according to orders. The promise was not qualified by a condition ofaodity. I did not take his words down, but those are tiic very expressions as far as T can recollect. He did not speak of means, for ha had no means. The impression on my mind was that he would pay it us soon as he was able, but nothing wan said about means. That was all that took place between us". Til'.' learned .Judge directed the jury to iind !i verdict for the plain- lilV, wliich they did accordingly, and grante H. and ('. I'll';;, mihI '.> Dow. and liy. .)").'», ,S. ('., whicii is tin; leading c.Tic. tlic words were, " 1 cannot pay the debt at present, Wt I will pav as soon as I can." Lor/l Ttnilcrden thus lays down tlir ])riiici[)lc which has since Itci'n followed, " I'pon a gi'iieral acknowbd-^mcnl, wlurt- nothing is sail! to picvcnt it, a general promise to pa^ may an^i ou"ht to be implied, but where the party guards his acknowledgment, and ac- companies it willi an expre<^s declaration to prevent aa^ such inipli9, "As soon as convenient." IValersv. Thanet, 2 Q. IJ. 7o7, " Whenever his circumstances migiit enable him to do so, and when called upon for that purpose." Dtivies v. Smith, 4 Esp. "4, " I think I am bound in honor to pay the money, and shall do it when I am able." A' Court V. Cross, 3 IJing. 32i), " I know that I owe the money, but the bill I gave is on a tlirce penny receipt stamp, and I will never pay it." Besfordw Saunders, 2 II. Blackstone 11 C, "Whenever he was able." Scales V. Jacobs, tl Bing. G38, " It was not in his power to pay, but as soon as it was he wouhl." In this case the Cliicf Justice said, "That the statute of limitations was not a statute to protect parties against loss of evidence, but to quiet claims. To sue a defendant when he lias slept six years over his rights — when time and misfortune may have disabled tlic debtor from discharging his obligation, is at once inirputous and anti- christian." Cites also 8 Ad. and El. 221 ; 9 Mee. and W. G2'J. Ritchie shews cause. Had defendant said as soon " as I am able," it would have been a part of the agreement, and, therefore, would qualify the promise. But " as soon as possible" is a very common expression used to signify that defendant would make exertions to pay the debt speedily. It is hardly possible to make a promise without saying as much as this. Accordingly, we find that, altiiough this phrase is so ex- ceedingly common, when parties arc apj)lied to for payment it has never been held to be a qualification. Thare are many expressions in the books which have been held to be qualifications, but this is not among them. The rule laid down in Taylor on evidence is, that there must be a cleiir and un(pialified admis^sion. Here the admission and promise proved in the direct examination were direct and simple, and in cross-examina- tion the witness, it is true, states that he said he would pay " as soon as possilile," but lie also states that " the promise was not (jualified by a eoiulition of ability." It is evident, therefore, that the witness under- stood the words in their ordinary acceptation, viz., not as a condition, liiit as words of ho[)e and encouragement to the plaintiff. In this respect tlie case is distinguishable from cases cited in Taylor on Evidence. A party sjivs " he will ))ay if allowed time." Here is clearly a condition, 'n aiioiher case tlie words upon which the plaintiff relied were coupled with an ex|)ressi(>n tliat defendant " would have nothing to do with the ■!i' itf 2 no ^11 ItDOCH v. PITTS. plaintifl";! claiiii." Tliciv! wns no promise in fliat case. In Tanner v Smart, tlic words were, " I cannot pny at present, but will pay as soon as I ean." In that rase Miere was no dear and explicit admission of tl.e debt. Hon; tiie defVn(hiiit expressly aihnitted the debt, and ex|n'. Al- though these exact words are not to be found in any of the decided ca- ses they are strictly analogous to the words " as soon as I am able" and similar expressions In several of the cases cited, and nuich stronger than " as soon as convenient," which was held sullicicnt to require proof of ability in Edwards v. J)on-ncs. It means as soon as I can, and nothing else. The word ywwvVc Is derived from the L;itin through the French. In the French It always Implies power or ability, thus "■Faire tout son possible" means to do one's utmost. Its meatiing in Latin Is the same as In '• Quid aliud possum nisi moerere autjlere." This is a Ciceronian phrase, and no word In the language can more strongly express EASTEll TERM, 1851. '2til ability than the word "possum" in tliis passage. Cites 2 Q. B. K. 757 ; Altnon V. IJill, decided in this Court in Trinity Term, 1851.* The Court now delivered judgment. Halliburton, C. J. It appears to me that in all its essential fea- tures tliis case resembles tliat of I'anner v. Smart, 6 B. and C, and, tlierefore, ought to be governed by the decision therein, which was made with mucli consideration, and witli a deliberate review of tlie many con- flicting decisions on the statute of frauds. Since then it has been held that whenever .an attempt is made to take a case out of the statute by proof of a promise, within six years before action brought, unless the promise is unconditional, the plaintift' cannot recover witliout proving the condition annexed to it to have occurred. Tiie decision in Taimer v. Smart, went ui)on very broad grounds. Tiiere the defendant pro- mised to pay wlien lie was able, and the Court decided that it was in- cumbent upon the plaintiff to prove the defendant's ability to pay, be- cause the action is founded upon the promise then made, for which tho j)rior debt is deemed the consideration. It was contended at the argu- ment of this case that the promise i)roved by the only witness who was examined, was positive and unconditional on his direct examination ; and that the declaration that " he would pay it as soon as possible and was sorry that he was unable then to do so," was extorted from him by tlie defendant's counsel, when he (the witness) was not aware of the use intended to be made of these words. The line of argument adopted to do away with the effect of them, was new to me. It was, in effect, that the Court were to confine their attention to what the witness had said on his direct examination, and to pay no regard to what had been ex- torted from him when cross-examined. To what purpose, then, is the time of the Court so frequently taken up by long cross-examinations, which frequently make a very different impression upon the mind from that which was left at the termination of the direct examination. AVo Al- * Almon v. IIiix, Trinity Term, 1851. In tliis case the plnintilT proved thnt the (lefendniit repeiitedly ncknowlcdj^ed the existence of a debt, and on one occasion, about two years previous to the triiil, upon being pressed to state what objection he had to the account, which had been previously rendered to him, ho pointed out two items to wliich lie oljjecied. Uut the witness by wliom this evidence was );iven also stated that the defendant ulimijs told him that he was not able to pmj. Verdict for plaintiff. l}i,is», J. in delivering the judgment of the Court remarked as follows, "Now, while the defendant admits tho debt, he states also his inability to pay it. Can wo say that an acknowledgment thus guarded and qualified raises an implied promise 111 ilo that which the dofcn Jant says he cannot do — pay when requested 1 It would bo wrcHtiiig language from its obvious meaning to give such a construction to it, and wiiuld involve a palpable inconsistency." It was also held in this case thnt payment into Court of r part of the plaintifT'i demand, does not take the case out of the statute of limitations as to the residue. Rule Rbsolntc for new trial. Counsel for i'laintilV. Ritchie. Counsel for Defcndunt, G. li, Youny. 262 MUUDOCII r. PITTS. ill willingly suppose tliiit the witness wtis not aware of the effect of the subsequent declaration that he would pay as soon as possible, S^c, for had ho been aware of it, it would have been dishonest in him not to have stated it in the first instance. It was also contended tliat the word pos- sible might apply to time, as well as to the defendant's ability. If so, that question should have been submitted to the jury. If applied to time, it might mean as soon as I can count the money and transfer it from my hand to yours, or as soon as I can go to my home and bring it from there, but can the circumstances which the witness detailed, admit of the inference that it applied to time, lie laments that he was unable to pay then, and st.ates that his inability arose from the negligence of bis agent, who had failed to comjdy with his orders to elfect an insu- rance. Under such circumstances the words, as soon as jjossible, can have no otiier meaning attached to them than as soon as I am able. The witness closes his cross-exiiinination by saying, " the impression made upon my mind was that he would pay it as soon as he was able, but nothing was said about means". Nothing was said about means in Tanner v. Smart, where the words, "as soon as I am able", were hold to make it incumbent upon the plaintiif to prove the defendant's ability. That case must govern this, and the rule to set aside this verdict and grant a new trial must be made absolute. lii.iss, J. This case appears, in my own mind, very plain. My only dilliculty arises from the strong opinion of my brother IIalibuu- ruN as to the effect of the evidence. We not need to look at impres- sions of the witness, although I understand the defendant's promise the same way. I understand the defendant to have meant to say " I will pay as soon as I can," which is the same meaning as the words used in Tanner v. Smart. Ileference has been made to Almon v. Hill. There was no promise proved in that case, but an ample acknowledgment ac- companied by a statement by defendant that he was unable to pay. I thought that this did not take the case out of the statute, but upon sub- seiiuent examination I concurred with the rest of the Court that this expression qualified the promise. Haliburton, J. I have considered this case well, and remain of the same opinion which I expressed at the trial. I do not look so much to the exact words as to general principles. There have been a host of irrcconcileablc decisions under the statute of limitations. The objects and principles of the statute seem to have been lost sight of by the Courts previous to the case of Tanner v. Smart, which decides that a mere admission is not suflicient, but there must be an admission from which a promise may fairly and clearly be inferred. This decision was necessary from the previous unsettled slate of the law ; some of the FASTER TERM, 1851. 2«n vlccisions linviiig held tliat nny promise at all was suflicient to take A case out of tiic statute, and one on the other hand went the monstrous length of holding, that a fraudulent man who admitted the justice of the claim, but declared that he would not pay it, should escape under the f^tatute, which was only intended to shield a man who may have lost ids receipt, as he would be very likely to have done after six years haposed with some shew of reason and justice. Cites Archbold's Tractice, and 11 M. and W. 101. ILvLLinuiiTON, C. J. The Court have already explained the neces- sity which exists for adhering rigidly to the rule rciiuiring parlies to be prepared to go trial when the causes are called, and that rule they fecjl bound to sustain, as it cannot be deviated from without placing the par- ties on unequal terms, and doing injustice to defendants, who are bound to be prepared when their cause is called. But the Court have done all in their power to prevent inconvenience arising from the operation of the rule, by offering to try any cause by consent of parties. The cause of J/otV v. The City of J/alifax wm ivicd in that way, and the Court were equally willing to try this; or any other cause, in tiie same manner. Had the defendant offered that course and tiie plaintiff" re- fused, he would have been in a better position in moving this rule. I consider that it was incumbent on the defendant to make the otter to the plaintiff, as tiie latter had evinced his disposition to try the cause, and, therefore, I would not grant tho rule, even if the defendant's wit- nesses had been in attendance. Uljss, J. concurred under the circumstances, especially as the defen- dant himself had not his witnesses ii>. utleiidance, and, tliertiforc, thi* cause going over was a benelit, instei d of ; ■( njury to him. Kule refused. mma^i IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I UilM |25 *i^ Itt §22 :S U£ 12.0 IL25 i 1.4 IJi& 1^ V (?/- Photographic Sciences Corporation 23 WBT MAIN STRUT WnSTER,N.Y. 14510 (716)«73-4S03 ^^^ \>> k ^ :\ \ -^ ^ V* v.. ^ :| ■^^.A ^ '^ 'jm CRIPPS t'. MARRIOTT. Johnston, Q. C. movea in the same cause for leave to witlidraw hi» replication, and both demur and plead to one of the defendant's pleas, for the purpose of obtaining the opinion of the Court as to the plead- ings required under the practice act. The statute requires the generi'l issue to be avoided, «nd the defendant in this action in answer to a count for not paying the plaintiff for building a house, pleads that he is ^' not indebted to the plaintiff as alleged.** This appears to be more general than is authorised by the letter or spirit of the act, which requires that the specific facts on which tl»e respective parties rest their case should be stated in the pleadings. The Attorney General contra. This is not more general than the ple« that " the defendant did not promise as alleged," which is authorised by the act, being the old general issue in »ssumi>sit in a shoi-ter form. Every plea under the old practice, and he presumed under the new also, must be sufficiently general to cover the whole cause of action. In t liis case there are two distinct defences to different portions of the plaintiff's demand, and this plea was inserted to uover botli. Bliss, J. In such a case the proper course would be to distinguish the items to which the separate defences would apply and plead to each separately in one plea, thus, " as to the goods sold and delivered, the defendant denies that he purcliased tike good» as alleged, and as to the money lent, the defendant says tha' it was repaid to the plaintiff." The ]ilaintiff, at least, would have no right to complain of this particularity, as it ^^ives him more information than he was entitled to under the for- mer piiictice, and 1 think it is the mode of pleading required by tlie net. The ])lfa tiiut the defendant did not promise is adapted to case» wliicli dcpoiid on special undertaking!). Pleadings amended by consent. CRIPPS V. MARRIOT. April ai>. l.tfurh. Cur plainlifl". after the decision in Brorm v. Wallace, moves (o • iisiliar^e a rule for costs of the term obtained by Sutherland in a pre- vious p;irt f dcviiiiion, that vessel put into Harhadocs not for the purpose alleged, but to seek n market, am) atterwerds sailed from Harhadocs to Triniilnd, and thence to St. Tho- mas, in search of a market. Held tliat the pica was bad for duplicity, as disclosing several distinct nets of deviation. A party who prefers lo answer a pleo to which ho might have demurred for aritn- mentativcness or duplicity, is bound to answer any material allegation contained in tlin plea. Plea in answer to an allc<;ntion of constructivo total loss and abandonment, shew- inir a deviation before abandonment, and a rcumpiion by the plaintiffs of the Toyujic after nbanionmont, and also of the control of the property, and its shlo at ano- ther port before reaehinfr destination. Held that pjaintiff was bounl either to de- mur for duplicity or to answer the deviation, the subsequent resumption of the voy- voyaiie, and also the sale of the cargo and abandonment of the voyage at St. Tho- mas, each of the«e being material averments. Plea of deviation does not answer a piiriial loss occurring previous to the devia- tion Declaration alleging a partial loss before going to Barbudoes, followed by a subsequent total loss after arrival there. General pica of deviation. Held that tho plea should have stated that the deviation took place before any loss occurred. fSencral plea of deviation, in answer to ii count stating that vessel went to Bar-, badoes as a port of necessity, where there was a constructive total loss and abandon- ment, muU aver that the deviation took place before any loss occurred, or other- wise must controvert the alleged necessity The count alleged that no vessel could he procured nt Barbadoes to carry on tho goods. Pica that plaintiffs made ii"< inquiry, and took no means to send on goods, held bad as not amounting to a denii,'. Whether in case of shipwreck the master is bound to send the goods to an inter- mediate port for re-shipment, when there nre no means of transport direct to de>ii. nation ofcarpro. if any such obligation exists, is a question depending on special cir- cumstances, and the "possibility of such means of trans|H)it existing ntcd not be sjie- cially negatived in a declaration to recover insurance for loss of goods. This cause was arpued on demurrer in Miciiaclmus Term, (/ounsel for plaintiff, Johnston, Q. C. and Fairbiviks, Q. C. Counsel for defendants, Ritchie. Bliss, J. now delivered the opinion oftlie Court. This case comes before us on special demurrer oti the ptirt of tiie plaiii- tifls to certain pleas of the defendants, and by the dofetuhints to certain I'cplications of the plaintiffs. The declaration is on a policy of insurance on a cargo of (ish from Halifax to Pernambuco and a market. The iirst count, after setting out the policy avers that after the ship sailed on her voyage, she was i\n much injured by tempests that she was necessarily obliged to proceed to a near port, and put into Barbadoes in a disabled coiitlition, and wholly incapable of performing the residue ol her voyage ; that by rea- Hon of the said tempest and the perils of the seas tiie goods com[)Osing the said cargo were wetted, damaged, and spoiled, and were, (rom these causes, when they reached Barbadoes, in a state of incipient decay ; that before the ship could have been repaired and could after that liave reach- ed I'crnarabuco, the cargo would, from the cause aforL';aiiI, have been 16 272 FAIRBANKS et. til. v. UOTON MARINE INS: CO. ii ^' i . destroyed, clmtrgcd in its nature, and worthless, and before it cotild' Iiave been transhipped and carried there in arty otlier vessel, it wonld, from these causes, have been so destroyed ; that so by tiic perils of the seas a total loss is accrued ; and that notice of abandonment was there npon given by plaintiff to the defendant. The second count more simply alleges that whilst the ship was on her voyage, the said goods were, by the perils of the seas, wholly lost ; and avers also an abandonment to the defendants. The tliird count is very similar to the first, and need not be more par- ticularly noticed. The fourth plea of the defendant is to the first count. It alleges tiiat the ship did not put into Biirbadoes for the purpose of repairing damages, but to seek another friarket for her cargo, and deviated thus to Barba- does from her original course ; that from Barbadoes she went to Trin-^ idad ; and thence again to St. Thomas in search of a market. That at St. Thomas the cargo was sold without any survey or examination, or its condition being known. The replication to this is, that the ship went to Barbadoes in prose- cution of her voyage, for the preservation of her cargo and for repairs, and not for the object mentioned in the plea. To this the defendant de- murs specially. That the plea itself is bad, as being double, I do not doubt. It meets the averment in the declaration, that the ship pat into Barbadoes from necessity, by asserting that, on the contrary, she went in there in search of a market. If that were ao, it was a deviation which at once put an end to the policy, and to the plaintiff's cauo>e of action. If, howevef, the ship had from necessity, through stress of weather and in order to repair damages, put into Barbadoes, she was bound to pursue her voyage, if it could be done with due expedition and in a direct course, to her ultimate destination. The' plea, then, in as- serting that she afterwards went to Trinidad, and again to St. Thomas for a market, and there sold her cargo, shews further deviations from her voyage. But if we look to the count to which this is pleaded, we find that it sets out several circumstances from which a constructive to- tal loss is asserted to have taken place, and that thereupon' notice of abandonment was given by the plaintiff to the defendants. The latter part of the plea, then, offers to this, argumentatively at least, an an- swer, — and in this view contains certainly a material allegation. The plaintiffs, I think, if they did not demur to this plea for duplicity and argumontutiveness, as they might have done, were bound to answer, if they answered at all, every material averment in it. This is the gene- ral rule in pleading. 1 Chitty,515, Steph. Plead. 206. Thus in Bol- ton V. Cannon, I Vent. 271, it is said — " Unless the party demurs for douWeness, he '\s bound to answer all the matters alleged. So in Eyre v. Shelly, inM.HwdVf. 271; Farke, B. rcmtwks "thjftthe plea would i" Mu. KASTER TERM, 1854. 27.1 be undeubtudly 1)nd for duplicity. The replication also would be bad without doubt, if it answered only one of two grounds of defence". The sixth plea is also to the first count. It states that Hfter the ship bad arrived at Barbadoes, she sailed again, without any examination into the state of her cargo, in search of a market to Trinidad, and thence to St. Thomas, where the cargo was sold by the master, who, as super- cargo, was the plaintiff's agent. Here tlicre is at least an assertion of the ship's having again failed and deviated from her voyage, — and alsu aed, they put an end to what had before taken place, aud on which the plaintiffs rely. The plea, indeed, might be considered on answer to tiie replication, but the Iptter is no answer to the plea. The seventh plea to the first count is almost identical with the sixtl plea, and the replication to it the same as the replication to the other. Tite nineteenth and twentieth pleas are to the third count, and with their replications follow pretty nearly the sixth And seventh ple.as and ,tlieir replications. The observations which liave been made on the replication to tiu; sixth plea will apply, thei-efore, to all tliese, and tlie same judgment must ba given in all, in favor of the demurrer to tliese replications. I turn next to the plaintitf*'s demurrers. These are to the 1.3th, 14th, 16th, and 27th picas. The 13th plea is to the second count, which simply alleges a total loss by the perils of the seas aud an abandonment to the underwriters. To this the plea answers that after the commencement of the voyage to Pernambuco, the sliip, with her cargo, proceeded to Barbadoes, thence to Trinidad, and thence to St. Thomas, where the cargo was sold by the master in whose charge it had been placed by the plaintiffs, and that the voyage was wholly abandoned, and that the ship deviated from lier voyage, by means whereof the policy was put an end to. J think tills plea is double and therefore bad. It relies, in fact, on fe r> 2;4 FAIRBANKS rf. ai v. UNION MARINE IXS. CO. three distinct acts of deviation, each of which migiit vacate the policy and defeat the action. Mr. Ritchie's argument was, tliat nil these fact* do but establish one proposition — a deviation. It is perfectly correct that whenever several matters must necessarily be stated as the consti- tuent parts of one defence, or as mere inducement to the fact relied oi> ns an answer, that will not make the plea double. lint it is equally true that if it contain two matters, cither of which would be a complete answer to the action, and the one is not necessary to the statement of the other, the introduction of both will make the plea double. It will not, I take it. remedy the defect, that the two facts may lead to one and the same conclusion. The present case may tierve to illustrate the rule. If the ship had been compefled by necessity, and so was justified in de- parting out of her course, to go to IJarbadoes, and had afterwards, with- out cause, been guilty of a deviation to Trinidad, these two facts might have been well stated. They would have formed but one deviation and one ground of defence. The departure to Barbadoes would have been but introductory to and explanatory of the deviation from Bai'badoe» afterwards, which it mipht not without the other be easy to state. But here an independent and perfect deviation in itself, to Barbadoes, as well as others to Trinidad and St. Thomas are alleged. By the first, if true, an end was at once put to the policy: if the first deviation could not be supported, the second or the third might be equally a good bar. They stand, therefore, as distinct, unconnected propositions, each, om; as much as the other, being an answer to the count ; and each may re- quire, and possibly in a ditlercnt way, to be replied to. One of the fa- miliar instances in the books to shew that distinct matters cannot be pleaded together is, that the defendant cannot plead several outlawries. Yet two or more instances of outlawry do not appear more to violate the rule than two acts of dtviation. P^ach single outlawry or deviation is a full answer, and two acts of deviation do not more constitute one single proposition, because one general conclusion may be stated of both, than two instances of outlawry, which still only establish the fact that the party was outlawed. But the pica is double in another particular. It ."cts out not only this threefold deviation, but a sale of the cargo and an abandonment of the voyage, whicii ai'c distinct facts, and may amount to a defence though there had been no deviation. Each may require a denial — may possibly admit of a different excuse or justification. They arc. however, all material facts, and, as we have seen, must be severally replied to, if replied to at all. The plaintiff is, therefore, well warrant- cd in demurring to the plea. The 14th plea is very nearly the same as the last, and must follow it» fate. The ICth plea is to the third count. It is simply a defence to the ac- tion on the erround of an nnwarrantable deviation. If the count to which " i KASTKR TEKM, IHil. it U plunder liJiil Itccn in tlii? common form, tlecinrinj* for a loss witlioiit the Mutnmcnt of other pnrllcnliirs us the second count does it muy be douStcd whetiier this plea would have been sufflcient. A deviation put:^ nn ci.'d to the policy from that time, but can have no efTect upon any loss which may have previously taken place. It would seem, then, that if it i.i to amount to a good bar to the action, it ought to negative the fact that any loss had occurred before the deviation on which it relies. As this defence formerly could be, and generally was, given in evidence under the general issue, such a plea may not be readily met with, but now since the new rules in England, this inus>t be specially pleaded, and we have a plea of this kind in Hamilton v. Sliedden, 3 M. and W. 60. The declaration was for a total loss on a cargo on the homeward voyage. The plea alleges that before the said cargo was lost, the ship, without any sufficient cause, did not proceed on her immediate voyage, but de- viated, whereby the policy was wholly avoided. There is also a further plea, that before the loss the ship %vas unreasonably delayed and detain- ed. There is no decision in any way touching the form of the plea, and therefore this is certainly no authority on that point, but we see from it the opinion which the pleader entertained of the necessity of thus aver- ring that the deviation was before any loss had taken place. When we turn, however, to the particular count to which the plea is put in, I can- not doubt that it is insulFicicnt to meet it. This count sets out that the ship, after she had sailed on her voyage, was greatly damaged by the perils of the seas and tempests, and compelled to put into iJarbadoes ; that the cargo was, by those perils of the seas, greatly damaged, and from this and other causes which are enumerated, it alleges a construc- tive total loss and an abandonment ; that is, besides this total loss, a partial loss is therein shewn to have taken place 1 efore the ship put into Barbadoes. When the fact is thus asserted, if the defendants intended that the deviation on which they rely was this same departure to IJar- badoes which the plaintiffs say was necessary and justifiable under the circumstances stated, the defendants should have answered the fact of the previous partial loss, which is thus also brought to their notice. It does, then, appear to me that even if the plea without this allega- tion were sufficient in other cases, here at least it should have asserted that the deviation was before any loss had occurred, for without this it does not answer the whole count. But the plea does not allege that this putting into Barbadoes was without excuse or justification. It ignores altogether the facts stated with respect to this in the count, and passes them by without notice. It merely alleges that after the ship had sail- ed on her voyage with the goods on board, she deviated from her said voyage without any sufficient excuse. That she might have done, and yet the departure to Barbadoes have been strictly justified as alleged. It cannot, indeed, be collected from the plea whether the putting into ri6 FAIRBANKS et. al v. UNION MARINR INS. CO. ill 'I m A I r Bnrbrtdous as nn net of necessity is controverted, or whether that or some other net of deviation is relied on as a defence. It is perfectly consistent with tliis general statement in the plea of n deviation, that it was subsequent to all the events whicJi are stated in the count, and even after the siiip hud an;ain left liarbiidoes. It may be assumed that it was 80, for it is a general rule that a plea which has two intendments shall be taken most strongly against the defendants. As if in trespass the defendant plead a release without saying when, it shall be taken to have been made before the trespass was committed. 1 Ch. PI. 404. The plea, therefore, in every view seems to be no answer to the count. If it is, it is only argumentatively so, and is bad. The 27 th plea is clearly bad. The plaintiffs assert that no vessel could bo procured at Barbadoes to carry on the goods to their destination. The defendants answer that they never inquired for them and took no means to send them on. This evades ihe question and proposes a matter wholly immaterial. Of what consequence is it whether the plaintitl'did or did not make such inquiry, or (as the plea goes on to allege) that there were vcss<>ls there, if there were none there, which could take on the goods ? This is what the count had o^aserted, and this the plea does not deny. Neither the pk-as, then, nor the replications wh'.ch have been object- ed to, can, in my opinion, be sustained ; and the plaintiffs and defendants will botii be entitled to the judgment of the Court on their respective demurrers. In the course of the argument on the last plea (the 27th), an objec- tion was taken by the defendant to the 3rd count itself, to which this plea applies, inasmuch as it avers that no other vessel could then and there be procured to carry on the cargo to Pernambuco, whereas, it was contended, if the cargo could have been sent on from Barbadoes to some other port, and there other vessels could be found to send it on to Per- nambuco, this should have been done, and therefore the declaration should have negatived that it could have done. The point was rather incidentally taken, and by no means fully argued ; it nevertheless opens a question of some nicety. Whether, when a vessel, from stress of wea- ther, has put into a port of refuge, and no means are to be found there of sending on the cargo directly toils destination, it ought to be sent on to an intermediate port, that it may be there forwarded, must depend at all events upon circumstances. The certainty that the means of re-shipment will be found in such other port — the distance or contiguity of that port — the expense— 'he state of the cargo — all the facilities or the difHculties of such a proceeding — and probably many other circumstances which the inquiry would disclose, must be taken into account. It can scarcely, then, be properly considered as a question of pleading, and is one altogether of evidence alone. All, perhaps, that can be expected MICHAELMAS TRftM, 18.11. 2ta t t on such n point in a declaration liko this, is to assert generally that no means of transport existed at Barbadoes for sending On thu cargo to I'ernambui'o. That will not be a denial merely thnt there were then and there ony means of sending on the cargo dtrectlj/, but thnt there tvcru any means of sending it on in any ivny that the law would require that it should be sent on. 'riiis, I think, may bo taken to be the pur- port of the averment here. If the case went tatrinl, and the issue turned upon this, the plnintifFs, I conceive, would not ic permitted to limit the meaning of this ovcrment lo tlie existence of vessels nit Barbadoes to carry on the cargo to I'ernamfbuco directly, even tlunigh strictly con- strued, this might be the correct import of the words. They should be construed most unfavorably for himself. He must be taken to have meant that which would alone give efTcet to his statement, that there was a constructive total loss. This ho deduces from (among other facts) the circumstance thnt there were no other vessels at Barbadoes which could carry on the cargo to I'ernambuco ; and he must have meant therefore to deny that they could have been sent on in any way which would prevent this from being n consti iii'tive total loss. But if, on the other hand, the defendants wcrO not satisfied with the averment as it stands, and considered it nut suillcicntly positive or certain in this respect, I do not say whether or not he could sustain such nn objection ; but it could only, if nt nil, be on special demurrer for this cause, and cannot bo taken advantage of under this dertiurrer whicli enables thent only to go back to subslantial defects in any earlier stage of the pleadings^ Judgment accordingly. MICHAELMAS TERM, mi. FALCONER v. SAWYER, et al The Court will review verdict ncgntiving fraud in an agsignmcnt of personiaf properly, am! set it aside when contrary to a strong prcponderation of evidence. The insertion of the usual capias ad satisfaciendum oinuse will not vitiate an exe- cution against a party wJio has been discharged from custody as un insolvent debtor. The language of the insolvent debtor's act of 1846, which permitted a plaintiff to take under execution property subsequent!)/ acquired by the insolvent, held not tO' restrain a pluintiii' from taking under execution goods fl-aodulcntly assigned by the insolvent previous to his discharge under the net. An ..ssignment of goods to a trustee, for the benefit of certain specified creditors, gives no legal right to those creditors, unless assented to by them, but the property remains subject to the control of the assignor, who may at any time revoke the trust. Quere. Whether creditors, to signify their assent, must execute the •siignmenf, or whether their assent may be implied from other circumstancea. ill { ! 1 !;.),! 278 FALCONER r. SAWYEH. Where personal property is ftssiirned Imnn tidf to pay a delit tluo the trii'ifeo, wlio «rct'pt-< the trust, its revocation iiiav lie implied from 6ulisc(iiiciit coiuluet of the par- tics wholly iuconsistent with the trust. This was an action of trover bronght against John J. Snwi/rr, sheriff of Halifax, and Alexander Janiex, as the attorney of the plaintiff', in a cause of il'i/se v. Donoghuv, for sellinjif niulur execution in that cause goods in the possession of J)onog/ine, which the present plaintiff claimed under an ussigninent from Donw/hue to him previous to the levy. Plea not guil- ty. Defence that the assignment to plaintiff was fraudulent and void as against creditors. Trial at Halifax, Easter, 1851 , before Dks Uauues, J. sind a sj)ecial jury. The assignment given in evidence on behalf of ])l!iintiff was dated 12tli jMarcIi, 1811), a few days prior to the triiil in Wi/se v. Donor/hue, which resulted in a verdict for the phiintiff. In consideration of a debt of £50 Jhnoghiie conveyed to Falconer all his goods and chattels, con- sisting of his stock of licpiors, horses, carts, and household fii-niture, in trust to sell the property " as soon as convenient, or as he shall be able to dispose of the same," and out of the proceeds to retain the debt then due, and any additional amount that might be due to Falconer at the time of sale ; next to pay several other debts mentioned in the schedule, amounting in all to £22 ; and the balance to pay over to Donoghue. It a,.|icared that in May, 18 19, Donoghue was arrested, under execu- tion, at the suit of Wysc, and obtained his discharge under the insolvent debtor's act, upon production of the assignment to Falconer, and tifter undergoing a month's impri. jnmcnt by order of the Chief Justice, on the ground of the violent injury which be had cf)mmittcd. In June, 1850, a part of the goods assigned being still in Donoghitc's possession, were seized under execution, and sold by order of the defendant, James, to satisfy IJ'yse'jf judgment, in opposition to a written notice from the at- torney of Donoghue protesting against the sale, iind were bought in by Donoghue, in whose possession they remained at the time of the trial. After motioii for nonsuit, which was refused by the learned Judge, the defendants proved the judgment in Wgse v. Donoghue, nignad oth May, 1849, and the subsequent execution. The defendants also proved that the goods had remained in the possession of Donoghue, from their assignment to Falconer in March, 1849, until their sale under Wi/se's ex- ecution in June, 1850, that he had during that period occupied the same premises and conducted the same business, — that of a tavern keeper, — as formerly, and had used the furniture, worked the horses, and traded with the liipiors, ales 110, s. .V21 ; 2 M. and Kob. 539 ; Martindak v. Booths S b. and Ad. 401 ; 1 'J'annt. ;381. The execution in tliis case would not avail as against goods in jiossos- fiou of Donoffhuc previous to his discharge under the insolvent debtor's act, which only gives an execution jigainst goods ** subsequently acquir- ed". Wysi\ if he wished to look to these goods, should have taken an assignment under tlio act, and not having done so, he could not after- wards interfere with them. The acknowledgments iA' Falconer, subse- quent to the making of tiie assignment, of his having been paid were not admissable, as they did not shew that the deed was fraudulent in its in- ception, but the reverse. Story on sales, 440, s. 514. And the credi- tors not having executed the deed is no objection to its validity. Gow 33. It was also contended that there was no preponderating --vidence, and if there w ere it would not avail unless it could be shewn that the jury ■were deceived upon some (juestion of law. 8 C. and P. (>10; 3 Moore, 11; 4 B. and C. C.li ; 3 Wils. 45; 1 lb. 22; 4 M. and S. 102; 4 Moore and Scott, 295 ; 4 liing. 408 ; 1 IJos. and Pul. 155. Jo/instoii, Q. C. admitted that there were some suspicious circum- flances at tirsi view of the case, but these had been met by direct and lonclusive testimony of there being a substantial consideration, and that the bill of sale was really intended to operate as a conveyance of the jioods to Falconer, and was re'.ied on by him, and this evidence was re- cognized by tlie jury and allirmcd by their verdict. As to the deed being revoi'abie by tiie debtor, he contended that this objection was not taken at the trial, and therefore could not now avail even if well found- ed, lint there was an interest remaining in Falconer, because he wa* responsible to the creditors of Donoyhue, jind he had an interest in th«- jiodds commensui'ate with that responsibility. 'i'lie statute restricted the creditor to taking goods subsequently ac- quired, Ix'cause the taking of the body was at common law a satisfaction nf the judguuMit. The statute gives a pnvilege to the creditor of look- ing to the poods subsequently acquired. It does not restrict the plain- iin'> rir;lits. but enlarge* thfrn, and its meaning cannot be rxfcndcril MICHAELMAS TERM, 1851. 5«1 I iK'Vond tli« words used. But if the execution lies ngninst tiie good?, it funitot lie iigiiinst the body also, as the body is protected from futui-i nrrt'st by the statute. Tlie execution in evidence whiolj commands the .sheritr to take the body is therefore irregular and void. In euch ease, the capias ad safisfacioxhim siiould l)e omitted, and the of- Acton v. Woodgate, 2 Mylne end Keane 192, the Master of the Rolls says, " It is established by the authorities referred to that if a debtor conveys property in trust for the benefit of hiti creditors, to whom the convey- ance is not communicated, and tlie creditors are not in any manner pri- vy to the conveyance, the deed merely operates as a power to tlie trus- tees which is revocable by the debtor, and has the same effect as if the debtor had delivered money to an agent to pay Lis creditor?, and before »ny payment made by tho agent, or conimunieafion by him tothecrcdi* MICHAKLMAS TKRM, 1851. S85 "It lor, had recalled the money so delivered." Tliis opinion is cited in Smith V. Keating, 6 M. G. and S. 13C, by the counsel on both sides, as well at by the Court, as the correct rule of law on the subject. With respect, then, to at least all the creditors who were not made acquainted with the assignment, Donoghne still retained the power and control over the property, and h« certainly exercised them to the fullest extent. Two, however, of those creditors, Duggan and Glendenning, appear to have had notice of the assignment, and it remains to be consid^ired whether their case, and that of the plaintift' as trustee for them, differs on that account from that of the other creditors to whom the assignment was not communicated. The language of the judgment in Acton v. Wood' gate, it will be seen, is somewhat different from that of the other cases which have been cited. The Master of the Rolls appearing to give some weight to the fact that the assignment had not been communicated to the creditors. He proceeds to say, " In Garrard v. Lord Lauder- dale, it seems to have been considered that a communication by the trustees to the creditors of the fact of such trust, would not defeat the power of revocation by tlin debtor. It appears to me, however, that this doctrine is questionable, because the creditors being aware of such a trust might be therel)y induced to a forbearance in respect of their claims, which they would not otherwise have exercised." The commu- nication to the creditor, which in Garrard v. Lauderdale seems to have been considejedinsutRcient to deprive the debtor of his control over the property, was a formal written one to him, from the solicitor of the trus- tee, acquainting him witli the trust de^d, and that his name was included in the schedule. Now, in Acton v. Woodgatc there was no communica- tion at all to the creditor of this fact, and, therefore, this doubt thrown out by the Master of the Rolls in the latter case, on the decision of thia point in the other was not called for, and was rather extra judicial. Supposing, however, tiiat the language had been still more decided, and that it had, in fact, overruled Garrard v. Lord Lauderdale on this point, which can hardly be said of it, I am still of opinion that in the present case, no sucli effect can be given to tlie circumstance that these two cre- ditors were made acquainted with the assignment. The mere commu- nication that he is included in the assignment can of itself, I take it, give the creditor no right in respect of the trust fund which he would not otlierwisc possess, but only as he assents to it, and so for becomes a party to the arrangement. It is true that if nothing more appears it may be a question wiicther he has not assented to the benefit to be de- rived under the assignment, and perhaps that may in such case be im- plied ; but an assent, cither express or implied, on the part of the cre- ditor to the assigemcnt, must be that wliich alone can give him any right imdcr it. This may be collected from the observation of the Master of llio Rolls, just cited in Arton v. Wnodqnfr, "that the creditor, bring awnr* t 386 FALCONER v. SAWYER. ii ' ■i , ; of tlie trust, miglit be therefore induced to ii forbeanince of his claim." Indeed, if this were not the case, there wouKl be no iniituality nor equity in the pk inciple. Tiie creditor might still look to tlie trust fund or to thu debtor at his option, wliile the latter wouhl be exposed to a continuing personal liability, having his property all the tiino tied up by the as- signment beyond his own control, nwaitinc; the right of the creditor, who might never choo-se to exercise it. If we look, then, to the evidence re- specting these two creditors, we shall fmd that not only was there no acceptance by them of the benefit under the trust deed — no assent to it — no reliance on it — no forbearance to the debtor in consequence of the knowledge of it, but the converse of all this may be gathered from the evidence which they themselves give. Duggan signed the deed as a witness, not as a party to it — of itself not without some weight in considering this. point. He says, it is true, in his direct examination, " that he was content to take the securi- ty of this deed for his debt". But did he, in fact, so take it ? lie says afterwards that he can't say that he knew that he had any legal right to look to Falconer for his debt, and that though he knew, when he signed the deed as a witness, that his name was inserted in it as a creditor, hu had always, in his own miad, looked to Donoghue for his debt ; that after the execution of the deed, he had actually applied to him for payment, and had never applied to Falconer lor it. Glcndenning states that he was informed that his name was included in the .assignment for thirty shillings, which he said ought to be more, that he never applied to Fal- coner for payment, but that he has applied to Donoghue. Under these facts, I have myself no hesitation in saying that the mere knowledgo by these creditors of their names being included in the assignment with- out acquiescence thereto on their part, — they still looking to their debtor for payment, — leaves the case as to them precisely as it stands witii respect to the other creditors. The plaintiff, then, when this property was taken out of the posses- sion of Donoghue, had ceased to have any personal interest in the assign- ment, — his own debt having been already paid. The other creditors never had any right under it, but the property still remained subject to the power and control of the assignor, and these he exercised in the fullest and most absolute manner. He could not, indeed, take back the property, for it had never passed out of his own possession ; but this continued retention of it by him, and the manner in which he dealt with it — utterly inconsistent with the trust created by the deed — amounted, in my opinion, to a clear revocation of the trust. And tlie conduct of the plaintiff himself, and his final declaration when the seizure was made, that he had nothing to do with it, shewed his acquiescence in it, if that were at all necessary. I consider, therefore, the plaintiff to iiave had no right to the property as trustee or otherwise, and consequently that no action could be maintained by him in respect of it. The verdict in this case must be set aside, and the rule for a new trial be made absolute. Rule absolute. rJIOVlNCE OF NOVA SCOTIA. IN CHANCERY. BKFORE illS EXCELLENCY' SIR JOHN HARVEY, CHANCELLOH. Assisteil by tho Honorable Buenton Halliburton, Chief Justief> iiud tho Honorable William Hill, one of the Assistant Judges of the Supreme Courtk JAMES B. UNIACKE v. THOMAS DICKSON, ct at. The stiUates 33 11. 8, c. 39, and 13 Eliz., c. 4, wliicli giive the Crown a lien nport tho real cstiita of certain public officers as a security for tho fulfllnlent of their bonds, are not in force in this Province. Tlie revenue laws of Kn<;liind arc not applicable here, except in so far as our le- gislature has seen tit to adopt their provisions . The whole of the English common law will he recognized as in force here, ex- cepting such parts as arc obviousfif inconsistent with the circumstances of the country ; while on the other hand, none of the statute law will be received, except such parts us are obviously apiilicuble and necessari). The increasing lupse of time since the the settlement of the Province should ren- der the Courts more cautious in recognizing English statutes which have not been previously iuiroduccd. Judgment delivered February 19th, 1848. [The Honorable the Master of the JioUs having been engaged in the oause, wlien at the bar, for the complainant, took no part in the pro* feedings.] In this case the bill was filed against Dickson only, but was amended by order of tiie late Master of the Rolls, and the Attorney General made A defendant Jis well as certain judgment creditors of Dickson, who suf- fered the bill to be taken pro confesso against tliem, and the only ques- tion for decision was between the mortgagee and the Crown. Tho cause was argued 'n December last by James Stewart, Esq., and Tho- mas N. Jeffery, Esq., for the complainant, Uniacke ; and tlie Attorney General, and /. W. Ritchie, Esq., for the Crown. His Excellency now pionounced his decree in favor of the complain- 18 28ft UNIACKE r. DICKSON. lilt, in accordance with the vicw» expressed by hifl legal advisers in tlic i'ullowing opinions, in wliich the iitcts of the case fully apneiir. Halliuuhton, C. J The proceedings in this case commenced under an ordinary bill of foreclosure, which was filed by the complainant on the yoih of August, 1845, to foreclose the equity of rBdeinptioii of n mortgage given to liini' by the defendant, Dickson, on the "JSth of De- cember, 1 8^7, of certain lands, &c., in the county of Picton. The defendant himself has never appeared, (although the usual pro- cess has been served upon him,) to oppose the prayer of the bill ; but «)n the '20th of January, 184(5, the Attorney General interposed on be- half of the Crown, and tiled an answer, stating that, prior to the date of the mortgage, the defendant, Dickson, had been appointed Collector of Impost aiid Excise Duties of the District of I'ictou, which rendered him an accountant to the crown under the 18 Elizabeth, cap> 4. That, upon entering on that office, he had given a bond to the crown, in the sum of £1000, for the faithful discharge of his duty, which bond, under the 33, Henry 8, cap. 39, became a debt of record, and Mndcred all his real estate liable to the claims of the crown under the »ame bond, as he had become a defaulter toia large amount. The two statutes are set out in the answer, and the right of the crown to interfere between these parties is therein entirely founded upon them ; although, at the argument, it was contended that these statutes gave the crown no new rights, but merely facilitated its remedies in enforcing the rights which it before possessed. I cannot view these statutes in that light. The old principle that the crown can neither take or part with any thing but by matter of record, which, as a general rule, is so wholesome and safe, both for the crown and the subject, was partially infringed by each of these statutes. By the 33d, Henry 8th, bonds to- the Crown were placed upon the same footing with statutes staple with- out having their publicity ; and by the 13th of Elizabeth all the lands held by the officers therein mentioned were bound for debts subsequent- ly incurred even when transferred to bona fide purchasers under sales made at a time when no debt was due by the vendor to the crown. I would not be understood as presuming to question the wisdom of the legislature who passed these laws. I am only meeting the assertion that they gave no new rights to the crown, but merely provided it with additional remedies to enforce rights previously possessed. Ik'fore we enter, therefore, upon the consideration of many points which were submitted to the Court by each party, upon the presum)i- tion that these statutes wore in force in this Province, we must decide upon the main objection taken by the complainant's counsel that they arc not in force here. To what extent (he laws of the mother country prevail in the colo- ife-l'i ■ IN CHANCERY. 28!) nies settled l»y lior descendants*, is a question which hiis oftcasionod much ilisctission, without producing any rule upproat'liin" to precision fur our guidnnce. Tiie hmgiiagc of elementary writers upon this subject is couched in such general terms, and qualified by sucii numerous exceptions, that (hey perplex rather than enlighten us. Our excellent Blackstone, for instance, says, in his commentaries, (lit vol. 107,) "It hath been held that if an uninhabited country Itedis- licable to its 3t)0 VNIArKK v. DICKSON. V m It ih 1 colonial conilUinii." ImU'cil tliu disttiiictitin pxista in the vrry niitiint of thin{rs, 1111(1 in ilorivod IVoni tliu origin of lliv two roilcs. 'I'lif coinniou law lias its foiimlations in tliosu generiil andinimiitahtc iiriiiripIi'sotjiiM- ticc wliicli should i'o.a;ulato the intcreonr! gislature for nearly a century, fully empowered to make such laws as the interest of the colony has required. llefore I enter upon this part of tho subject, I would observe that al- though this cloim on the part of the Attorney General is theoretically founded upon what is termed a right of the crown, it is not, in fact, :i contest between the monarch and a subject, involving questions arising out of the prerogative of the one, and the privilege of the other, as it would have been in the days when these statutes were passed. The king has no longer that personal interest in questions of revenue that he formerly had, and therefore, if the public interest should require that our provincial revenue should be further protected, in case those statutes do not extend to us, no fear of increasing the royal prerogative would prevent the local legislature from adopting all necessary guards and pre- cautions. In continuing his observations npon the extension of the laws of Eng- land to the colonies of Ihe empire, Itlackstone 8.iys, in the same page from which 1 iiavo already quoted, " What shall be admitted and what IN CUANCKUY. I»t rrjfctod, tit wtiat tininn, nnil uiulvr wiint rostrirtiono, miiat, in cmu of Uiiiputts bu tlociilcd in tlio first iiHtunoe hy tlioir own pruviiicitil judicii- Inrc, Hiilijoct to llio roviitioii iiiiil control of lint Uiii;^ in count-ii." Jt 'a not contcnduil tliat oitlior of tiicau statutoH Imvu ever ri)ceivearly nettleinent of a colony, when the local lo^riHluturc hafl been just called into existence, and has itit attention engrossed by the imme- diate wants of the members of tho infant immunity in their new situa* tion ; the courts of judi(!ature would naturally look for guidance, in do* riding upon tho claims of litigant)*, to the general laws of the mother country ; and would excreine greater latitude, in the adoption of them, than they woidd l)e entitled to do, as their local legislature, in the gra* dual developement of its powers, assumed its proper position. Kvery year should render the Courts more cautious in the \doption of lawn that had never been previously introduced into the colony, for prudent judges would remember that it is the province of the Courts to declare what is the law, and of tho legislul re to decide what it ihall be. Impressed with this view of the distinct functions of the legislature and tho Courts at this period of our colonial existence, it does appear to nic, that if additional fiscal regulations are necessary to insure the duo collection and payment of our provincial revenue, it would be more pro- ])er to apply to the legislature to adopt such as they may deem prudent, than to re(|uire from the Courts the adoption of English statutes, which were passed centuries ago under sovereigns, who were suHiciently care- ful of the preservation of their power, and by parliaments who, to say the least, paid as much attention to the prerogatives of tho crown as they did to the privileges of the people— statutes, the rigours of which have been diminished in the mother country during the reign of our present gracious queen. (5 Victoria, Cap. 11.) Should this course be pursued, our legislature can introduce similar ameliorations of these statutes, if they think it iight to adopt them. — The Courts have no such power ; but, if they adopt them at all, must adopt them in all their rigour. The 33d of Henry 8, if enforced here as it now stands in tho English statute book, would, to a great extent, be destructive of that security to purchasers of real estate which our registry acts were passed to ensure. Tho 13th of Elizabeth wotilil partially have that cflec ilso, but not so mischievously, because the otliocrs liable to its pruvisioi; would be generally known. liut bonds to the crown, in security f( : the payment 202 UNIACKE r. DICKSON. of duties, are given all over the province by persons engaged in trade, and others, and no one could he sure that he was safe in purchasing real estate if that statute should now be adopted. 'Diere is another objection to the adoption of these statutes which I think has some weight. The Supreme Court has generally considered that when the local legislature has legislated upon any particular sub- ject, relative to which Knglish statutes had previously existed, that the colonial Courts are to be guided by the provincial and not the English statutes in deciding questions upon such subjects. Thus, upon t- claim of a mother to succeed to the personal estate of her deceased child, to the exclusion of her other children, the Supreme Court of this province decided that she was entitled to do so, because our legislature had re- enacted the provisions of the statutes of Charles the 2d upon that sub- ject, but had not (at that time, although they have since,) re-enacted those of 1st James the 2d, which latter statute had passed before we had a local legislature. Now, our legislature have had the subject of the securities necessary to be given for the safe collection of the revenue under their considera- tion, and have passed laws upon that subject, wliieli direct that the offi- cers appointed to collect iti shall give bonds, in which they shall be join- ed by sureties, for the faithful discharge of their duties ; and that those who import good ^ liable to pay duties to the crown, nnder the acts of this province, shall not only give bonds for the payment of those dutitw as they become due, but shall also give warrants of attorney to confess judgment upon those bonds ; a measure that would have been unneces- sary if the statute of Henry 8th was in force here, for that statute would liavc made the bonds themselves debts of record. If tiiesc securities are not sufficient, the legislature, and not the Courts, should be a[)plied to to remedy the evil. For these reasons I am of opinion that these statutes, on which tiie Attorney General hnn founded the right of the crown to interpose in this case, are not in force here, and consetpieptly that riglit cannot be sus- tained by them. liut although the right of the crown is entirely foinided upon the sta- tutes, in the answer whie and was an accountant to and of the crown, and u receiver of money imprest or otherwise for the use of Iler Majesty. That the receipts of the ollicc of Collector of Excise Duties at Pictou fiince Diclsons appointment have greatly exceeded £300 per annum. That Dichson, immediately upon iiis appointment as Collector of Impost .tnd Excise, executed to his late ]\Iajesiy King William the 4th a bond in the sum of £1000, pursuant to law, for the faithful performance of the duties of his said otl'ice. Tlie bond is then set out. That Dickson has continually held the oflice of Collector of Impost and Excise, from the time of his appointment to the date of the answer, and that in effect he is a dd'anlter to the crown and in arrear as such accountant and re- reiver in the laige sum of £1.000, for monies received by him in his said oiRoc. The answer llien in part sets out tiie imperial statutes of 33, Hen. 8, c. 39, and 13 Eliz. c. I, and claims, tiiat under one or both of these sta- tutes, the lands ol' tlie defendant Dichsoii were bound to make good to Iler ^Majesty any debt due by him to Her Majesty for monies received by him lor Iler Majesty, in his said oflice of Collector of Impost and Ex- cise, afier the date of his appointment or after the making of the bond to Iler Majesty. The question tlicn l^^ore »s is, do tiiese statutes extend to, and are they binding in this province ; for if they do so extend, then I think, that the defendant falls within tlieir scoi\e and operation, and the de- scription of persons therein named. The statute of Henry, section ■"»0, enacts — " That all obligations and !«pecialities which siiall be made for any cause or causes touching or in ,'iny wise conccirniiig tlie Kinir's nvnt Itoyal Jl'.ijesty or his Heirs, or to his or ihcir use, commodity, or behoof, shall be n>iule to His Highness .and to his heirs Kings in his or their name or names by these words Domino Jiecfi, and to none other i)erson or persons to his use, and to bo paid to His Iligliness by these words sole, ciilem Domino Roffi lioerKcl, vcl rxecuioribus tiiis, wit!» otiier words used and accustomed in common obligations ; and that all such obligations and specialities so to be made, Khali be good and etleclual in the law to uU purposes and intents, and shall be of the same nature, kind, (piality, force and elfect, to all intent* and purposes, as the writings obligatory taken and acknowledged ac- cording to the statute of the staple at "Westminster, had, at any time be- fore the making of that act, been taken, used, exercised, and executed apain«f any lay per«on." Now, prior to this statute of Henry, this dob* IN CHANCERY. 197 if due by the defendant, Dickson, in England, was but equivalent to a simple contract debt, and was not a debt of record, ami the crown could not have issued an iinmediate extent. It follows, therefore, that unlca.i the statute extends iierc, the debt in this cusp stands upon the same footing as one of simple contract, imd to recover it, the crown stands alone upon its common law right. Ihit for the statute, therefore, tho claim of the complainant must ])revail. IJut then the Atloruey General insists, tl\at if there be any doubt, a« to the right of the crown nndi-r the statute of Henry, such right is clear under the statute V-\ Eliz., <;. t — DicksDii being one of the description of ollicers named in th:U statutf, which enacts (hat — '* Eor the better .se- curity of the Queen's 3Iajesty, her heirs and successors, against such as shidl have the receipt and charge of the money and treasure of Her Highness, her heirs and successors, it is declared and enacted, that all lands, tenements, prolits, commodities and hereditaments, which any treasurer or receiver ni or l)elonging to any of the (Queen's Majesty m Courts of th« Exchequer, Wards and Livcjries, or Dutchy of Lancaster, Tr. asurerof the Chamber, CofVerer of the Household to tlie Queen'i Majesty, her heirs or successors, Treasurer for the AVars, Treasurer of any Fort, Town or Castle where any Garrison is or shall l)e kept. Trea- surer of the Admiralty or Navj-, Trea-urer, Under .Secretary, or other person accountable to the (Queen's Majesty, iter heirs or snec'essors, for uny oUice or charge of or within the Mint, Treasurer or Receiver of uny sums of money imprest or otherwise for the use ol'tlie Queen's Ma- jt;sty, her heirs or successors, or for provijions of vidua', or for fortiii- cations, buildings or works, or for any otiie.r provisioii'^ to be used in any of the oflices of tiie Qiieea's Majesty's Ordn:iiu-e and Artillery, Ar- moury, Wardrobe, 'i'ents and Pavilions or Revels. Custoiiier, Collector, farmer of Custotns, sulisidi(v<, im|iosts or other duties within any Port of the Realm, Co!l(;clor ol' tli'3 toa'li-i <»t' tlr^ Clergr, (' (Hector of any Rubsidy or lifteen. Receiver (Jencral ot th(! Revenues of any comity or counties answerable in the receipt of the lv\.che(]uer, or in the Ci)url of Wards and liiveries, or the Duchy of Ijiiiica^ter, Clerk of the Hamper, now hath, or aiiv time hereafter shall have, within the tim^i whilst he or they or any of them shall remain aeeoiintalile, shall for the payment and satisfaction to the Queen's Majesty, her heirs and successors of his or their arrearages at any time hereafter, to be lawfully aeeoruing to tlio laws of this realm, adjudged and deteraiimjd upon his or their account .(all his due and reasonable petitions being aUowed) be liable to the payment thereof, and be put antl had in execution for the payment of such arrearages or debts to be so adiu money upon this mortgage knew that the defendant was then ailefaiilter to tlie crown. No allegation in the answer, nor any proof tiirit llie complainant was aw.-'.rc of the defen- dant t)i> n being collector of excise. Tlie complainant thorerore pre- sents . i.self to ns as a pi» in le delen- on; jirc- mo;;(iy i'. Wil)- of ,'cd. It nployeil Iinpm-iul statutes standing in the wny of a perfect title, or even been nwaro of their existence. It must, tlierefore, assuredly, be admitted to be an ex- tremely hard case upon the complainant, if he should be deprived of the advantage of that security, upon the faith of whose validity he parted with his money. No laches, nor want of proper prudence and caution in searching out the defendant's right to convey can be attributed to the complainant. To be sure we cannot permit the hardihip of the case to «veigh with us if the law be clearly against the complainant : still I do think, in a doubtful case, it ought to liave its effect and where a very grievous injury will be done to the subject in a contest with the crown. Then upon the best consideration I have been able to give to the question I am of opinion that neither the statute 33 Hen. 8, c. 39, nor that of 13 Eliz. c. 4, extend to, or are operative in this province. There is confessedly no precise rule, nor can we expect to find any direct de- cision, as to wlnt imperial statutes extend to the colonies discovered, peopled and sottlod by British subjects. The (piestion seems to be, and indeed must of necessity be, left open to be decided in each particular colony and case, by tlie Courts established in those colonies. A law that would be very fit, advantageous and applicable to one colony, might be very itiapjjlicable to, and unfit for another — one, very requisite in One colony, miglit not be at all required in another : nay, might be very nnfit lor it, and injudicious to be adopted. Tiie j/eneral rule on this subject appears to be tiiat wherever English subjects discover and pos- sess tl)cniaelves of an uninhabited country-, thej' carry with them such 6( the English laws then in Ibrce, as are applicable and necessary to their situation and the condition of the infant colony ; as for instance, laws lor the protection of their persons and property. Wherever an Eng- lishman goes he carries with !iim as much of tlic English law and liber- ty as tiic nature of Iiis situation will allow. Lord Mansfield \n the caso cf Lindo v. Lord Rodney, reported in Note 1 to the case of IjeCaux v. Eden. Do\ig, o',M, sajs, "the colonists take all the common and statute law of Enjrland applicable to tlioir situation and condition." Klackstone in liis commentaries I vol. 10(!, tiius lays it down — " Besides these ad- jacent Islands (tin.' Islands of Jersey, Guernsey and others) our more distant riantations in America and elsewhere are also in some respects subject to the Englisli laws. Plantations or colonies in distant countries arc eiiiier such where tlie lands are claimed by right of occupancy only, finding them desert and uncultivated, and peopling them for the mother country ; or wiien already cnltivatod, they have been either gained by conquest or ceded to us i)y treiiiies ; and both tlicse rights arc founded upon t!ie law ofn.ifiire, n.- at lens! upon that of nations, lint there is a diti'erenee between tliese two species of colonies with respect to the laws by whicii they an: bound ; tor it iiatli been held that if an uninha- bited country be discovered and planted by English suljjecto, all the 800 UNIACKK v. DICKSON. English laws tlicii in being, which arc the birth-right of every subject, nru iinmeiliatoly tli(?re in f'urcc. Hut this, [tliat is tlie doctrine laid down in Sulk, 411 and OUO, whutn IMacl^.stonu quot«;s,] must be understood with very many and wary groat restrictions. Sucii eolonists carry with them only so much ofliie Kiiglisii hiw as is applicable to their own si- tuation aiiJ the condition of an infant colony : sucli, for instance, ns tlio general rules of inlieritance and of protection from ])ersonal injuries. — The artificial refinements and distinctions incident to the property of a great commercial pi.'oi)!e, tlie laws of jiolice and revenue, (sueii especi- ally as are enforce. I by pemilties.) th;j m).U) of m iinten;v'.ii.;e for the es- tah ished clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor conv(;nient for tloem, and therefore are not in force. What shall be a.lmitted, and what rejected, nt what times, and under what restrictions, must, in case of dispute, be decided, in the first instance, by their own provincial judicature, subject to the revision and control of the King, in council." Blackstone therefore dissents from tlie unrestricted position in Blank' ardv. Galdij, Salk 411. Cliitty on Prerogatives of the Crown, page 30, appears to adopt the doctrine as modified and nestricted by IMackstone. lie says, " If an un- inhabited country be discovered and peopled by English subjects, they are supposed to possess themselves of it for the benefit of their sovereign, and such of the Knglish laws then in force as are Dpplicable and neces- sary to their situation and the condition of an infant colony; as, for in- stance, laws for the profedtion of tlieir persons and property are imme- diately in force. AVIurever an Englishman goes he carries with him us much of English law and liberty as the nature of his situation will allow." Chitty refers to an anonymous case in 2 P. Will. 75, and to the Qneen V. Mai/or and Aldermen of Norivich, 2 Ld. Raymond 1245, in which last case Lord Holt refers to Dlunkurd v. Gahbj. Clarke's Colonial Law, page 7, is merely a repetition of what Black- stone lias said on this subject, and from whom I iiavo quoted. The whole t<;nor and spirit of what all the writers on this subject have said, and of all the cases relating to it, in my mind leave the question under consideration widely open, and that whether a particular statute does or dots not extend to a colony is to be decided in each particular case by the colonial jiidicaturct, subject to au appeal home. W'hen this colony was lirst setlkd and possessed by Eng'ish subjects, were these two statut(.'3 applicable and necessary to the condition and state of t!i!; first o>'cuj>iei's and possessoi's ? Did the state of the c 'or.y require t.iem lo be in Torre 'i 1 do not eo.i-vive tin' question to be whe- ther the wlieie, or some small part of tliese nets niiglil not, as it were, be pressed into the bcrvice, but whelljjr they are necessary to our want* IN CHANCERY. tot and requirement!!. Looking then at the matter in this point of \W\r, I Cjinnot say tliat these statutes were or are necessary to the state and condition of Nova Scotia — to its wants and rccjuircinents. In tiiat great country where tliese statutes were passed, the riglits of the crown were considered sutfieiently protected under the common htw until the time of tlieir enactment ; and, in an infant colony lilve (Ids, nt its first settle- ment, and even now, tiie rights of the crown will find ample and adequate protection under tiiat same law, without requiring the aid of these strin* gent statutes. There is no danger, I think, of its being prejudiced in the collection of its revenue, or otherwise. Up to this period I liavo never heard of any complaint or dilficulties upon the subject. In England where the crown revenues were so great, and derivable from so many resources, and where its dues necessarily passed through so many hands,' it might be very proper to clothe the crown with greater authority and security to collect its revenues. But how could that be necessary here on the first settlement of the country, when the crown may be literally Baid to have had no revenue from any source, nor any debts due to it. But how has the colonial legislature silently spoken upon this subject? If it had been thought tliat these statutes were wholesome, necessary, and appliciible to us, I cannot but think that our legislature would have eo said by re-enacting them. The legislature in its very first session, in 1758, did re-enact many provisions of English statutes which were thought applicable to our situation, and from time to time such re-enact* ments have found their way into our statute book, but we find nothing of these statutes being re-enacted. Does not, then, this fact shew in' strong colors what the opinion of our legislature waa and has been on the matter, for, as I have remarked, if occasion had called for it, there undoubtedly would have been a re-enactment. As far, therefore, as the opinion of the legislature may be gathered, these statutes do not extend to us ; and, I must add, that on a reference to our statute book, it will be found that very particular attention has been paid to the securing the debts of the crown under our various revenue acts, and particularly under those of a later date. The mode of securing, and the manner of collecting, are precisely pointed out, so that it is manifest the subject of the crown debts has been under the consideration of our own legislature.: I allude to this, not as shewing that our legislation would abrogate the- Etatutes of Henry and Elizabeth, but as an argument that they did not extend to us. Thus far, then, as to the legislature. What, then, has been the opi- nion and practice among the profession ? Cases must have arisen ia which these statutes, if extending here, might, and probably would, be called into operation ; and yet this is the first occasion on which the at- tention of any Court in the province has been called to them. The con- trary has not been asserted ; and no doubt the fact is, that the writ olf !:! te'ili lOfl UNIACKE r. DICKSON. ExtPitt never iasued in tliis country. The ordinary jiroccss of our CoiirU lias invariably been tlie mode oi' colleoting tlio crown debts. Wiiy then Lfts tliia been so ? I apprehend merely bocause no inconvenience l»a« ever been found to flow from following tl>e ordinary and pievailinp; prac- tice—no detriment to the rights or interests of the crown. This non twer, if I may so speak, ot either of these statutes, this want of any re- fereace to them, convince mo that the profession, at all events, never considered them ns having any elHcacy with us. Njw the interest in this case is entirely local, it alone concerns the province and the support of its government ; no portion of this money goes into the private coffers of the sovereign, or into the imperial trea- sury ; and when circumstances shall demand it, doubtless we shall pass our statutes of Hen. and £liz., as was done in Kns^land. But let us suppose that our legislature in 1758 had re-enacted these two statutes, or that portion of tlie:n wliich relates to the mattor in Irnnd ; could it be said they were necessary, or rather could it be denied that their enactment would have been absurd, inasmuch as there was nothing for them to operate on. Tlie question, therelbre, after all, is a narrow one, and may be snid to be more addressed to dur judgment as prudent and right judging men than as lawyers and judges. My opinion, therefore, is based upon this consideration, that neither of these statutes was applicable and necessary to our jitate and condition when the province was lirst settled, nor at any time since, and that the rights of the crown are amply protected and se-:- cured by the common law. "With regard to such olliuers as 3fr. Dick- son, the crown can never complain of a want of knowledge as to their liabilities to it, because, annually, the accounts of those collectors aro submitted to tlie government, and to tlie inspection and audit of both houses of the legislature, and are duly reported upon after examination by committees. Under the view I have taken of this case, it will bo quite unnecessary to inquire what effect our registry acts have on it. I um therefore of opinion that the complainant, James B. Uniacke, in entitled to have the equity of redemption in the mortgaged premises fore- closed, and to have the premises sold, and the proceeds arising from the sale paid over to him, sufiicient to pay off the amount of the principal uonoy, interests, and costa. Judgment for compIainant< CASES ARGUED AND DETEHMINED I.N Tin; SUPREME COURT 01'' Tllk: niOVINCE OF NOVA SCOTIA. MICHAELMAS TERM, 1854. JONES V. WILLIAMS. November 21. Murdoch for dufeiulant moves for a continuance upon affuluvit of tbs absence, in the West Indies, of a material witness. Hoioe objects that tho suit had been commenced and the writ served two montlis ago, and the evidence nii"i!it have Leon obtained in time for this term if diligence had been uaed. Murdoch contra stated that the cause Iiad not been at issue until tha 19th October. Court. You might have applied earlier at chambers for a commii- Bion, but as the wilness is in tiie West Indies and it could hardly hava been returned to the present sittings, we will grant the rule. Kule granted. TUPPER V. WRIGHT. November L'l. Fairbanks, Q. C. moved for relaxation of costs upon an afSdavit, which the Court refused, a? the .application had not been first mado t!» the judge who \nxo<\ thf hill link: Iffu.U'ri 304 t'KKlUlIlUX r. DAMKLS. COrr r. KlTl'.K. Novt'iiibiT 'J I. The C'oiii'l »in iinl iillow toinisi'l to iikivc i'or u iil'w trial ii|miii luitvc gruiilud on ririMiit, UNct'pt on Ji)il^i'>i' niiniiii's nt irial. In I'lisi' of verdict for pliiiiuill' t'onit will pcniit nile nisi for new ti-irtl, if tlui jiulc* who irii'il tliu c'liti-ii; runsiilci's tliiit a ink' oiij^lit to puss, but not » ritlv iiiv fur u iiuu- luit, cxi'i'pt liy cuiit^int. Ejuctinent at Amherst — vcrcliirt for iilaiiitiH". Stewart now niovcsi, ptirsutint (o leave, for u rule nhi to set asiilu thir Tenlict. Mi'Cttlli/ ohjvct^ that Sti'inirt is moving from liis own iiotttd of th» ♦rial, ami not the Jmlge'd minutes. CoLRT. We must liavo the jiulge's minutes of the trial. Il/VtiBriiTOx, J. who tried the etuiso being of opiitioik that the rnl» Aisi ought to pass, Stetoart elaims a rule nisi \\i: n nonsuit. Coinr. AVhun the judge who trios ii cause consiilers that a rul« «ught to piiss it is usually granted as a mailer of courre, but wo cannot give you a rule for nonsuit utiless by consent, its a party cannot be non- suited except by consont. liiile niiti for new trial. CRElCiHTON; d. itl V. DANIELS, Abacondimj Debtor. November 21. .\n attmliineiit iiyainst uii abiiconiling debtor ilocs jiot bimi property not nciH;*!!/ Ic'.itjil upon. If a sliorilF Ims improiicvly oiniKcil to levy, the remedy is by action ayaiiist .'liiis anil not by rule lo nmeml bis return. A mere nutieo to a slicrilVof an intended motion lo amend \\\a return v. ill .JOt en- title him to costs of atlidavits to oppoic motion for n rule /i/si. Lynch moved lor a rule to direct the theritf of Yarmouth to amend his i'cturn to a writ of attachment. It appeared by the allidavit.s that the plaintirt''s attorney being instructed that the absent defendant was possessed of real and persomd estate, gave the shorifV the following in- structions, "Will you please have the enclosed writ of attachment levied, &c., and, as we wish to bind atiy reid estate the defendant may have, please hav<; the usual appraisement made of it, and have it registered lo^ethcr with the encio.'^cd copy of the writ. Please inform lue wh«i MlCllAKLMAS TKRM, 18Ji. 801 ;iro onr pn^spt'cls vi' ^ctliiiif our iiioiic}." Tliut ln^ intt'iidt'd iliat tlio ^In'l•i(^Hll()llI(l Icvv on liotli real and [XMSoniil propcily, l»nl tliatllio hIk;- rilV had i-t'hirncd tliat \iv liad Icvicil on tlic real cstalu wiiliuiil nii'Mlionin); ilic |)fr.«onttI cslalc, and upon application to tlic nlKTill' to nnicnd Win rt'> turn tilt; ^lieiill' replied that In; could not do so, as Ik; had not, in fact, levied on tlic persoiml property under tin- plainlitl"-* writ, hat had since lovied on it niidei' a sah-eipn.-iil altiiclinicni at the >uit ol' Mvssrs, JJelf «.^ Jiliii/i- a;;aiiist th<' same dcleiidiiol, wlicreupon noticu wn.Sf^ivon tothu j-heriir tiiat the pre.-ieiit a|>plii'y.tion would he made. Li/iK'/i contended ihut the writ IkmiihI holli real and pert'onal c.^tnt« from the time oflts delivery to tla; .-.herilV, and that iiu was buund to I9- vy upon it under the iiislrnction.-i accomiianying llio writ. Without hearing the AHurnvg Genend coii/ra — llAi.i.iurinox, ('. .1. An attaelimeiit does not hind pwporly upou tnere delivery to a sherill'as an exectition does. In the first ease lever . The Attorney Gineral produced alRdavits from the sheriff in defence <^f his conduct, which had come to hand since the. previous motion, and contended that as the sheriff 's conduct was attacked ami notice given him of the intended application to the Court, he was justitied in pre[iar- jn;» his defence and entitled to the costs of his allidavits, and citerl prae- Cice act, see. l-SO. Eitrhie. contra, arjfued that this was not similar to the casii wliere a |):irty had leave to move for a new trial, as in that case the motion wa* in the cause, and opposite party was in Court bound to make pri para- tion. This motion was not in the cause, hut directed against a stran- ger who was not bound to answer until a rule nisi was obtained uud II !'■ Ml J It 1 iiii tot BAIINABY V. GARDIXER. served, and that the 186 section of the Practice Act expressly confined the giving of costs to cases wiierc rules were opposed, whereas there was no opposition in tl;is case. IIALI.II3URT0N, C. J. The sherifl' is no more entitled to costs than a defendant who has merely received an attorney's letter. T?M">3, J. If the alTidavits had been here when the motion was made I think the application would have coire within the equity of the sta- tute ; but lliey were not !■ .re to be used in oj;position to the rule. IlAi/.BrrCi ON, J. I iLInk tliO case is not similar to flic inception c( an action. A niei'e notice of action v.'il! not entitle the det'rndant to costs, buL ti.irt is a diiVenint case, an absent man cliarged with miscon- duct is not bound to wjiit uniil a rule is ol.itained ngainst Lim. DoDD, J. Tiie notice did n^t conijiel plaiiitifl'to proceed, and, if he had not moved, the s:lie:'ili' could not have succeeded in this apj)lication. DesBarpts, J. TI.c leUer did not compel the phorifF to come into Court. He ehould have waited until called upon by a rule. ' Costs refused. BABN.^BY cf. al v. GARDINER cl al Kovember C2. An ontcr of «r';«i''in!! for rcmovnl of n pniijirr. prantoft upon insufficient proiiml', rMiiiui I.e Misihiiifil 1/: itn.l.-n iim ITiuis omii'c d lo I'c vcrilifd In tuie liic oidcr |i!H!.cd. All riincliiiC'iit ilml |>!t ci'i liiii^s uf nil ii,i, i ior Cciift shall !ic tiiinl lU'i.'^ not Iiil^o flwnv t!ie Jiui.-iJu'tiou otilit; Siiriitiuc Conn lo rcvi'jw tliuii- jirotctdiii;;* ui)(ii.r wiii ni ailiitnirl. \\\&l moves to i^ ■! aside an order of the Court o' Sessions for Queen's County fur tlie n.'aioval uf a pauper family Irom the Tov. n^ihip of Liver- pool to the Township of Milton, with the subsequent proceedin<^s th'-r*^- on. This ordur was Iiroiii^ht up l)y a v.rii ai certiorari and a rule nm jl^ranted at Liverpool. It a'-'peared by the examinatiun of the panj)er, upon which the order for rtaioval was grur.ted, t'lat he had gained a scltli.nient in the Town- shrp ot Liverpool, but ulihough he hi.d residt d se\ eral years in Milton it did not appear from the eivamination that he had gained a settlement there. C Jforse in shewing caure cfTercti lo produce afTalavits lo vcnCj n M-ttleinent in Milton. • Coi'HT. Tl.i.l will net intl the dilfifullv, You nuft sItcw thntth* i.l illCHAELMAS TEKM, 1854. •07 order was rcgnlarlv granteil. If the order was irregularly^rantcd it cannot now be suituined by alTidavit of iiicts not previously verified. J. W. Johxslon.'iwwv. contended Jiat the Court had no jurisdiction, a* il." proceeding of the sessions lu'o final by Kev. Stat. eh. 89, 3. 9. Court. Many of the statutes enact thai procecdi.gs of inferior courts shall be final, but that does not take away tlie jurisdiction of thi« Court 10 review tlieir procctdings under writ oi certiorari. Rule absolute. LKSSEE OF JOHN T. ARCHIBALD v. BLOLS. November 25. An estoppel miiy be KustuiiicJ ii|)on a direct and irresistible inference from tho words of 11 deed. 'J'lic iiiirelinsei' of a tenancy liy the curtesy is not estopped, by roreptinp n convcv- mice, from dis|>uiiii;^ tlic exi^ieiiic of ihiit e>liiH'. as a^.iitist the lieir of llie deceiised wife, lint ibi iicre]otiiiice of t!io (•uuvey.iiiee. unless e.s|il;iiiied liy oihtr lesliinonv, ii A very >troii;^ (tilimi'itoii of llic existence of tlie e>tiite wliirli ii professes to convey, and of the lille of ilie beas iilier the teriiini:ilu);i of lliiit e-tiue. The Court wdl not direei a jtiry to presume ilie aeeeptanco of a trii^t. created fiy devise, wIrmi ibeie li:is L'eeii tiliy years ndver^-e i os>e--ioii, as ilyain^l tbe trustees, tliere licini; no evidence of siieli aecepiaiice, and all llie fads beini^ Oj)i)osed to such presumption. 'i'lie '-"nurt will not .'.end a special veidict liac'-. to a jury, to deciuu upon a pro- sumption wliieb they would mil be ju'.,iitied. in tini.iuL' 'i'iie adveise possession of a widow, cisliii (jita Inat, i\s nr,''''nst the Iru.stcea, will fnnre for the benelit td' lier children, bviny also asluifijut: tiiisl, and cannot be set up ngainst tlieir title. This wa.s an action of ejcetincnt tried before Rllss, J. in December 1854. The lessor of the pliiintiff, Ju/in 2\ Archibald, was the son and only child of Charles Archibald, by his wile Martha, who was one of the children of Jolm Stewart of llalilax. deceased. The action is brought for the r(.'cov(!fy of the share of the stiid Hfar;ha of certain real estate in the city of Halifax, known as the Country iMarliet, which belonged to tlie said John Stewart. John Stewart, by his last will and testament, dated ^i^ih December, 1800, devised all his real and per.sonal estate to h' , wife habcUa SteW' art, Charles J/ill, and Winlwurth Allan, atid 'heir heirs, for ever, and to the survivoi- of them and the heirs of siteii survivor. In trust, among other things, to permit and sutler his said wife, if she remained unmar- ried, to possess iind enjoy all his real estate, together with certain part of his per.sonal property, in full confidence that she would apply the ^ame towards her own support and that of her children, until the young- est was twenty-one. And thci in further trust to sell the real estate, and (urn tho perspnal estate into money, and pay on^-thirdof tho whole 308 AllCHlBALl) •• LLUIS. to his wife, and UivicJo the residue equally among his children. The testator then provided for the contingency of his wife dying before tho youngest of his children came of age, and for that of liis children dying before his wife, liut if his said wife should mari-y again before the fi- nal division of his estate, then he directed that she should cease to be a trustee under the will, and that the other trustees sliould thereupon hold the whole of his real and personal estate to them and their heirs, in trust, immediately after the marriage of his said wife, to take the same out of her hands, and to sell and dispose of the whole and invest the procoeds, the interest of which they were to permit his wife to receive for the maintenance of herself and his children dur'.ng their minority. And then he proceeds to direct how it was finally to be distributed, after the youngest child should come of age. He then appointed his said wife and the two other trustees to be executors of his said will. The testator died very soon after the making of this will, leaving his said wife surviving him, and five children, one of whom, Martha., mar- ried about 1810 Charles Archibald. She died in a few years, leaving the lessor of the plaintifi", John T. Archibald, the only child of tliat mar- \' After the death of the testator, who up to that time was in the actual occupation of the property in question, his widow, /stiie//a Steioart,con- tinued to reside there and occupied it with her children. She after- wards married John Steele, and with him continued still to hold and oc- cupy the property. In 1826 John. Steele appears to have purchased tho shares of the other four children ol' John Stewart, as he obtained con- veyances from them separately of their respective shares, and on tho 8th August in the same year by indenture made between the said Charlet Archibald and John Steele, the former conveyed to Steele in fee "All tho right, title, interest, claim, property and denumd, which he, tho said Charles Archibald, now hath as tenant by the curtesy in right of his late wife Jiitrtha Archibald, formerly Martha Stewart, or which he may hereal'ter have in any way whatever in to or upon the estate of the late John Stewart of Halifax, the father of the said Martha Archibald, de- ceased, lying and being" (then follows the description, the same being all the real estate of which the said John Stewart died possessed in the town of Halifax). To have and to hold all the right, title. Sec, of him, the said Charles Archibald, which he now hath, or can, or nuiy hen'after have in any way whatever, in to or upon the same." There is then a covenant for quiet enjoyment •' of the right and title, Are., which the said Charles Archibald now hath, or can, or may hereafter have, to this pro- perty, without the lawful let, suit, ice, of him, the said Charles Archi- bald, or of any person lawfully claiming tho same from, by, or under flim." And there is another covenant for further assurance on the part of MICHAELMAS TERM, 1854. m the said C'/utrles Archibald, his heirs and assigns, and every other per- son lawfully jlaimin^ by, from, or under him. Charles Archibald died in April 18o3 ; the present action was brought after his death, and the property souglit to be recovered is the same as th.it described in his deed to John Steele. John Steele is dead, and we may presume his widow is also dead, although it does not appear in the evidence. The action is in reality defended by the heirs of Steele. A verdict was taken by consent for tlie plivinliff, subject to tlie opinion of the Court upon the case. The cause was argued in Kastcr term upon a rule tiisi to enter judg- ment for the defendant. Ritchie and McGregor for plaintift'. Johnston, Q. C. and W. Johnston for defendant. W. .r '"ii.' ' :> support of rule relied on the following objections to the pliii::''ii"s ti , : — 1. That the real estate of John Steicart, having been devised to trus- tees for the benefit of the children, to stl! and distribute the estate, and the sale not having yet been made, th« legal estate is vested in the trustees and not in the cestuis que trust, who cannot, therefore, maintain ejectment. In this case there was no evidence that the trustees had de- clined to act, !xnd, therefore, the principle applies. 1 Cruise 462, 3, 7, and 503 ; 1 Ves. S(Mir. 142 ; 2 P. W. 146 ; Hill on Trustees 23o. 2. The real estate being in trustees to be sold and the proceeds distri- buted, the interest of t!ic heirs is to be considered as personal estate, and, therefore, went to her husband, Charles Archibald, who conveyed to Steele. The cases are nunierous and conclusive to shew that land di- rected to be turned into money is to be considered by the Courts as money and not as real ■ ;;!afa. 1 Jarman 5'?.3; 7 anfl .'>-3C; 1 Brown's Ch. Ca. 499 ; 5 Vi'i. v.>6 ; : Aoane 653 ; 2 Atlc 452. 3. There is no ten.ncv 1,^ r c curtesy in a '.rust estate. 1 Coke 29 a. 2 Vern 530; 1 Cruise -iv-i 4. The statute of limitai v is a bar to the action. The trustees have always had the power to defend the title, and, not having exercised that power, the statute runs against them, ^"ven if a conveyance could be presumed to have been made to the chi» •! n. the statute commenced running against tliem as soon as they came oi ..ge, and the period al- lowed by law for asserting their claims having expired, their remedy is taken away by the si.a*..*c 1 Jacob and W'dter 1 ; 2 Keane 749; 7 .Johns. 90. Ritchie, contra— Neither the plaiutiP uor his mother hove ever committed any act to prpjudice their in leritance. Nothing of this kind is pretended, and w« 910 ARCHIBALD v. BLOIS. im \^i • are to consider the alleged reasons why plaintiff should not recover. Tho whole of the questions arc settled by the conveyances. The objections arc founded on the will only. Thero area number of convcjances from the other children of John Stewart to John Steele of their respective in- terests, while there is none from phiinliff or his mother. Each of thesft deeds is evidence that Steele recognized the title of the children. But the conveyance from Charles Archibald, the father of plaintiff, is con- clusive. His wife being dead, and her child, the plaintiff, under age, he had an estate by the curtesy only, and Steele purchases from him his Jife estate, bein;? all ho could legrally convey. This deed expressly re- cites that the prrantor was tenant by the curtesy, and conveys that pre- cise estate and covenants for the quiet enjoyment of it. The heirs of Steele, who are the p.irties making this i! 'V.fice, and who claim, under their father, are estopped by this deed, an .ely barred from set- ting up any title beyond that conveyed by the ! — which recognize! and protects the interest of the plaintiff to the extent he now claims. The statute of limitations cannot apply in tliis case, because the pos- session of Steele, not only as tlie husband of the widow, but as the gran- tee of the other heirs, up to the time of his death three or four yeait ago, was perfectly consistent with the plaintiff's title. The objection that the title is in the triistces, and not in the plaintiff, is open to several answers. 1. There is no evidence that the trutit was accppted, while the acts of all the panics up to the present time are inconsistent with the idea that the trustees ever accepted the trustor interfered with the estate. They did not, in fact, fulfil the trust, they had no adequate remuneration pro- vided by law, and their not acting is evidence that they did not accept the trust, and in order to sustain the objection some eviience at least must be given of their acceptance. If they did not, the plaintiff is in ai the heir ut law. This is different from an outstanding term 7iot yet cx- pired. Here the period for fulfilling the trust has expired, which altera the presumption. Hill on Trus. 21 "), 224, 239. 2. If we suppose that they did accept the trust, it was limited lO the happening of a certain period, which has long since expired. That pe- riod was either the death of the widow, leaving no children, or the at- tainment by the children respectively of the age of twenty-one years. — One of these events must necessarily have terminated the trust estate. 3. After the lapse of so considerable a period the Court will presume that the trustees have either sold tl i.s term SiitherlitiKl for dofciulant obtaiiiod n I'lilo nisi to set iiside tlic iihiiutiH "a writs of altacluueiit and summons upon tl)roo {ifrounds. 1. Thai tlie writ being niadn votiiri»ablc on the lii>t 'i'iios it would have no such etfect in an action against an absconding debtor, because be was allowed three terms to come in and make defence. 2d, The oath must be endorsed on the attachment, but not on the sum- mons to the agent. The summons in (his writ is complete without tho endorsement of the oath. If the Court held this a material defect ho woidd ask h^ave to amend under sec. 117 of the Practice Act. 3rd. The coumcr ailidavits of t!i(! plaintilfs shewe 1 that the d-^fendant, if not absent, was absconding, as there were very stroi^g cireunistanees to shew that the defendant was concealing himself and keepiiig out of the way of acrvice. Sutherland in reply admitted that his convictions ware with the plaia- :ift"s couneel upon the tirst point. The act of 18.) i makes the length of MICHAELMAS TKRM, 1851, 321 )K. . iisiile upon rocoss issiu'if. of [iroi'css i:i tor. iS to iniikc it lini; (Icbloi'S , cli. 7, sec. I. [ibdiiuoii !i [ si'Jiinion.s :l;iy of Jii- wiiHt of u n't of smii- 0(1 upon it. ic was ab- id engageiK ay. 3 regiiliu'ly nud ill the 1 iiiado rc?- ^•t of 1851, rctuniabte is not ap- ible on ac- l to enable 5, wliereai» ng debtor, ["enoc. m the suni- rithout !ho deftict ho t. d.. tlie one case to instruct the agent how much property to retain, as in the other to inform the sheriff for what amount lo levy. The endorsement, tlierefore, was an essential part of the writ, cuid as Ihc act required a copy to be served the omission in this case was fatal. After commenting on the plaintiff's affidavits to shew tijat there was no proof that defendant was secreting himself, Ualmiuuton, C. .1. The I'lr.st point is abandoned. The second is of some impt)rtance, but it '= not necessary for me at present to decide it, as I am pnti.sfied upon tiie third pohit that the process cannot be sus- tained. Attachments were formerly issued against parties who were not ab- sent, and t!ie consequences were found to be so miscliievous ihat the legislature enacted a law to restrain them to cases where the defendant was ab.sent or absconding, and ;liis has been always understood by the Courts to refer only lo parties wlio were wilfully or pernian iiuly ab- sent. We must be satisfied, therefore, that there was such an inten- tional or prolonged absence as made tiiis process necessary. Tiie old Acts said tliatthe attachment should issue when parties were out of tl j province. Tiie more modern Acts apply it to tliose who are absent or cthiconduiq. I will not say that under tliese words an attachment could in no case issue aii'.'iinst a p.'irly wlio was within the boundaries of the province, for instance, if he absolutely secreted himself. If a defendant merely iicejis out of tlie way the statute provides a different remedy. In this case there are very strong and ^'learaffulavits tliatthe defendant M'as residing here, that he hud not clinnged his residence, that he was going about the streets and attending to his business. The fact tliatthe plaintitl'or the sheriff had a dilllcully in findnig hiin is not sufficient, as they ma)' iiave called when he was not at home. Bmss, d. The words of llio Act are " absconding or absent out of the province." Jfy impression is that nhscojidiDg, without absence from the province, would be sulliolent to sustain a writ ; but that absconding mu.-'t be clearly shewn. The plaintiff must put the matter beyond a dnjubt. He has not done so in this case, as his aflidavits only go to shew, not that the defendant was, hut that he 7ni(/ht have hren absconding. This 322 THE QUEEN r. MARTIN. possibility ho has nogativoil, and if these affidavits of the defendant's, urfeontradictiid as they are, are not sufficient, it woiihl be impossihlo to get rid of such proceedings wlien commenced upon insufllcient grounds. IlALinuKTON, J. The affidavits on the part of the plaintiff minjiit perhaps be considered as a f:^oo(\ pn ma facie case, but are not a suffici- ent answer to the defendant's positive slatcmciits that he was not absent or absconding. DesBahrks, J. TI»o mere keeping out of the way would not bo a sufficient ground to sustain this writ. This is essentially different from the case from Amherst, where the party was in the act of absconding wlien the process issued, although he had not actually got out of the province at the time. The process in that case was upheld, but hero there is no evidence that the party did abscond or intended to ab- scond. i: I ii !■ u- On a subsequent day Johnston, Q. C. applied to have the rule framed so as to set aside the attachment and summon? to the agent to uphold the writ of attachment and s(>rvice as a summons to the defendant only, and to make several corresponding alterations in tlie form of the writ, and cited Pract. .\ct, sec. 117. Court. This would be making an entirely new writ. Amendsncnt refused, and rule to set aside proceedings made abso- lute. THE QIIEKN r. NICHOLAS II. MARTIN. Novcn)l)cr 'JO. .'t is tlio duty of tlic Kxcculivo Govenimonl of tlio prnvinrc to nssumi' tliecnslodv :iml I'iU'o of pi't'-ions ncciiiiltt'd t;f ('riiiiiiiiil diaries upon llicgrouml of insanity, which li_v tli;' common law of Kuglnnrt is vesicil in the cvo.vn. Fnirbnidc, Q. C moves for a rule nisi for a writ of /laheas ror/)iis to discharge from custody t'lc prisoner, A^. //. Mivliii, wlio was tried before DnsliAUUiiH, .F. at Sydney, at, a special session of the Supreme Court held under the Aet of IS.Vl, eh. 20, see. 1, for ffie crime of murder committed upon the person of Archihahl M. Doihl, J''stpnre, and ac- quitted. It appeared from the judge's minutes oftlie trial, and from the alRdavits that the prisoner had defeiulod liimseif upon the ground of insanity, tlyit when the verdict of not guilty was returned the jury were nsked by the (,'ourt upon what ground the verdict wag lit: It; MICHAKLMAS TKRM, isr.j. 323 given, ami upon tlieir speoilyliig insanity as tlicir ivnson an addi- tion was nifttl(! to tlie verdict to tiiat ctVect, with tiut consent of tlio coun- sel for th(! Crown and (♦f tlic prisoner's counst;!. An application was made to DksHauiiks, J. at Sydney, soon after tlie trial, for the prison- er's discharge, wliich llie learned judge refused, .stating that lie would report the ease to the ICxeeulivo, uud the prisoner iiad since been kept in custody at Sydney by order ot tlie governor. Fairbanks produced atlidavits of several of the jurymen as to circum- stances which took place in open Court when (he, vi-rdict, was given, and cited 7 Mee. and W. .'JD!), to slujw that such alUdavits were ailniissiblc. These allidavits went to shew among other things that tho verdict was recorded before the jury were asked the grounds of their vcsrdict, and Fairhnnks contended that tin-, jury haJ disciiiu^vd its functions, a-id its iiicml ers were not oidy not bound to give liieir risasons, but the altera- tion of the verdict was irregidar and invalid, aiul tiiat this was under the circumstances a general verdict of not guilty, it \\m:. Ab. 2jH7 ; Vanghan 11. !;*(); and, therefore, the sub.sei|ueiil detention was illegal. Ailinitting, however, that the (Jourt was right in moulding the verdict into its in-escnt form, utill there was no power to detain. lOven if tho prison(!r was insane at the time of the coniniis.^ion ix<>\. ol" his wiiiily, and lu' was, tI»nTit|uiii, disclmrgrd Uy order of the Kx«- nilivi' (iovenimrnt. J.KSSKE OF EMJIUEK v. DIXON. N()VPiiil)or !.'8. A inisl oni'o lu'ccjitcd wilt noi lie prfsnmrd lo li iv licon siin't'iiili'icd (Iiii'iti); the lil'r oC II |iiii'ly, previous to wlio.vc ilnilli llir ti'iisis ciiiiiiol lio liillillcil. Kj«'ctiiiiiu'h, ,/iimrs S. Iforsp, and Jonah Pi/x's, in trust (o sell (he pmper(y, in part or in wlade, to pay the yranlor's tlelils np to that time, and (o dispose of (he residne (o the hes( advantaj:;i', for the lunelit of (In; widow and ehildren of the graiUor alter his death, and during the life of the widow ; and ai'ler her death (o he divided among her ehildren. In .Inne, 18 l."», Jforxc and J'ipts, surviving triis(ees, gave a lease of (ho premises to Sarah Dixon und William Dixon, (w«> of (he defendaii(s, whieh was s(ill outstanding, and i( uppeari^d by this lease that there were debts of Thoman A. Dixon, sen)'., which were still unj)aid. The tlelendanl moved for a nonsuit, on the ground that by this deed tide was shewn (o bo out of (he plaintit)'. The plaintilV's counsel contended that as the trust deed was not exe- cuted by the (rus(ees, it did not take elVeet, and if it did, the trust must be presumcil, from the lapse of time, to have been surrendered. The learned judge ruled that the trustees, having acted so lately us 18 It"), and it appearing by the lease (hat the debts of Thomas A. J)ixon, senr., were still unpaid, his children had no personal interest in the land, nor consequently could the plainliif. The plnintitV submitted to n nonsuit, subject to the opinion of the Court, upon several other questions arising from the evidence, whieh arc not now adverted to, as they were not referred to in the decision. McCnUij in moving for rule absolute to set aside the nonsuit, and enter verdict for plaintitl', contended that as the trust deed w«0 not es.e- MICHAELMAS TERM, 1854. 337 cuUmI by the truslons nor any uf t'lO creditors, and not even conltiining ii schudulc of the debts lliat were to bu ptiid, it wiu a mcro voluntary convc.yiinc.e, which might huvo been revolted at any time by (lie grantor, and conferred no \v<^nl right on the crcdilorH, that tlie death of thu testator and the lapse of lime which ha ; Hill on Trustees, 32:) and 'l.'S7, and cases cited ; Td. 254, 5, 7, 262 ; 1 Jac. and Wal, «)ll.j;]; 12 Vos. 239.252; 2 Sim. and Stu. 154; 10 Bing 75 ; 2 T. R. COG ; 1 T. 11. 758 ; 2 U. and Aid. 710 ; Bull. N. P. llO.lfi; 7 T. R. 2.47; 3 \\. and C. 010; 11 E. 478; 3 Burr 14.10. Smith, contra — contended that the cause must be considered upon legal grounds, apart from the considcratioi' of what the rights of the parties might be in a Court of Eiiuity. It appears that independently of the debts not being yet paid, there is a distinct trust for the widow (luring her life, which, as she is yet living, cannot be presumed to havo boon surrendered. TiiK CoiiKT stopped Smith, and proceeded to give judgment. II\r-nnL'KT<)X, C. J. The deed in trust is not invalidated by the fact that it was not executed by the trustees, provided they had ac- cepted the trust, and that they had done so was apparent from the fact of their having acted upon it, in fulfilment of the trusts, as la'ely an 1845. At that date the debts do not appear to have been paid, but, if they were, the widow was still living, and, until her death, the children could have no beneficial interest in the property. The trust, therefore, is still outstanding, and the legal title out of the plaintiti' and in tho trustees. The other judges concurred. Hulc dibchargt.d. \iV< llfl' ^ i ■: ii'ij 3J8 DOANE V. McKENNY. DOANK V. Mi KENNY. November 28. TIio common law writ of pnrtition exlcnds to joint tenants, and tenants in com- mon, in tiiii) province. Tlic nilinission on the reconl that parties arc alive, preclndcs tiie presumption of their dcntii. nriiiinf; from coiiiiniied aliscnce. Tiic omission to insert tliu names of co-tenants is a fatal objection when taken at the triul,nn(l need not be pleaded in nl)atcment. The Couht will not amend the pluintitf 's writ during argument of a motion to set aside the verdict. This was an action for partition tried before Dodd, J. at Slielburnc in last May term. Verdict for plaintitF, subject to the opinion of the Court upon the whole case. The plaintiiFs claimed from the defendant their portion of a lot of land in which they were jointly interested with the defendant as a co- heir. Plea that the parties do not hold together. Gray now moved for a rule absolute to set aside the verdict upon se- veral grounds, among which were the following : — 1. That this proceeding being at common law was irregular, inas- much as the commoi) law proceeding, except as regards co-parceners, was superseded by the remedy provided by Revised Statutes, ch. 139. 2. That there was a nonjoinder of parties, several who ought to have been brought in as plaintitfs having been omitted. Upon the first point Gray argued that the words of ch. 139, s. 1. of tlie Revised Statutes, giving cither the proceeding " at common law," or the proceeding under the statute had the etTcct of restoring the prac- tice, when not taken under our own statute, to the old common law proceeding, as it existed prior to the statute of 31 Henry VIII. ch. 1. Prior to the passing of that act the writ of partition was confined to the case of co-parceners. This was the "common law" proceeding, and it did not provide for the case of joint tenants, and tenants in common, who were first allowed tlic benefit of the writ by that statute. The writ now allowed being the common law writ, cannot extend to joint tenants, or tenants in common, and, therefore, the proceedings are irregular. Cites 1 Thos. Co. Litt. 08 1 and CG7 a ; 2 Mass. R. 408. As to the nonjoinder, it appeared by the evidence that Margaret Mc- Kenny, one of the co-heirs, had married a soldier, by whom she had two children, Stephen and Jffarf/aret, and subsequently died, and the family had not been heard from for 14 years. William MvKcnny, another lieir, had also been absent riiany years, and it appeared from the evi- dence of his mother that he was supposed to be dead. William Mc- Kenny was not joined at all in the proceedings, and the children of Margaret were only mentioned as plaintifis by a general designation as •• the heirs of Margaret McKenny, whosC names are unknown." MICHAELMAS TKRM, 18.VI. rr2'i Hints in com- csumption of iiun taken nt a motion to Slielburne lion of tlic of a lot of nt as n co- 3t upon se- ;ular, inas- parceners, 1, ch. 139. jht to have 39, s. 1. of men law," ; tlie prac- n)mon law [II. ch. 1. ned to the ng, and it common, The writ It tenants, irregular. •ffctret Mc- le had two he family /, another n the evi- liam Mc- hildren of ^nation uis Gray contiindod the proof of William's death was insutlicient, and that tha of nonjoinder in abatement, in which case the plaintitl'coiild have taken issue on the plea or moved to amend. It is a mere technical objection. The proportion asked for by i)laintiif allows for Uie share of Jfarf/aret's children, and no more could be recovered, and there are counts in the declaration adapted to either case. If the defect be considered material an amendment may be made by striking out the reference to Marr/aret's children. IlAi.nni.KTox, C. J. It would be giving a very refined construction to our stsitute to suppose that the legislature meant to restore the writ of partition to its old position, which it occupied previous to the statute of Henry VIII. It is far more probable that the intention was, in pro- viding a new remedy, to leave the former rcmedj' as it stood ; and as the iinii ''• A\j r"'|j . A aao UUSSELL r. MARSHALL. state of the luw, previous to the passing of the Revised Statutes, is quite consistent with the language tiicre used, it is my opinion that the legis- lature intended that the writ of partition should remain in force as had previously been enacted. The other point is more important. The heirs of Margaret are admitted on the record to be alive, and, if they are, they may have some reason to allege why this partition should not be made. At all events they are entitled to notice. Ch. 139, sec. 8, makes full provision for such a case as this, but the plaintiffs have not availed themselves of it. This objection is not met by sec. 36 of the Practice Act, as the leaving out or inserting a name affects the propor- tion to which each is entitled. This is an objection substantial in its nature, and although in this case it may in effect be merely technical, we are deciding upon a verdict, submitted to our consideration for the purpose of obtaining our decision upon this ground, and lam of opinion that the objection ought to prevail. Bliss, J. The legislature must have intended to leave the remedy the same as before the passing of the Revised Statutes, with the addi- tion of the concurrent remedy provided by the 139 chapter. Those who prepared the Revised Statutes did not probably advert to the fact that the remedy previously existing was founded partly on statutes. — The children of Margaret are admitted by the declaration to be alive, while they are made plaintiffs under circumstances which shew that they could not have given their consent. But they are not made plain- tiff's by name, and, therefore, they are not plamtiffs in such a manner us to enable a judgment to be entered for them. I do not see how the verdict can be sustained or the proceedings amended, at all events, at the present stage of the cau«e. DODD, J. I am of the same opinion. At the trial I gave the plain- tiffs leave to amend, and they did not avail themselves of it, and wn cannot amend the proceedings here. The other judges (concurred. Rule absolute. RUSSELL V. MARSHALL. December 1. A party taking u register of n new vessel in his own name, as owner, for tfio pur- pose of securing u debt, is not liiiblo for supplies furnished to the vessel upon the credit of the beneficial owner, and while in his possession. Improper reception of testimony will not invnlidnte a r( there is sufficient additional evidence to sustain it. verdict for plaintiff, when This was a rule 7iiifi for a new trial in an action tried before Des- MICHAELMAS TERM. 18.W. an Uaiirks, J. at Piotou, to rocovor the price of goods .sup[)lic(l by the plaintitifio llie barque " New Zealander." It appeared that (he vessel was built by one Kitchen, wbo had previously erected aevcrul ships at the same place on his own account, and who was in possession of the vessel during her construction. The vessel was registered in the name of the defendant as sole owner, Kitchen being endorsed on the certificate as master, but a part of the goods were furnished to Kitchen before the registry and while the ship was iu his possession, and a part of them after the registry. Verdict for defendant. W. Johnston contended that the defendant, ns registered owner of the vessel, was bound to pay for the goods, and cited 4 C. and P. 158 ; !;'» Mass. R. 449 ; 7 T. R. 30G ; 2 Str. 71G ; 4 B. and Aid. 352 ; 7 Moore 351 ; 7 B. and C. 34 ; 1 C. and P. 602. In this case the defendant was held out to the world as owner, by Kitchen, and by his own act in taking out the register. Kitchen was registered as master, and as such he was the agent of the owner, and his acts in procuring these goods are binding on the owner. Admitting that the owner was unknown prior to the registry, a principal is liable when discovered, although not pre- viously disclosed. 2 Smith's L. C. 217.8; Story on Agency, s. 294, p. 369. A part of the evidence for defendant was taken under a commission addressed to several parties, the surname of one of whom was omitted in the commission. The evidence, however, was admitted, and it is contended that the objection is fatal and invalidates the veidict on the ground of admission of improper testimony. Without hearing the Attorney General contra — Halmuurtov, C. J. Whatever may be the forco of the objection to the commission it cannot affect my opinion in this CHse, as it appears to me that there is sufficient evidence without it to sustain the plaintiff's case. We are obliged to consider the sufficiency of the evidence under the new rule (Pract. Act, s. 176) which brings the law back to what it was before the passing of Lord Denman's Act. We considered this question in Johnston v. Brenan, 1 James's N. S. Rep. 17. The sole question is, to whom was the credit given ? It appears, by all the evi- dence that the credit was given to Kitchen and not to the defendant, who had no further interest in the ves.«el than as a creditor to secure his own debt, and the pl.-xintiff himself proceeded against Kitchen as an insolvent debtor for this debt after his departure in the vessel. It is unfortunate that his death on the voyage deprived the plaintiff of his remedy, but it cannot alter the liability. ll I ;i.L iliffii h ' I 'M2 conn r. rriixKH. Blims, J. This is not the case of the discovory of an unknown prin- cipal, iu tilt! oviilence does not sliew tlmt dofendant was a principal at ••11, but, on the contrary, that tlio credit was given to Kllclicn, who was in fact tlie principal. I consider the new rule as to the ell'ect of irroj^u- lar testimony a bad law. Lord Deninan's rule was a wholesome rule, because it threw upon the attornies the responsiliility of withholding improper testimony. The new rule throws it upon the presiding judge, who will usually admit it if there be any doubt whatever, as, if impro- perly rejected, the cause would be sent back to a jury as a matter of course. lI.vMuuKTox, J. and DKsnAniiE.*, J. concurred. Rule discharged. COBB V. TURNER el. ul December 1 . Necessaries supplied to a vessel fitting for sea on the order of one of scvcrnl pnrt owners. Ilel ; 7 Uing 70!). And in this oaso there U no proof wiiatevor of tho consent of tiio otlier defendants. Part owmn's are not necuisnriiy partners, and the admissions of one arc not bindin;j; on the otliers, unless there he evi- dence of partnership. Abbott, .'ith Ed. 107 (note) ; 1 Stark N. V. M ; I Kast 20. Tlie written acknowledgment of Turner is, therefore, .lo evidence a^'ainst the rest, and without it the verdict caiuiot be sustained. The plain! iff 'a bill against Turner alone shews that the credit was given to him only. The other defendants, in admitting tliat they were part owners, stated at the same time that they had paid Turner for the sails, and there is no other evidence of their ownership. The rule in I'ract. Act, sec. 40, does not apply to this case, as the evidence is a complete variance from the contract alleged. Cites Abbott 100 ; l C. and P. 158; 11 Mass. R. 31; 5 Ksp. 122; Russel v. Marshall, Ante, p 33U. After consultation the Court, without hearing J. W. Johnston, Jr., in opposition to the rule, proceeded to give judgment seriatim. llALLiBumoN, C. J. After examining the report carefully I am of opinion that no ground has been laid for disturbing this verdict. The sails were indispensable for the use of the vessel, and were furnished by tiic plaintiff at a time when she was litting out for sea, and were actually used for that purpose. The defendants were engaged in building the vessel and must have been cognizant of the fact, and it is proved by their subsequent admissions that they were so cognizant. The jury under these circumstances may reasonably have inferred that they consented to the purchase. If the goods were furnished upon the exclusive credit of Turner the other defendants might have established that fact conclu- sively, but tiiey have not done so. I consider that there is sufficient evidence to sustain the verdict. lii.iss, J. The fact of the goods being supplied for the vessel I'aises an implied .assumpsit against those who received the benefit, unless an exclusive credit be shewn, and the jury, who had a right to decide who those parties were, have selected certain of the defendants, against whom they have given their verdict, and ac([uitted the others. This appears to me to be the very case intended to be provided for by sec. 40 of the Practice Act. The plaintiff delivers the sails to one of tho defendants and debits them to him, but subsequently discovers that the party pur- chased not only for himself, but for others, who are also liable, and brings his action against all whom he supposes to be liable. The jury are not satisfied that all are liable, but make a selection founded on the evidence. The evidence against these parties appears to me to be suffi- cient, and I think the verdict should be sustained. iH PUUCELL t: BIKKK. lI.vi.iutitTON, J. concurs. DksB.vkuks, J. T uni not stitisliud witli the verdict. I formed a strong impression at tlie tri'i! ihut there was an exclusive credit. It was so put to tlie jury, and they took a diffc'rent view of the evidence, as they had a right to do, Ivit my impression is not changed. llulo discharged. FERGUSON V. HYDE. December I. Steu'art for defendant moves to malie absolute a rule nisi for a con- tinuance, on account of the absence of a witness, wjiose evidence the defendant's afHdavit stated he " was unable to obtain." James objects upon an alfidavit that the witness resided in New Brunswick, and that the writ and declaration had been served on the defendant on the .'iOth October, iind contended that under the circum- stances the defendant should have shewn that some effort had been made to obtain the attendance of the witness, and cited Jones v. Willi- ams, Ante page 303. The Coiur considered the statement in tlie defendant's affidavit fjUlHcicnt. llule granted. rURCELL V. BURKE. December 1. thhnslon, Q. C. moves for a continuance on the ground of the absence of a material witness. Co CRT. At this period in the term you cannot give the plaintiff four days to answer the rule, and you have given no reason in your affidavit for not moving on the first day of the term. If you had dhewn us a sufficient reason for the delay, we would have given you a rule return- able at a shorter period than four days. A rule nisi, wa? granted returnable on the last day of term, subject to the objection. Kule accordingly. .AIICHAELMAS TERM, 1851. SBo 1 formed a credit. It s evidence, scliarged. for a 0011- idence the 3d in New ved on the he circum- t had been s V. Willi- 's aHkUivit n-antod. DELAP V. FOSTER d. al December 1. In onlei- to sustain a purol submission il\erft must lie cleai- cvideiicc that all the pai'.ios lo it uiidcrstooil and intended it to operate as a reference. This was an action In-ought by Jiimes Ddup against tlie defendants, being overseer.s of tiie jjoor for tite townsliii* of Granville for the year 18i5;j. At tlie trial at Annnpolis in October term, IfS.j I, a*, the suggestion o( ^F)•. Juntivc Bllxs, the presiding judge, a verdict was taken for the i)lain- titfby consent, subject to a special case to i.c made for the opinion of the Court. It appeared by tli-^ special case that the plaintiff liad contracted with the successive sets of overseers for the towns jp diiringthe years IS.'il lo 18."»;} inclusive, to keep the poor of the township, for a sum in gross, for each year. The overseers for 18.').?, being tlie present defendants, had paid the amount of tlieir own contract to the plaintiff, but he demanded from them a considerable sum as being due to liim for kcei)ing the poor of the township by orders of the overseers for 1851-2, which sum he claimed to be due to him from the township, and that the defendants, as representing the township, were liable to pay the same to him. In June 1853, while the defendants were oversoers and the plaintiff the contractor under them, Lrcu^l Foster, one of the defendants, at the request and instance of the plaiiUitfs, and for the purpose of arranging the account?, of the plainutt" with the township, addressed to Whitman Annstronij, another of the defendants, the following letter, which the plainti*" then took to each of the overseers successively and procured their signatures thereto. lie absence lintiff four ir affidavit lewn US a de return- subject to dingly. " yiil. Al!MSrUON(i, — " IJear Sir, — I think you had better go with Mr. Detap to »ee Jioiniett and Jh'/iiicrsou, and try to get them to settle our affairs. " Your's in haste, '• IstJAKI. FosTi.i;. CiiAUi.ics U. I*.\Kivi;i{, Wir.i.rAM Cuoseii', " Accepted. KzuA rusTf.it. " William Armstrong." " I agree with the within naiiied ovei-ei-rs In K-ave u;y acoiiiil agaiii>t the township of (Jranville with A. Henderson and P. Boiiuelt, Ksipiircs. fo be settled by them and aliide their award. (Signed) "Jamis Dri.AV. '• Granville. .June 1 1, 185.')." o t :J3G DKI.AP >: FOSTKU. TliG alwve enJorricment on the Icttor signotl " Whilinan Jriuittroiti/" and ^' James Delnp" were written tl»ereon in presence of tlie arbitratorji before the award was made. After the signing of the letter the defendant and Whitman Armbirong went before Bonnet/ a id Ifenderson, wilh their books and accounts, and entered into an investigation, which resulted in a formal award in favor of the plaintiff for £8.. (Those portions of ihe ease and argument not adverted to in the de- cision are, as usual, oinitled.) i i Jt'.mes now moved for a rule absolute for judgment for the plaintiff", argu- ing that the facts cons itutcd a valid submission. Tiie facts are obvious Ibat not only the overseers for l8.Jo but their predecessors recognized their liability to the plaintiff for whatever balance was due to him. li was in fact the prevailing impression throughout the country that over- seers were liable for balances due by their predecessors, and under this impression the plaintiff had mixed up his accounts with successive boards, each recognizing by their acts their connection with previous transactions. This was obviously the state of matters when the de- fendant ])roposcu a refeirence. There could be no doubt that both par- ties supposed the present defendants liable, and he submitted that the letter in proof, coupled with the acts of the parties, shewed the clearest intention to make Ifcnderso,i and Boiuwlt Ihe referees. It could have had no other meaning or effect, and all parties who signed it must have so understood it. Its not being under seal was no objection, as a parol submission was binding, and the want of original liability, which was admitted, would not relieve them, as there were numerous cases to shew that parties acting in a representative capacity, such as solicitors, guar- dians, executors, kc, by entering into a reference, bound thenvsclves to lidfd the award. Cites 3 B. and Aid. 47 ; 3 Lev. 17 ; (5 B. and C. 2G2.;j ; 1 Lord IJiiym 2 10 ; 2 Mod. 227 ; Litt. R. 30 ; Caldwell on Arb. 12 ; r. J. IJ. :Moorc' MS ; 1 T. IL (;i»2 ; '> T. R. G. The submission was proof of consent to become liable, or an admission of liability. The only Huestion submitted was the amount. Ritcfiic, confi-K — argued that as the overseers were strictly aimual ollicers, accountable only for their own acts, they hail nothing to do with the accounts of their predecessors, and could not be bound by a refer- ence, and arbitrators to whom such accounts were referred were bound to give an award in their favor, on the ground that they were not liable at all. Tlie arbitration might have been had, not to decide between Behiji and the dofendants, but between i)ela/) and the township. It in admitted by |)laintiff"s counsel that the liability of the defendants, ii uny, arisen from tlie .-rubmission solely, but if there be an express and k> 1 MICHAKLMAS TKRM, 1«:.4. 337 clear submissioii, and (ho arbitrators dcciile tliiit tliere is a legal liublli- fy, where there is not in fnr-t any legal liability, the, award will be set asidi?, nnlcfss indeed tiie refcreneo be made to a lawyer. Cite^^ 2 Ves. dunr. 18; ;> East ];J. TiiK Ctu'UT stop Ritchie, and advertinf; to the submission being in (lit; unusual form of a ic-ticr addressed iiy one individual to another, to its not stating expressly that Ifendrrson and lionnptt were to act as ar- bitrators, to its luiving been signed by the defendants individually and separately, apparently witliont consultation with each other, and to it« only having been completed by adding the indorsement on the day the awai'd was made, there should have been proof that all parties under- stood it and acceded to it as a submission, and that, in the fibsence of such evidence, the verdict could not be sustained. Judgment for defendants. BAUER V. GUNN. December 4. Shannon moves on aflldavit on behalf of defendant to discharge his recognizance entered into before two justices for overholding the plain- tiff's premises — the plaintiff not having entered the cause on the sum- mary list for trial nor commenced an action of ejectment, and cites Rev. Stat. ch. 1 10. Ilule granted without costs. FRKNCH V. WALLACE. llerombor 20. It i^ no Krounil for setting asi()c a verdict timt the jiii1(j;c gnve bis O|)inion on tlirt facts to the jury and rotoiiiniendecl tliein to j;ivc small damnfjcs. Johnston, Q. C. for plaintiff moves for new trial in a slander case tried before Hliss, J., on the ground that the judge had misdirected the juiy by stating to him his opinion that the conduct of the defendant, although indiscreet, was not malicious, and recommending them not to give heavy damages. IJi.iss, J. I told the jury that there was nothing to shew that there was any malice. The wh(de circumstances took place in the bosom of the defendant's family, and when he communicated his suspicions against the [)laintiffs he did not volunteer any statements, but they were drawn out of him by questions from others, I thought I had a right to express !■ 4 ;);',8 liOITTIMER r. IIARSIIMAN. my opinion upon tlicso facts lo the jury, and T think so still. It is every tlay's practice. IIam.huhton, C. J. JFy brotlier Bliss's explanation is (piite un- necessary. The judge in sucli cases generally expresses nn opinion on the subject before him, and he lias a perfect right to do so, and in tliis c.ise there does not appear to liave been any thing whatever objection- able in the manner in which his sentiments were delivered. If a judge expresses himself improperly to a jury of Englishmen instead of con- trolling them, it will have an opposite eftect, but the jury should be in- formed of the judge's opinion upon the merits of the case, and should icspvict that opinion. 1 shall always give my opinion in similar cases. Ti.e other judges concurred. Rule refused. McALMONT r. BOUDROT. DccPinber 30. This being the last day of sittings — The Atdvnet/ General moxal for costs of the term in this cause upon an affidavit that subprenas were issued on behalf of the defenuant, and costs incurred after notice of trial served and before it was counter- manded. Tiiic CotiiT considered th.at the affidavit was insufficient in not set- ting forth facts to shew that there was a necessity for incurring costs prior lo the notice of countermand. Rule refused. i^ BOUTILIER r. HARSIIMAN. Dcccml)cr no. Saiccrs moves on special grounds for a rule to foreclose, in a foreclo- sure suit, by fjcetMcnt, and was proceeding to address the Court — Counx. This is a proceeding in whicii you take your own course. It is for tlic {ilaintiflf to see that his proceedings are i,;'n'ilar or they will be .set aside. Rule granted. MICHAELMAS TERM. is.>l. iW.t STEPHENSON v. DULHANTY. Dccei>il)cr 30. Lync/i moves for a rule ni.si for new trial on liifi own niinutos, the judge's minutes of trial not being acccssiljlc, ConiiT. You must have them verified by idKdavit. The minute!) being subsequently verified and the motion renewed, Rule nisi grantwl. ClASES AH(;n:i) and detkumixki) IN TIIK SUPREME COURT ol- IIIK PROVINCE OF NOVA SCOTIA. KASTKR TKinr, 18.". I. is 'l.i: r ffi' i ■■ ' m . ¥ : llis Lnnlsliip tlie Ciiiia' Ji stuk whs abscni I'roiii illness iliii-iiii^ tli(> wliolo of this tt-nn. McNAlR V. MUNRO. April 10. Proof tlirtt witness knows the land in dispute, thntdetundnnt lives on it, wiili proof of two of the houndnries, held sutHcient proof in cjectnicni of the identity of the lot eliiimed. Ejectment tried at Cuysboro in November term before l)oi)i>, J. — Verdict lor plaintiH', subject to the opinion of the Court upon th(! j)Iain- tifl"s case. Ritchie uiovcs for nonsuit piirsu:int to terms of the special verdict, on the ground that there was no evidence of the identity of tlie lot witli that set out in the writ, and contends that the pluintit!' was bounJ (o prove precisely at least some of tlte main features of the lot in dispute, and cites 1 Q. 1). H. liH'. The whole proof here is loose and indetinit(>. Without hearing ^Fr. Johnston, contra — Court. There is sulficient evidence as several particulars are given. One witness says he knows the lot in dispute, and that defendant lives on it, that it is on Porcupitie Lake, and bounded south by Martin's lot. It is not only a prima facie case, but a very strong case. Rule discharged. KVSTKR TVMM, 18.') 1. .'Ill LANDRY V. JONES. April 'J. 'I'lic (IcIuiKlant in ordoi' to o)>tnin n continiiiinco on llie ^'I'ound of a I'oniniiHnion not living rcturni'd, must sliuw tliiii lie liiifi uscil due diligence to ubtuin its relnrn in time. Smith moves for a contiiiuaiico upon allnlavit on account of the commis- sion in this case, and sent to the West Indies to procure testimony, not having been returned from accidental circumstances, owing to the com- mifisioiier being absent. Tiie evidence reciuired was sworn to be mat(!- rial to the proof of the defendant's set off. Coi'ur. You have liad ample time since last October, and if you had used «lue diligence you would have written and asccrtaiiied the ditti- culty, and you might have applied to a judge at chambers for an order, by whicii it could have been removed. llule refuse* I. SMITH V. MAXNEH. April 9. In order to procure a oontinniinco, on llic ground of iihscncc of n witness, defend- ant must shew that he has used all possible diligence. HuUhurton moves for a continuance, upon an ailidavit that a material witness, on account of whose absence tne cause had been continued last term, had not yet returned to the province. It appeared that the wit iiess had sailed from Windsor for St. .John, N. 15., as master of a vessel in November last, and had sailed thence to Liverpool, G. 15., thence to New Orleans in February, intending thence to return via Liverpool, trator, had since her death, viz., in 18.">1, administereil silso upon his father's estate." Under these circumstances the Judge of I'robate considered tliat there wti-^ no evidence of further assets, " unless upon a bill to be liled in Chiincery. or by some otlier means, these payment- above referred to, alleged to have been mtide out of intestate's money, could be recovered from tlie daughters, or the real estate in some way be converted into assets." And in the antici- pation thiit this question would be raised in another Court having com- petent jurisdiction, he had decided to mal, referred to a case whore an executor or administrator was seeking to KASTER TERM, 185r;. nir, got his own account posscii, and not to a cnae like the present, where the nilininistrntor was cited to an examination of tlic accoiintf*, as otherwise an astute creditor, hy citing him to appear in fifteen days, might exclude the administrator's account, provided ho were required to file it a month previously. And he stated also (hat the decree had not been signed for more than n month after the account was allowed. It appeared also that the administrator had first filed a statement shewing the estate to be solvent, and afterwards an amended statement shewing it to be insolvent. The Attorney General and West for appellant. Twinhhj for administrator. TiiR CoruT considered that the Judge of Probate had full power, under Act of 1853, eh. 12, see. 12, to settle respecting the disputed item of X2G0, and although there might have been reasons for postponing this inquiry, and making an interlocutory decree in the meantime, yet, as there was nothing to hinder him from proceeding to a final settlement, had there been no other objection the Court would have remitted it back to the Judge of Probate for further proceedings. IJut there were serious objections against allowing an administrator to have his account passed, without being filed in time to enable an opposing party to make the ne- cessary inquiries, whicli would, if permitted, be equivalent to excluding all investigation. In this case especially the administrator had first filed an account shewing the estate solvent, and afterwards amended the account, which makes it the more necessary that duo investigation f-hould take place. That opportunity was not afforded in this case, and, therefore, we cannot sustain the decree. Rule absolute. April 14. The Attorney General in the same cause asked the Court to settle the form of the rule granted by the Court, and claimed costs, citing 1 James' X. S. Rep. Johnstou, Q. C. contra, distinguished this case from the case cited, as in the latter the parties were contending heirs, while tliis was the case of an administrator who would not be liable for costs in equity, wiLhoiit assets. It must first be made to appear that an executor or adminis- trator has assets before he can be subjoctcd to costs. Court. An executor is in a diflorcnt position from oliior pa:tic.-, and ought not to be obliged to content the ri-iht? of the C3tatc at his own r, 344 ETTER r. COPP. expense Under the circumstances of tliis case we think the costs should be paid out of the estate. Rule to reverse decision with costs out of the estate. BISSETT V. CORDEAU. April 11. TitK Court will make absolute, without argument, a rule nisi, which, having been duly served and entered for argomcnt, is anopposcd. Ritchie moved for a rule absolute io set aside a judgment entered at Arichat, for irregularity, and was proceeding to open the grounds of his motion — there being no opposition — when he was asked by the Court whether the rule nisi had been regularly served. It appeared by affidavit that the rule had been regularly served, and the cause duly entered for argument. Court. We do not require to hear argument before making abso- lute a rule nisiy which has been duly served and entered. Rule granted. I '\ ETTER V. COPP. April 12. I'^jcctment tried by order of Chancery, in order to obtain evidence to be adjudi- cated on in that Court. Verdict taken by consent, subject to the opinion of the Supreme Court. The Court declined to consider the question otherwise than in ac- cordance with the common law practice, ind therefore refused to decide upon mat- ters of fact, which should have been, but wsre not found by the jury ; nnd set aside the verdict, but without costs. Proof of part of a conversation, the witness having left before it was terminated, is not sufficient evidence of a demand of possessio;:. The plaintiff's proceedings will not be amended on avgument of a rule for a new trial. The Codrt on argument for a new trial will not order a nonsuit except by con scut. This was ejectment brought for 500 acres of land, and defended for 200 acres, tried at Amherst in October terra before Halibubton, J. Verdict for plainlitF, subject to the opinion of the Court. Stewart, with whom was Smith for defendant, now luoves to set aside the verdict upon three grounds. 1. No demand of possession before demise laid. 2. No demand of possession before action brought. 3. The locality of the premises, as given in CTidence, is different from that laid in the declaration. EASTER TERM, ld5r». u:t kins nbso- Tho action had originally been commenced in the Supreme Court, and removed into Chancery by injunction, and the trial had taken place in the original cause by order of the Master of the Rolls, in order to ob- tain the evidence as taken down by the presiding judge, to be used in the Court of Chancery in the consideration of the facta affecting the equities of the case. The locus was laid as being in the township of Amherst, and proved to be in another part of the county. It appeared that the plaintiff had originally sold to the defendant 500 acres, but the defendant finding he could not pay for the whole, agreed with the plaintiff to give up 325 acres and keep 200 acres, which were surveyed to him and continued in his possession until the action was brought in May, 1852 — the demise being laid in the January preceding. About the first of April in the fame year, at Mount Watley, in New Brunswick, eight miles from the land, the plaintiff was arguing with defendant about the land ; the plaintiff said, " I understand you dispute my title. I forbid you to proceed further till we settle, and further, I demand possession." The defendant said he did not deny the plaintiff's title. The witness did not stop longer, and they were arguing about it when he left. The plaintiff had applied ineffectually at the trial to amend his declaration by altering the date of the demise. Stewart argued that the possession of defendant, admitting that he had not paid the amount of purchase money, (which was one of the subjects of inquiry in Chancery,) was that of a tenant at will, that ho was, therefore, entitled to a demand of possession, and the demand proved was insufficient, inasmuch as it was not made on the land, as there was no refusal proved, and as the conversation was unfinished when the witness left, and therefore proves nothing. If a demand hud been made, there must be a refusal proved. Tiie demand attempted to be proved, therefore, is of no avail, but, if it was, it took place after the demise laid. Besides, a demand must be made upon the land. If there is any one in possession it may be made of him, and if not, the land is derelict, and the claimant may go on and resunje liis possession. Cites on 1st and 2nu points, 4 T. U. G80 ; 15 East 210; 1 B. ami C. 454 ; 7 Bing 322 ; 4 N. and M. 42. On 3rd point, Till. Adams 277 ; 4 Camp. 2G4. Stewart pressed the Court to grant a nonsuit under the special cir- cumstances, as another trial would be fruitless, the substantial matters at issue being for the consideration of the Court of Chancery. Me Cully, contra, stated that the real question at issue between the parties was, whether the defendant was to get the 200 acres for what he had paid to the plaintiff", or not. This question ho thought this Court ;mo KTTKU .'. CUIU'. oiiglil iiinv ti) lU'ciilc uitou, Mu\ olVereil to roml tlie order ol" llic Court of C'liunt'cry. Corur. That is n question wliich oiiglit to li.ivc boon dcciilcd by tlic jury, luit wo ennnot tiikc it into considoriition in tlii.s iirguinont. — Wv nuisl looli ill it simply as a verdict to be sustained or Kct aside in tliis Court, ill aceordancc with our own rules of proceeding as n com- mon law Court. We have nothing to do with the order of the Kcpiity Court, wiiieli is intended to regulate the proceedings in that Court, and cainiot allect ours. If this were an issue out of Chancery you would move for a new trial there, and not here. ^fl^('t(UjJ argued thai, being in support of a verdict, ho was not bound to justify the verdict, but merely to shew that there was evidence for the jury. And he considered that there was evidence upon each of the points raised. As for the date of the demise it ai)pearcd by the minutes that he had moved to amend at the trial, and he asked the Court to per- mit it to be done now, as if it had been done at the trial ; and, if the Court should be against him, declined to consent ton nonsuit, as he had previously done at the trial. Without hearing Smith, contra — IJi.iss, J. The jury should have found upon the facts of this case, but they have not done so, and, therefore, we must send it back, but without costs. We cannot nonsuit the plnintilf against his consent, iieitlier can we amend his declaration by altering the date of the demise at this stage of the proceedings. We cannot make amendments to ope- rate retrospectively, and when made they must be upon reasonable terms. DoDD, .1. The amendment, if granted, would not help the plaintiff, (or the question as to the demand still remains, and we do not think tlic demand proved is suincient. The conversation was unfinished, and it would be similar to giving in evidcincc half of a document when the olher half if produced might materially alter its eflcct. I)i;sBauki'.s. J. concurred. liule absolute for new trial without cost?. KASTfiR TI:RM, I6i>a. 847 CKEiairroN et. al v. daniels. April 12, ISaS. A writ nrnltnrliniPnt nciiiii!'t nn Rbscondinp flclitor will not ho net ii^ildofordcfci't in tliii I'cliini liny, r\('(>|it at tliu iiHtiiiicc ami for lliu licMiclit ot tliu (Icrcnilmit ; iiiul wIkm'c (!I'i)|iiiiIs in'i> liiiil I'lir su|>|)i)Hini; iliiU tliu iippliciitiiiii iniiy lio miiilu fur tho ill' tci'ust ul'ii Kiil>sci|iictU iittiicliur tlio Court will ruqiiiro nllUlaviti to tlio contniry lio- tore (;raiUliiK tln' nilo. (imn. WIkmIum- wrin of attnclimont siiould lio mndo returnable on a spociiil ro- I urn (lay, or uiulor Act of I8ri4, ch. 7. This was tx motion on bolmlf of tlic ilefcnditnt to set nsulc nn nttach- incnt in this cmisc a;!;ainst nn abscomlin;^ debtor on the ground of a.n iinpropor return day in tlio writ. TIic motion was niadi; under llio au- thority of a power of attorney from tlic wife of tbc defendant in cbargo of his property. Tiic objection to tho writ was that it was made re- turnable in twenty days after service instead ofon a special return day. The Attornoij dncral in support of the motion cited Revised Stntiitca eh. 140, sec. I ; Practice Act, sections 2, 10, Ul, and 21G; and the Act oflM'l, eh. 7. TIk! revis(ul stalulos made no alteration from tlio old return days on the fiivt and second Tuesdays of term, whicili were the return days of .•ill writs until tho passing of the Practice Act. The latter substituted four special return days without specifying what writs were to be made returnable on those days ; but this could not have referred to attach- ments for two reasons : 1st, because tho chapter of the revised statutes which regulated this process was not repealed by the practice act, ex- cept in so far as to alter the forms of tho writs (Pract. Act s. 210) ; 2nd, tho writs referred to in the practice act were directed to bajir an indorsement requiring tho defendant to appear in a certain number of days after tho return days (sec. 01), which was clearly inapplicable to absconding debtors, who were allowed by law three terms to appear.-— And the Act of IB.Vl was inapplicable for the last reason adduced, and also because it was contined to writs of summons only, whereas through- out the whole of our legislation tho writs of attachment and summons against absconding debtors, are always mentioned together as writs of " attachment or summons," and in circumstances in which it is impossi- ble to confound them with the ordinary summons, to which the simple designation of " writ of summons" is always applied. lie contended, therefore, that the old return days, as they existed when tho revised statutes were passed, were still in force as respects writs of attachment, or at least that the Act of 1854 could not apply, and therefore, in either case, tho return in this writ was irregular, and tho writ void under tho authority of numerous eases. Lynch, co7i(ra, followed by Ritchie, produced aflidavits thct subsc- >i^;i ■ M ' i ^.0 1^ 348 CREIGIITON I'. DANIELS. quent to the issuing of tlic writ another nttachment liad been issued against the fame defendant at the suit of .l/f;s,srs. JiellA- Black, and that there wasreason to believe, from circum tances detailed in tlie affidavits, that this motion, altliough made in the name of the defendant, and with the sanction of iiis wife, was in reality made principally or altogether at the instance and for the benefit of the subsequent attacher ; and con- tended that the enactment in Rev. Stat., eh. 141, sec. S, l), 10, which permitted subsequent attachers and others interested to s^t aside pro- cess upoii the ground tliat the sum demanded " was not justly due or was not payable when the action v;as commenced," in effect precluded a subsequent attacher from attacking the process on any other grounds. The defendant had been absent and not heard from since before the commencement of the suit, and therefore could not personally have au- thorised this motion. The wife has no general authority to retain counsel, or do any other act to bind her husband, and no authority could be implied in this case. The defendant must appear in order to make this motion. In liatchford v. Cliipmnn, decided before the revised sta- tutes passed, (cited from Stewart's Ms. notes,) it was held that no per- son but the defendant could come in for this purpose. Also 8 Jurist 47i!. Steicart, amicus curiae. The decision in liatchford v. Chipman was that u mere stranger could not make the application. As to the form of writ, the Act of 18o4 abolishes the return days for •\\\ writs of sunnnons, and as both the summons and attachment against absconding debtors necessarily include a sunmions to the defendant, they come within the words of the statute, which uses the word "sum- mons," instead of " mesne process," because in fiict all writs by which aw aciion is conmienced include a summons to the defendant to appear. There could liavc been no object in confining it to one class of writs, aa no inconvenience would result from applying it to all, including replevin which also contains a summons. The Attorney General in reply argued that an irregular return day is i'atal, and cites 4 B. and Aid. 288. This form of action is entirely statutable, and the re [uisites of the law must be irictly observed, more especially as it ullects the defendant without, in most cas'?. any actual service of the writ. The statutes deal with three distaicfc (dasses of writs. 1st, the ordinary summons; 2nd, replevin; i'rd, the writs of attachment against absconding debtors, and aunimons a'^ainst their agents. All of these are in the niture of wc6Vie process, but not analogous in form or in proceer) and Di;sBai!1!es. — Judge IlALiBritrox being the defendant, and Judge Busss, a stock- holder in the Bank, could give no opinion in the ca.;?. Counsel for plaintitl', Jolinslon, C^. C. ; for def<;ndant, C W. H. Harris, Stewart, and Smith. The defendant was the owner of certain quarries of gypsum at Wind- sor, and in the year 1812 entered into an agreement with one J. L. Soii(/slcr u[ion the following terms : — So»f/slcr was to superintend the working of the quarries and the sale of plaister. He was to pay the expenses of working them out of the gross proceeds of the sales, and the nett proceeds were to bo divided between him and the del'endant in the following proportions — two-tiiirds to the di'I'endant and one-third to Soiif/slcr. As much expense would necessarily be incurred in quarry- ing the plaister and transporting it to the place of shipment before any sales could be effected, the defendant (at what precise time did not ap- pear) authorized Kiiuj Se Fra.ser, the agents ol" the Bank at Windsor, to make advances to Scnijstcr to meet these expenses. In May, 1813, the defendant was about going to England, and on calling at the oiricc o{ Kiiifi ^- Froser, i-'/vr.s'cr stated to him that as he (defendant) was about going to Kngland he hai' better leave some written acknowledg- ment of his liability for advances made by them to Sontjstcr, on which the defendant wrote the following, " I hold myself accountable lor all advances made to ./. L. Soiu/ster since June Glh, 1812, on account of my quarries at AV^indsor. " 1 jth May, ISlil. (Signed) T. C. ITA!.ir,i itroN." and delivered the paper to Frascr. Frasrr then fti'kctl him if he wish- ed h'i>i;/ t^' Frnscr to go on with Soii^/sti'r a? u.^7 10s, od. A rule nisi for setting a^ide this verdict was argued in jVIichaelmas term hist, occupying the grciitest part of three days. We may therefore conclude from the lime thus occupied, and the number of counsel engageil in favor of the rule, together with their standing at the bar, that every thing was urged that ciuld iw;, consiitout wiili the law and the facts of the case, for making the rule absolute. Notwithstand- ing, however, all that was then advanced in the .•irguiuent, I hav(! ar- rived at the conclusion, after mature consideration and a close e\amiiia- (ion of most jf the cases cited in support of the rule as wfil as uiaiiy others not referred to, that the verdict should not be ulii«turifted. One of the jminis taken at the argument in iiivor of a new triiil was that the witness Sougs/er, as the agent of the dcfcndan'U had eomniitted a fraud upon his pruacii)al, that his •evidence was at ymriaiMCv. with the truth, and if withdrawn from tiic ca.^e there was not anyiliiing to sustain the verdict. Tin. credit, however, of ihi,- witness, a? well as that o( King, tho only other witness for the plaintiils, have been passed upon i>V tlicjurv.aud we arc now Iiound In lake their evidence as true. What- .4' m :m BANK OF NOVA SCOTIA v. IIALIBURTOX. f:M 111 }'■■ I :m -^ ever suspicion has been thrown upon the testimony by the evidence produced on the part of the defendant, unless that evidence largely preponderates in favor of a different set of facts, we cannot on that ac- count set the verdict aside. Tlie case of Mellin v. Taylor, 3 Bing N. C. 109, which has several times been referred to in this Court, shews from the hvnguagc of Ti/ndal, C J. that " in every case in wliich th© verdict has turned upon a question of ftict which has been submitted to a Jury, and there is no objection to the verdict, except that ft is found in the opinion of the Court against the weight of evidence, the Court ought to exercise not merely a cautious, but a strict and sure judgment,^ before they send the cause to a second' jury." And' he proceeds to say, •' the general rule under such circumstances is that the vei'dict once found shall stand, and the setting it aside is the exception, and ought to be an exception of rare and almost singular occurrence." And in a subsequent case o( Hylmid v. Allan, decided in the Court of Exchequer in 1849, and referred to in a note to Howdcn v. Standish, G M. G. and Scott 52^, that Court held that an application for a new trial upou the ground that the verdict was agafnst the evid'ence could not be en- tertained, when the Judge who tried the cause stated that he was not dis- satisfied with the verdict. At the trial' the case 'urncd principally upon the agency of Songster, whether his authority as agent authorized him to make payments to the plaintiffs, anJ settle and adjust the defendant's account in the manner he did on the 12th January, 18.50. Tliis was in express terms submitted to the jury, and they found in the aflrrmative. The question of partiici'ship was also under their consideration. The evidence of the agency of Sonqster to receive money from the plaintiffs will not admit of a doubt. We not only have on this point the testimo- ny of Songster, but that of Kinfj, and both corroborated* by the under- taking of tlic defendant given to the agents of the Bank on tlie loth Slay, 1843, by which he held himself accountable for all advances made to Songster from the 5th of January, T842 ; and at the time of entering into this undertaking, when asked by Fraser if they were to go on with Songster as usual, he replied " Oh yes," and that " monies would be coming in from Songster." Here then was evidence from which a jury might infer a general authority from the oen but nixtunl for him to hivvc asked tlio iii^inits of tlio J'ank why tliey reiinircd an uiidcrttiUingiVom hiin for past iulvancos to Soiii/sler when none had been nuulc, unless indeed ho was aware th.vt lixi Hank kept these advances chargi'd in a sejiarate and distinct ai'coiint. These advances were made by the l>ank from 1812 to 181,"), when they ceased, and were it not that the defendant has pleaded the statute of limitations, there coidd not, in my opinion, be the faintest jrronnds for sotting aside the verdict. The effect of this plea is now to be in(inired into. I'pon th(; part of the plaintiffs it is contended that the payments made by S(>iii/s/<'r within six years before action brought, were made on account of the ndvanct s previously received by him from the I5ank on the defendant's account, and thcrefure woidd take the case out of the statute ; but that if not sutficieiU for thai purpose, then the settlement o\' the ."iceounls and the acknowledgment of the 12th Jan- uary, is.')!), were either made i)y Soi>(/sh'r as the agent of the defend- ant or as a partner, and in either case would nullify the plea. As respects tiie cfHict of the payments it is unnecessary for me to decide, yet ill passing I cannot avoiil saying that they appear to n)e to have more the character of set off. than payments to take the case out of the sta- tute. jMy opinion in favor of the plaintitFa retaining the verdict is fountled upon what I eousidi'r was a partnership between the defendant and Soinjsfer, and consecpiently the act of one is bimling on the other in matters connected with the p;utuership. The evidence in this case as ^■ivvii ijy Siu'^sfrr at the trial, is that after he settled the account with tlie deleiulaiit in .laiuiary. 11^12. i'ov building the railroad and wharf, lie then wi'nt into parlui'rship with hint on the followi; g terms, viz., " after the expenses of making ilic ipiarries were paid, the defendant was to rcv'eive two-thirds jind he one-third of the prolits." The accounts wiiiih wrr(; put in nii thi' dclcnce su-taiiiliie evidence of .'^oHr/.s/cr. they ire sigui.'d by him und the ibt'endant, and shew that the len^cs oi'tln! (piarri' -^ wlM'c worKinir ex- ^t paid, and then the Italauie of the i)ro- cceds of the jdiiisti 1- -old wa> divided betwevu then\ in the pro])ortii)u two-third- In tin ij.iiit :uid oiie-lhird to Soiiifsfcr, and thi^ state .ftiiiui continued ln'twcen fhi-m dov'ti to IS IS when a new agree- nirnit i- matie. but of a M^ry different character from the previ ons one. Tl le new aureeineiii i- a lease (if the . .•{■•5 by the difFercnt writers on the subject. To constitute a partnership be- tween the parties tliemselves there must be a communion of profits be- tween tliem, a communion of profits implies a commimion of loss, for every man wlio lias a share of the profits of a trade ought also to have his share of the loss. 2 Sir William liluckston !)00. In Dry \. Bos- well, 1 Camp. ;3i5U, which was an action for work and labour, the only question was whether the defendant was liable. The witness stated that the lighter upon which the work was done was the sole property of a person of the name of linsscif, that she was let out by him to the defendant who worked her, and that the two shared her profits e(iually between them. Lord EllaiboroKf/h said that in that ease the de- fendant was to be considered a partner, and was jointly liable for the repairs done to the lighter. So where one person advances funds to carry on a particular trade, and another gives his personal services, for whicli he is to receive a proportion of tiic profits, there is a partnership existing between them, boih as regards tiie parties and third persons. (^ol/i/cr an Parlnership, sec. f58, L„rd Eblon in Kr parfc, Hamper. 17 Ves. 10.'!, says, if a trader has a specific interest in tiie profits themselves, as profits, " he is a partner," and in tlie same case he says, " if a man as a reward for his labor chooses to stipulate for an interest in the profits of a business, instead of a certain sum proportioned to those profits, he is as to third persons a partner." Shiyi/ on l'artners!iip, sec. 2o, says '* by the law of Enghmd, if a partner ^liare in the advantages, lie also shares in all the disadvantages." In the present case the defeiulant was to sliare in the profits, and if tliere was any disadvantage resulting from tlie manner in which tiie business was conducted, he must bear thecon- serpiences. In ]V((ii(j!i v. ('•irver, 2 II. IMack 217, Lord Clncf Justice Eijrc says, " he wlio tikes a moiety of all the profits indefinitely shall by operation of law be made liable to losses, if losses arise, upon the principle that Ity taking part of the profits he takes from the creditors a part of that fund which is the proper security to tlu'in for t'le payment of tlH>ir debts." The defendant here lias taken two-thirds of what I ad- mit he was led to siipiiose were profits, but whicli in reality .Miould have gone to the plaintifis in tlio first instance to liquidate tli3 advances made !)y tiiem fur the bentMit of the p.artnership business. Where two per- sons agree si:ui)l_> : ■ share t!ie profits of a trad" or adventure (as in the jirc.^cnt case), they will bT. and received his share of the profits in lieu of wages, then, as there is no mv. Tility lift ween the parties, they are not partners. CnUijcr, se-. 7'.», says, - tlie main feature in the con- tract of partnership is tiie coinnHiiiion of profits l)etween the parties, without t/iaf. f/uali'ti/ a prtrtncrsfi))) munof exist, and with it a case can fmrdli/ he staled in which a partucrghlp shall not exist,'' How can it b<" ."■aid, then, if this be law, that n partner-iliiii did not exist as between 8fi6 BANK OF NOVA SCOTIA v. HALIBURTON. F! n , v the defendant and /Songster, Imving it in proof from Soncfsler himself that they were partners and that a communion of profits existed between them, and this corroborated by the accounts given in evidence on the defence. It was, liowcvcr, said at the argument that if the defendant was a partner, then he was a dormant one, and might at any time retire from the partnership without being liable, unless to those that were aware of his being a dormant partner, but I do not fmd this position sustained by the authorities, although I admit there are some few dicta in favour of it. Lord Loughborough in Coope v. J'Ji/re and others, 1 H. Black. 37, said " a secret partnership can be no consideration to the vendor, though for reasons of policy and general expedience the law is positive with re- spect to the secret partner, and when discovered he is liable to the whole extent." It may be laid down as a general rule that partners are bound nniversaliy by what is done by each other in the course of the partner- ship business. Gow on Partnership, 30. And the rule is applicable both to dormant and nominal partners, and it is now an undoubted and universal proposition that a dormant partner is in all cases liable for the contracts of ihc firm during tlie time he is actually a partner. Collyer, sec. 384, who cites 1 Doug. 381 ; 1 II. Black 37 ; 1 Cronip. and Jervis 316 ; and in sec. 385, he says " it makes no diiference as to third persons whether the partnership is carried on for the benefit of the partners themselv.es or for the benefit of their cestui que trust. Both the trustees and the cestui qw trust are liable. The only remaining question, now that I have arrived at the conclu- sion that a partnership existed between the defendant and Songster from 1842 to 1848, and that whetlier the defendant was a dormant partner or otherwise, the acts of one were binding on the otiier during that period, for all matters connected with the partnership, is the question raised by the plea of the statute of limitations. It is said that the acL and assurance of one partner made with reference to business transacted by the firm will bind all the partners. Hence the promise, acknowledgment, or un- dertaking of one partner with reference to the contracts of the partner- ship is the promise, acknowledgment, or undertaking of all. Story on Partnership, sec. 107. Wood v. Braddick, 1 Taunton 104, which is a leadin" case, and has been sustained by several subsequent cases, was an action to recover from the defendant the proceeds of certain linens which had been consigned to the defendant jointly with one Vox, who was then his partner. The defendant pleaded the general issue and the statute of limitations. The plaintitt' proved the partnership and a letter from Cox, dated after the partnership had been dissolved, stating a bal- ance due to the plaintiffs of £019. It was objected on the part of the defendant that the letter being written after the dissolution of the part- nership was not admissible to charge the defendant. Chief Justice Mans- field overruled the objection and the plaintiff had a verdict. Upon a y.l,.,« ' ) ' r -' / EASTER TERM. 1855. 857 motion for a new trial the Ciiief Justice said, " clearly the admission of one partner made after the partnership has ceased is not evidence to charge the other in any transaction which has occurred since the sepa- ration, but the power of partners with respect to rights created pending the partnership remains after the dissolution. Since it is clear one part- ner can bind tlie other during all the partnership, upon what principle is it that from the moment wlien it is dissolved his account of their joint contracts should cease to be evidence, and tlmt those who are to-day as one person in interest, should to-morrow become entirely distinct in in- terest witli regard to past transactions which occurred wliile they were so united." Heath, Justice, said, " is it not a very clear proposition that when a partnership is dissolved it is not dissolved with regard to things past, but only with regard to things future. With regard to things past the partnership continues and always must continue." And in Goddard V. Ingrain, 3 Q. B. 839, it was held that a payment by one of several partners, though made after the laspe of six years, in fraud of his part- ner, and in expectation of imminent bankruptcy, will disprove the plea of the statute of limitations. Collyer, sec. 425, says that according to English authorities " payment of principal or interest by one of several partners on account of a joint debt will operate as a new promise to pay by all the joint promlssors, and be an answer to a plea of the statute of limitations," and the 9 Geo. 4, c. 14. does not alter the decisions on this subject. 1 B. and C. 248 ; Dow. and Ry. 363 ; 8 B. and C. 38. Fraud has been imputed here to some of the parties, whose acts have made the defendant liable, but it must be recollected that the defendant told Song- ster he did not wish him to mention the terms upon which they worked the quarries, and that the terms never came to the knowledge of the plaintiffs, which may account in some respects for their acts which ap- pear at variance wltli a partnership between the defendant and Songs- ter. The jury have by the verdict negatived fraud in the plaintiffs, and it is not an uncommon thing for one partner to suffer by the fraud of his co-partner, who is nevertlieless bound by the fraud, in contracts re- lating to the partnership, made with innocent persons. And in conclu- sion I may say nearly in the language of Lord Mansfield in Willis v. Chambers, Cowp 814, that if the defendant suffers by the rascality of a man in whom he has placed confidence I am sorry for him, but upon the evidence I cannot say but that there is a partnership transaction, and that in point of law the acknowledgment made by Songster in Ja- nuary, 1850, takes the case out of tlie statute of limitations, I therefore think the rule for a new trial should be discharged. At the close of the argument Mr. Harris urged upon the Court the p^round of suspicion as a cause for a new trial, but I have not urged the point as it was not supported by affidavits, wJiich arc always necessary to sustain the application for a new trial upon that ground. Jijtt UANK OK NOVA SCUTIA /•. lIAI.lliLKTON. I have only to uJJ that tliu Court regret ox.ccciliii;j;ly tlial liic illiiojsrt of his lurd.ship the Chief Justice prcveulci hid duliveriug the opiiiiuii which 1)0 had prepared in this case, and tlic luore e.s|)ecially as from uuavuidable circumstauces two of the jiidjres are prevciilud from takiiiy ]>urt in the decision, but it lic said to the in- >^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I tatTA |25 ■JO ^^ ■■■ mm m m m lii LS 12.0 IL25 iU liiSi Photograiiiic Sciences Corporation 23 WIST MAIN STRUT WnSTIR.N.Y. MSM (716)S72.4S03 •^ .>% ^ i 3G0 Bi\NK OF NOVA SCOTIA v. IIALIBURTON. i^ testate in Allen's presence, " You must apply to Allen and he will pay you." The work being done, the plaintiff relied on an admission of thty debt by Allen to take the case ont of the statute. Lord Ellenhoraugh held that Allen's agency having been clearly established, his admission of the debt was binding on the defendant. And in the case of Gregory V. Parker, I Camp. 394, for goods sold and delivered to the defendant^ wife for his accommodation, the 8am« learned Judge held that the goods having been supplied for the wife's accommodation, she might be con- sidered as her husband's agent respecting theor, and that her letters were admissible evidence of an acknowledgment of the debt within six years to take the case ont of the statute. The case of Anderson v. San- derson, 2 Stark 204, is to the same effect. Now the agency of Songster being established, it would seem, according to these cases, to have been within the scope of his authority to make a settliement with the plain- tiffs' agents fbr the monies he had received and paid in at the Bank, and, if so, the settlement made on the 12th January, 1850, being an ac* knowledgment of the debt dtte to the plaintiffs, was binding on the defendant ; and evidence of a new promise to take the case out of the statute, as the payment in December 1850 would have been if it had been made specifically *on account of this debt, of which there is no proof. I do not, however, rest my opinion on this point, as there is another,, relating to partnership, on which I entertain less doubt, and which, as it strikes my rrrind, must decisively govern this case. The settlement referred to, which is signed by Songster, purports to be a settlement of an account for monies received by him' from ISng if Fra- ser for himself and the defendant, and shews distinctly that Songster at least considered himself at the time jointly liable to the plaintiffs with the defendant for the debt incurred. The agents o( the plaintiffs, it seems, were ignorant of the terms on which Songster worked the quar- lies. They advanced him monies out of the funds of the plaintiffs ai the request and on the credit of the defendant, without taking the trou- ble to ascertain the relationship in business that existed* between them, quite content to make such advances on the responsibility of the defendr ant. But in wiiatever capacity the plaintiffs may have regarded hino, it is evident from Songster's own testimony that he considered himself a partner, for, in speaking of n settlement made with the defendant in 1842, he says, *' 1 tlien went into {lartnei ship with Judge Haliburton upon the following terms ; after the expenses of working the quarries were paid the Judgs was to receive two-thirds and I one-third of the profits." Here then is evidence of an agreement between Songster and the defendant, by which tliey were to participate in the nett profits arising from the defendant's quarries, in the proportion of one-third to the former and two-thirds to the latter, wliicii in my opinion clearly con- stituted a paitnei'sliii' between Ihem, at all events as to third persons. ^ ■ 11 EASTRR TERM, 1855. 361 «\en if it was not so intended to operate as between themselves. The cases of Gran v. Smith, 2 W. Black 998 ; Waugh v. Ourver, 2 Ilarrj Hlack. 235 ; and Hesketh v. Jilaachctrd, 4 East 1 44 ; are nnthoritles among others to shew that when two persons agree to share the profits of a business with each other, though a partnership may not be intend- ed as between themselves, they shall be considered as partners as rc> gards their transactions with the rest of the world, upon the principle that he who takes a share of the profits shall by operation of law be liable for losses if any arise, inasmuch as by taking a part of the profits he takes from the creditors a part of that fund which is the proper se- curity to them for payment of their debts. It is true that the plaintiffs did not deal with the defendant as a partner of Songster, but if a part- nership did exist, as I think it did, in respect of the quarries, between Songster and the defendant, at least as to third persons, though unknown to the plaintiffs at the time the advances were made, it follows that any settlement or acknowledgment made by Songster with and to the plain- tiffs for said advances, must be equally binding on the det'endant as on himself. In Whitcomb v. Whiteny, 2 Doug. 651, which was an action brought against one of four makers of a joint and several promissory note, to which as in this case the general issue and the statute of limitations were pleaded, proof was given of payment of interest and a part of the principal on the note, by one of the other makers, within six years, and the judge being of opinion that this was sufficient to take tho oase out of the statute as against the defendant, a verdict was found for the plaintiff. A rule nisi was granted for a new trial, and on argument it was held by Lord Mansfield ^ that payment by one is payment for all, the onn acting virtually as the agent for the rest ; and in the fame manner an admission by one is an admission by all : and the law raises tho promise to pay when the debt is admitted to be due." In Wodd and others, as- signees, Sfc. V. Draddeck, 1 Taunt 104, the principle is laid down that an admission made by one of two parties, of a partnership debt, after dissolution, is binding upon and evidence of a new promise to take the case out of the statute as to the other. That was an action brought to recover from the defendant the proceeds of linens which the bankrupt had consigned for sale to the defendant jointly with one Cox, who was then his partner, to which the general issue and the statute of limita- tions were pleaded. The plaintiffs produced a letter from Cox at the trial stating a balance to be due to the bankrupt upon this consignment within six years, and it being proved that Braddeck and Cox had dis- solved partnership previous to the date of the letter, an objection was made that this letter, being written after the dissolution of the partner- ship, was not admissible evidence to charge Braddeck. The objection was overruled and the jury found a venlict for the plaintiff, and on mo- tion for a new trial it was refused. Mansfield, C. J in delivering hit U2 HANK OF ^aVA SCOTIA i\ HALIBURTON. i\ i-S: opinion in that case said, " Clearly the admission of one partner made after the partnership has ceased, is not evidence to charge the other in iiny transaction which has occurred since their separation ; but the p»>wer of partners with respect to rights created pending the prrtner- ship remains after the dissolution. Since it is clear that one partner can bind the other during all the partnership, upon what principle is it that from the moment when it is dissolved his account of their joint contract should cease to be evidence, and that those who are to-dny as tn\G person in interest should to-morrow become entirely distinct in in- 4erest with regard to past transactions which occurred while they wore imited." So again in the case of Burleigh v. Stott, 8 Barn, and Cres. iiO, the principle laid down in Whitcomh v. Whitemj was recognized and affirmed, that a part payment by one of two makers of a joint and se- ,veral promissory note was an admission by both that the note was un- satisfied, and that it operated as a new promise by both to pay accord- ing to the nature of the instrument. And in a late case of Goddard \. Ingram, 3 Q. B. 839, when a person then dead, being one of three per- Rons who had been partners, made a payment to the plaintiffs within ?\\ years before action brought, on account of a debt contracted during llie partnership, and when the jury found that ihe payment was made in fraud of the two defendants, his former partners, the Court neverthe- Jess held that the payment barred the operation of the statute. It is clear, therefore, from all these authorities, that if the defendant and Songster are to be regarded as partners in the quarries, as I think upon •he evidence they unquestionably must be, the settlement made by Songster on tlie 12th January, 1850, with the plaintiffs' agents, in which u sum of money is admitted to be due to the plaintiffs, is evidence of a new promise by both to take the case out of the statute. I am free to admit that tiiis is an exceedingly hard case upon the defendant, called .upon as he is to pay a large sum of money for advances of which noac- v'ount was ever rendered him by the plaintiffs' agents, as in the usual course of business they ought to have done, yet I do not feel myself at Jiberty to say that the jury were not warranted in arriving at the con- clusion they did, aud that the verdict they have found ought to be set aside. Tiie very extraordinary aad unusual neglect of the plaintiffs' agents to render accounliii to the defendant, from time to time, of the advances made, as well as the no less extraordinary omission of his own agent or partner, except for one or two years, to inform him of the 4imounts which he received from the Bank, well justified tiie defendant in seeking protection under the statute, against the payment of a claim so long outstanding and so recently demanded, biii we cannot weigh jiardships, we can p.ily inquire into legal claims and liabilities, and being of opinion that there is evidence to sustain the verdict in ^his case, if npt on tlie ground of agency, certainly on the ground n KASTRR TERM, 1855. 3G8 of purtnersliip, I think the rule for a new trial must bo dischar- ged. Note. The imperial statute of 9 Geo. 4, c. 14, (Lord Tevterden'i act,) which has been lo-enactcd here and is incorporated in chapter 38 of our revised statutes, was not in operation at tlic time this axtion wa< brought, and does not, thereforo, apply to this case. Kule discharged. McDonald v. Sutherland. April 14. A party who enters upon and takes possession of land to which he h.^s a right, may maintain trespass a^^ainst n person who, being in possession at the time ofcntry, wrongfully continues upon the land. Trespass tried before Haliburton, J. at Pictou, in October 1854. Verdict for plaintiff. In Michaelmas Term the Attorney General moved to set aside the verdict on the grounds that it was against evidence, and also that there was no possession in the plaintiff to maintain trespass, tho plaintiff having SO years ago admitted the boundary as claimed by de- fendant, and the latter having had actual possession of the locus for 17 or 18 years previous to the alleged trespass. He contended that the plaintiff should have brought ejectment under these circumstances, and cited 1 M. and R. 486 ; 8 lb. 414, 5 ; 10 Pick. R. 161 ; 7 B. and C. 399 ; Cro. Eliz. 540; 12 Ad. and El. 624 ; 14 M. and W. 487 ; also, McLean v. Jacobs, Thomson's N. S., Rep. 6. ; Davison v. Kinsman, James's N. S., R. 1. This point, althougli not moved by way of non- suit, was put to the jury in closing. W. Johnston contended that this was a question for the jury, as the point depended on tlio view the jury took of the evidence, which was conflicting. There was no evidence of the plaintiff being aware that the defendant was over the line or that he acquiepced in it, and thus dis- tinguished this case from those cited. Mc Cully, in reply, argued that the proposition that in order to giv« effect to the settling of a boundary line by parol, all the parties mvM have a full knowledge of the circumstances, must to some extent be mo- dified. In Davison v. Kinsman, one of the parties would never have consented to the boundary had he known the extent to which his recog- nition would have operated against him subsequently. Cites Langille V. Langille, Thomson's Rep. 130 ; and distinguishes the cane from SGI McDonald v. Sutherland. Butcher v. Butcher, in whicli a formal entry was mnile upon the Inndg before action brought. Tr:E CouiiT now (lelivered judgment. Bliss, J. The plaintiff and the defendant are the owners of lands lying contiguous to each other — both deriving their titles under several grants from the Crown — that of the plaintiff being the elder. It appears beyond a doubt, from the evidence, that the land on which the alleged trespass was committed lies within the bounds of the plain- tiff's grant. The title is, therefore, clearly in him, but the defence set up in the action was that the plaintiff had recognised and acquiesced in another line between them by a birch tree, which gave the land in dis- pute to the defendant. This was a subject peculiarly for the jury, and was expressly left to them by the learned Judge, who directed them that if they could find a clear admission and recognition by the plaintiff of this line, it must be upheld. There was no other admission of the line claimed by the defendant, except of tiie birch tree itself, which is not now standing. When it ceased to exist as a tree, does not appear, but the stump of it, as several witnesses stated, was there a short time ago ; one of the witnesses, how- <;vt'r, said that he would not swear to that stump being part of the tree in question, though he thought it was. It appeared that there had been two distinct surveys — one by McKay, the other by Ross — on which this bircli tree line was said to have been established ; but neither of these surveyors was called by the defendant— a circumstance which was ad- verted to by the learned Judge in his clmrge. Now, if tliere be one case more than another which requires the clear- est and most satisfactory proof, and on which there should be no room left for doubt or uncertainty, it is where a line, in opposition to the true line, is endeavored to be established by the assent and admission of a party. It is not enough that there should be evidence of this. The jury may, I thinl<, not unreasonably require that the most satisfactory wliich can be adduced should be laid before them. In this case there was a further necessity that it should be so. It appeared that that part of tlie land where the birch tree had stood had been swept by the great gale of 1839, when all the trees there were blown down ; there was no line to be traced from this supposed corner which could help to identify ♦he stump ; on the opposite corner, and as far as the woods were left, the true line was visible and distinct ; and this true line could by no possibility, if extended, touch the birch tree. It was then by no means impossible that there might still be some mistake or doubt as to the identity of this birch stump, and the jury may not have been fully sa- tisfied on this point. Whatever effect the evidence might have produced %¥■ u the Innils s of lands ler several I on which ' the plnin- efcncc set luiesced in and in dis- sly left to }uld find n t must be defendant. When it as several jsses, how- )fthe tree I had been which this r of these ;h was ad- I the clear- 3 no room to the true ission of a his. The itisfactory :ase there t that part the great re was no to identify were left, lid by no no means as to the I fully sa- produced EASTER TERM. 1855. 365 un my own mind, I cannot say that it ought necessarily to have been so conclusive with the jury that they were bound to find a vcnlict for the defendant, and thus to establish a line by which the pluintiiT would bo deprived of a part of the land which he held under his grant. There was another point on which the defendant also i*elied — that the plaintiff, being out of possession, could not now maintain trespass. But this is disposed of by the case oi Butcher v. Butcher, 7 B. and C. 402. There Bailey, J. says, " a party having a right to the land ac- quires by entry the lawful possession of it, and may maintain trespass against any person who, being in possession at the time of his entry, wrongfully continues on the land." And Lord Tenterden in the same case says, " it is not necessary that the party who ir.akes the entry should declare that he enters to take possession ; it is sulficient if he does any act to shew his intentions." The survey which was made by James Holmes the surveyor in June 1853, for the plaintiff, and with him, was as clear an act to indicate this intention as could possibly take place. It was an open, distinct claim of the plaintiff's right to the land within the line then retraced, and was an exercise of possession over it in the very presence of the defendant. He was, therefore, clearly entitled to maintain trespass against the defendant for any act done by the latter upon the land afler this. I think, therefore, that the rule for a new trial must be discharged. DoDD, J. The plainti£r in this case proved a grant from the Crown dated in May, 1828, which covers the lands in dispute. The defendant claims by a line to the southward of the grant line, and contends that it is the acknowledged and recognized line, and agreed to by the plaintiff for a long period of years before action brought. The evidence re- specting this conventional line was submitted to the jury by the learned judge who tried the cause, and their verdict was against it. The case, I think, was properly left to them, and I do not see how their vei-dict can now be disturbed. In the cases referred to by the Jttorney Gene' ral at the argument of McLean v. Jacobs, Thompson's Reports, page 6, and Davidson v. Kinsman, James' Reports, page 1, the jury in both fcunil in favor of the conventional line and the Court refused to disturb the verdict ; and in this case the law was laid down to the jury upon the same principles that decided those cases, and had they found for the de- fendant I do not think in that case their verdict would have been inter- fered with. The case oi Merlin v. Taylo,,Z Bing N. C, and Byland V. Allan, decided in the Court of Exchequer, Michaelmas term, 1849, and from which I have largely drawn in the case of the Bank of Nova Scotia V. Haliburton, in the opinion in that case which I have just de« livercd, clearly shews that when the verdict has turned upon a question of fact which has bccu submitted to a jury, and the objection to the ver* 866 Mcdonald v. Sutherland. diet is that it is found, in the opinion of the Coart, ngalnst the weight of evidence. The Court ought to exercise not only a cautious, but a strict and sure judgment, before they send the case to a second jury. In the case under consideration the evidence is not conclusive that there ever was a line diiTering from the grant line, or if there was, that it was as- sented to by tne plaintiff with a full knowledge of all the facts, for with- out such knowledge ho would not be bound, unless by an acquiescence in it he induced the defendant to alter his position and thereby affect his rights. It is one of those cases peculiarly for a jury, and, although they may have found against the weight of evidence, I do not think on that ground atone their verdict should be set aside, particularly as the judge who tried the cause is not dissatisfied with it. Upon the second point, as to whether the plaintiff had such a posses- sion as would enable him to maintain trespass. The grant from the Crown gave him the possession of the whole lot, and I am disposed to think he has never been out of possession so as to prevent him from maintaining the present action, — he possession of part being the posses- sion of the whole, and the acts of the defendant amounting only to acts of trespass. But admitting he was, by the acts of the defendant, out of possession from the perio'd of the defendant's going upon the land up to the survey made by the plaintiff in the year 1853, yet for all purposes nenessary to maintain trespass, this survey was such a re-entry by the plaintiff that there is not any doubt he can maintain the present action. The rule, therefore, for a new trial, in my opinion, should be discharged. DesBabres, J. There being evidence of an exclusive possession in the defendant, for several years, of the premises in question, I was at first under the impression that the plaintiff, though clearly the legal owner, could not maintain this action, but the case of Butcher v. Butcher is an authority to shew that when the party having a right to the land enters and takes possession, he may maintain trespass against a person who, being in possession at the time of entry, wrongfully continues upon the land. I think the running of the boundary line between the plaintiff's and the defendant's lot of land was such an entry and taking of posses- sion as entitled the plaintiff to maintain this action, and that the verdict ought to remain. Rule discharged. 11 1 KASTER TKRM. 18:)5. Uf ROBERTS v. PATILLO. April 14. ' It is safflcient to specify tho dcfAmatory sense of libellons words in the form of an iiiufjtdo witliout otiier averments. Decisions of tho United States Courts, although entitled to respect, are not bind ing on our Courts. Tliis was an action of libel tried before DesBaukks), J. at Liverpool ill October term. Verdict for plaintiff. Damages £50. The offence charged in the writ was " that the defendant falsely and maliciously published of the plaintiff in a newspaper called the Liver- pool Transcript the words and figures following : — Caution to the Public. Liverpool, December 3rd, 1841. On demand for value received I promise to pay to Thomas Ji. Pu' lillo or order five pounds ten shillings currency, with lawful interest until paid. John Robekts. The maker of the above note has availed himself of the statute of limitations and refused payment. T. R. Patillo. The said Thomas R. Patillo meaning the Sy that all persons should be cautious of having any dealings with the said John Roberts, as ho was a person who would avail himself of the law to avoid payment of his just debts." There were several other counts varying the form of the inuendo. The defendant pleaded that he did not publish, and also several pleas justifying that the words charged were true, and that the plaintiff had in the particular instance charged availed himself of the statute of limi- tations to avoid the payment of a just debt. The only proof given was of publication. Ritchie now moved for a rule absolute to set aside the verdict, on the. grounds thr»t there was no libel in the words per se, no averment to make them libellous, no proof shewing a malicious animus on the parf of the defendant, and that the inuendos were not ju:5tiKed by the mean- ing of the words used. In the absence of proof to put a malicious construction on the de- fendant's conduct in publishing, 'something of a libellous nature must appear on the face of the publication ; but here there is no offensive charge whatever, as the plea of the statute of limitations is not only authorized by law, but is often ajust and necessary plea. Nor is it suf- licient tliat the publication was calculated to annoy or injure the party charged, unless it were neces.sarily so. Cites Holt (2d cd.) 218; I Slark. Libel 171 ; 1 Price R. U ; 1 Buig. 102; Ad. and El. 282 ; 2 soe ROBERTS V. I'ATILLO. Cur. nnd P. 252 ; 6 B. nml C. loi ; 2 Young and Jurvis 14C ; 4 Coin. Bench R. 259 ; 12 Ad. nnd El. 719 ; 1 Dowl P. R. 672. The proof of publication is insufficient, for nithough it was proved to have been inserted in the " Liverpool Transcript" there is no proof that the paper ever went out of the ottico. CoLUT. Was it itot read by the publisliei* of tlio paper who proved its insertion ? Jiitchie nr:> U9 «ary ihnt matters of fact,— and thia inuendo U nn Al1(>(];ntion of a fact, — .'huiiid be stated in any tcc-linical or formal manner. Pracl. Act, ». r>4 ; «tliun, then, it nppcnrM to nio, is wlinthor thnt meaning c-un he aiipportiHl, and whotlior the puhhcation in that senr^c i.s liholloii.-'. It is .'4Hi(l that it onnnot he. actionuhlo to .sny of anothoi- tiint lio hn^ availod liinHolf oC ihi- statntc of limitations to refuse payment of n pro- uiis>«»ry note, for it is merely to assert that he has done just what the law luithorixcil him to do, lint that, I apprehend, cannot be a true criterion of what is libellous or not; it may be perfectly lawful for a man to do many things, the imputation of which would subject him to contempt, ridicule, or disgrace, and which it would bo, therefore, libellous to print and publish of him. There may bo a strictly legal right, the resort to which in some cases would be morally wrong. The statute of limita* tions, though it oiVv.n a legal, and often a most just defence, is capable, like every other good, of being abused and perverted to an improper end. And there m.iy be occasions in which no one can well make use of it without necessarily having his reputation injured thereby. When a publication of such a fact appears i'l a newspaper, without any circumstnnccs to call it forth, or any thing to explain it, what is the intention and moaning which we shouUl naturally attribute to the wri- ter ? Did he mean to say that the plaintiir was right or was wrong in what he did? He cannot allege that he merely stated a simple fact without any covert meaning — people do not thus rush into print without some motive, nor at all events will others so believe it. Nothing being added which would excuse the debtor, the creditor mxy fairly bo sup- posed to charge hiin with making use of the statute to avoid the pay- ment of a debt which was justly due, and which in common honesty he ought to have paid. But the publication is ushered in with a most sig- nificant heading — " caution to the public" — and therein lies chiefly its sting. What is the purport and meaning of this ? The public are not put on their guard against the innocent actions of others, but such as we deem dangerous, wrong, and improper. The very word caution carries with it an imputation, and when a particular act is attributed to another, and a caution is given to the public in respect of it, this is not merely to announce the fact, but it is to pu^ them on their guard against the indi- vidual as one from whom such coitduct is to be expected, and of whom they arc, therefore, to be wary in their dealings ; and thus an imputation upon his general character lurks under such a publication. To speak of a person thus, to impute to him such conduct, is well calculated, it appears to me, to I ssen him in the esteem and good opinion of others as an npriglit, just, and honorable man. If he resorted to such a defence when it was his only ground for refusing payment, however legal it uught bo, it would be looked upon by others as dishonorable and dis- honest. And if he wore a person who thus usually stood upon Jiis strict- KASTKll TKllM, 1«:..*. a7i ing being O.St Ifgal riglitH U> refuse, |inyiin;iits of ilcbts jiiHtly diK! by liim, it would luivn a natural tendency to atlerl hi.4 dealings witli all to whom tliia eburncter was known. The jury have viewed it in tiiirt light, and I can- not think thity were doing wrung in putting this interpretation upon it, nor, having thin meaning, ean 1 ^ay that it does not amount to an in- jurious and libellous publication. I think the rule tor a new trial must l)u discharged. Doi)i>, J. ooneursi. IJKi^IVvitur.s, .T. This U an action on the case for a libel that was tried before mo at Ijiverpool, in which a verdict was found for tiie plain- tirt'for iloU damages, and having granted a rule ni'ti to set the verdict aside, the case was argued before us in Michaelmas term upon two grounds. Ist, That tlie words set forth in the declaration do not con- stitute a libel ; 2iid, Tiiat assiuning the words are libellous there was no proof of publication. It was proved that the article complained of liad been inserted at the defends, it's request in a weekly newspaper called the " Liverpool Transcript," which had between si.i and eight hundred subscribers, ;>'ong whom it was circulated. This I thought at the time was suillciont evidence of publication, and the only question that, it appeared to mc, could possibly arise wa4 whether the publication itself was actionable. On that point I entertained a strong opinion which I expressed to the jury, and, after looking into the case and con- sidering the subject more deliberately, I find myself compelled to declare that my opinion is unchanged. It was contended at the argument that this publication was not libel- ous ;>er se, and that as the declaration contained no prefatory averment pointing out its meaning, it was a perfectly innocent and harmless publica- tion, conveying no imputation against the character of the plaintiff; be- cause it was said the pleading of the statute of limitations docs not ne- cessarily imply dishonesty in him who seeks protection under it. What- ever the effect of the article may be there can be no doubt as to its publi- cation, and as by the Act of 1853, chap. 4, sec. 83, it is now only necessa- ry to aver in actions for libel or slander that the words or matter com- plained of were used in a defamatory sense, (all prefatory averments being dispensed with,) the sole question for consideration is whether the article published by the defendant is or is not a libel, as it is declared upon. The definition of a libel is thus given by a celebrated and learned jurist, " A libel as applicable to individuals has been well defined to be a malicious publication expressed in printing or writing, or by signs orpic< turcs, tending to blacken the memory of one dead or the reputation of one alive, and expose him to public hatred, contempt, or ridicule, 2 Kents' Com. 17." Now it is clear from modern decisions that Courts are not now to read the words of a libel in mitiori sensu, but to understand them i\ri UOBKllTS I. PATIIJ.O. l!= Pi H ' Tilt i' ill the same sense in wlucli the rest of the worlj would read them, accord- ing to their phiin and ordinary import. Reading the heading and conolu- eion of the article, and taking it altogether, the words are very significant und their meaning is unmistakable, so much so that I think it i^ impossi- ble to say tiiey convey no imputation against the moral character of the plaintiff. No person, it appears to me, can read this publication without titonce seeing that it was meant and intended to convey, and that it does iictualiy convey, a serious imputation against the plaintiff, the tendency of which is to destroy his reputatio'i and credit, and expose him to tlio contempt of all honest men. In Capel v. Jones, 4 Com. liench Re- jtorts, 204, Wilde, C. J. referring to actions of this nature says, " In all these cases if by any reasonable intendment a jury could infer that the publication complained of reflects on the moral or professional reputa- tion uf the plaintit}', it is tlie duty of the Court to send the matter before them." I thought it was my duty to send this case before n jury, and they have shewn by their verdict the sense in which they viewed the publication. There are no ambiguous expressions in this production, the plain meaning and import of which is that the plaintiff had availed himself of the statute of limitations and refused payment of a note pay- able to the defendant, nob because it was not justly due, but because the statute protected him. Again it was objected that, admitting the .a'licle does contain an imputation of some kind, it is not such as is set forth in the imiendo. I do not concur in that view, and still think as I did at the trial that the inuendo is the fair and natural deduction from the words used. But, assuming it to be bad, that will not now uifect the case, as it may, it seems, be rejected as surplusage. Roberts v. Cam- den, 9 Kast, 93, is an authority in support of this position. Tiie case nf Wakley v. Healy, 7 Com. Bench 591, is to the same eft'ect. In that case an objection to a count in the declaration was made that the in- uendo was bad, Parke, B. in delivering the opinion of the Court said, " Supposing this objection to be well founded, tlie only consequence is that the imiendo is to be rejected, and the question than is whether the words themselves, without an inuendo, are actionable. After verdict it must be taken that the jury found that they have been published with- out lawful excuse, and are such as to be injurious to the plaintitl's' cha- racter, as it has been the practice in modern times to leave the latter point to them. And if in their ordinary acceptation, und witiiout tlie aid of extrinsic circumstances, the words may be reasonably understood w» derogatory to the plaintiff's character, the judgment cannot be ar- rested.' Here then is an imputation of dishonesty against the plaintiff in refusing to pay a just debt, merely because it was burred by the sta- tute. That assuredly is derogatory, and must be very prejudicial to the plaintiff's character, and, therefore, 1 think, he is entitled to retain his verdict and that the rule must be discharged. l^ilc disciiargod. EASTKR TEKM, ISoi). 373 MELANCON v. COMEAU. April 14. The owner of a wrecked vessel is not bound to defray (he return passage of tho seamen. The transfer of the materials of a wrecked vessel by the master for that pnrposo held not to change the property in \he goods. The plaintitFtook issue upon n plea which was held to disclose n defence insuflS- cicnt in substance. Verdict for defendant set aside, and a repleader awarded. This was a motion argued in last Michaeltnas Term for a new trial in an action tried before IIaliburton, J. at Digby, in May term 1854, for converting to the defendant'.s u.se fifteen blocks, one coil of rope, and other articles of the plaintiff. The defendant pleaded " that the goot. Soignee proves that his own mate and crew demanded the articles in dispute to pay " passage or wages," and this is sufficient evidence in support of a verdict. Besides, the ves- sel was proved to have been wreckod with these men on board, and there is a presumption that the mc. are entitled to salvage, and the ar- ticles may have been given to them in compensation of that claim. In this cas(5 the sale does not, however, appear to have been from necessity. There is no evidence whatever of necessity for the sale, and therefore it does not differ in its character from an ordinary voluntary EASTER TERM. 1856. 375 sale for the benefit of the owner, in which case the law provides (Imp. Act, 7. and 8. Vic. c. 112) that the seamen shall be brought homt at tho expense of the owner of tlie vessel. The policy of the law, as well as the inclinntidn of the Court, has always been to ameliorate the condition of a class of men who are taken from their homes in this province and carried over tlie world, and whose interest it is that means should bo provided by law for their return in cases such as the present, and the Court will not adopt a rule to the contrary, when no case has been cited to shew that the right does not now exist, as it formerly did. Cites Molloy 214; Laws of the Sea 203; Emerigon on Ins. last cd. 717 ; Arn. Ins. 2. 1194. 5. This is either a voluntary sale under tlie owner, or a compulsory sale from wreck. In the former case the seamen arc entitled to their wages and passage, and in the latter to their wages, and there is no proof of payment, nor of circumstances out of which payment could be presumed. And if wages were due, even if seamen were bound to pay tlieir own passage, the transfer is good ; for there ia no evidence that there were funds for payment of the wages, and tho capta'n had a right, acting for his owners, to sell these goods in pay- ment of the wages. At all events tho point cannot arise between these parties. If CapL Soignee acted imprudently lie is liable to tho plain- tiff, who placed him in a position of trust, instead of tlie defendant. In Ralston v. Barss, Tliomson's N. S. Rep. 48, the Court did not go so far as to hold tliat a seaman, injured in the service of the owner, was entitled to be cured at the expense of tho ship, but they decided that the medicine and attendance having been paid for, the amount could not be recovered back. This is a similar case. Here is a moral obligation which the plaintiff, through his agent, has fulfilled, and lie ought not to be permitted to revoke his just act. The plaintiff, by taking issue on the sale, admits the agency, and if it raised an immaterial issue the plaintiff should have demurred. Tract. Act, a. 5G and 71. TiiK Court called on James in support of the replication. James in reply contended that the pica being ambiguous in stating that the sale was made by the master and agent, the plaintiff was not bound to demur to it on that ground. Tract. Act, s. 58. If he were, under the new system of pleading the demurrers would be very fVe- ({ucnt. lie was entitled to put a rational construction on it, and bound to do so if possible. The phuntifr had no reasonable ground to apply for an amendment of the plea on the ground of embarrassment, as it sets out a sale by the " master and agent," which means either by the master jointh/ with the agent, or consignee, or by the master being the agent. In either case the (piestion of agency arose. This was a most substantial defence, and tho plaintiff, by taking issue upon it generally, puts in issue ihe whole plea, including the ngencv. The general plea of property 10 376 MELAyCON r. COMEAU. would have been quite suflicicnt to have let in this defence. Had pro- perty in the defendant been pleaded generally, nwst he not have prO'Ved the agency of the party who sold to him ? The question at the trial turned upon the fact of the sale, because the defendant, on whom the builhen of proof rested, offered no evidence of agency, which he was bound to give under this issue. It is true the plea is in some measure ambiguous, but it is the defendant's plea, and he should not be allowed to claim a butter position from his own error, nor to preclude the plain- tiff from putting upon it the only construction which would sustain the defence. Bliss, J. now delivered the opinion of the Court as follows— Tho master of tie vessel is for all purposes, within the scoptj of his authority as such, 'he agent of the owner, and the latter is bound by his contracts which fall within those limits, but not for such as are beyond them. Now, to make the owner liable for such an application of his proper- ty as this, by the master, there must be a legal duty upon the owner to furnish a homeward passoge for his crew, upon the wreck of hi(» vessel in a foreign port. The vessel in this case had bc<^n so damaged that she was condemned and sold. The goods in question were some which had been saved by the master of her out of the wreck, (whether pur- chased in at the sale or otherwise did not appear,) and were put on board the defendant's vessel, which chanced then to be at the same port of St. Thomas. And the defendant's counsel assuming, as they now may after this verdict upon that point, that they were made over for the pa? • sage money of the seamen of the lost vessel, who were brought home as passengers in the defendant's vessel, maintain that the goods, &c., saved from the wreck, were his property, and legally applied for that purpose by the master, whose duty it was, as they say, to send home the seamen. I am unable to find in tlic law any such obligation on the master or ®wner of a vessel in such a case. 1 speak not of what humanity may in some cases require, nor of the moral obligation which that imposes on the owner to take this care of the seamen in a foreign port. The legal liability is the only matter for our consideration ; and if the de- fendant, through the master of his vessel, has made a contract with the master of the plaintiff's vessel, by which the plaintiff himself is not bound, it is like every other agreement made with an agent who turns out to have had no authority to make it, and cannot be upheld against the owner. The situation aud rights of that maritime class of men — > seamen in the merchant service — have been much cared for and their condition improved by modem legislation. Men without any fixed ha- bitation or home — '• whose home is on the deep" — were permitted to be EASTER TERM,' 1855 877 The tlisinisscd and left, as caprice, ©r interest, or accident might be the cause, in any port, liowever distant or foreign, to find their way back, if they desired it, in the bu5t manner they could; their very cmploy- m(!nt and mode of life being such that they were probably supposed t» have no difficulty in finding any where their own proper employment and the ready means of return by means of their own services. But while their rights were overlooked, the interests of their employers, we innst remember, were, on the otiier hand, neglected : and these also re- quired protection against the misconduct of the men. A juster regard has been had to both. But these very acts of legislation to which I al- lude, which, providing for the se.iman who has been left in a foreign port and his return therefrom in ccrtiiin cases, have not thrown that du- ty on the owner or master in ease of the vessel being wrecked ; but only chew that no such duty does exist, but tliat hitherto at least the legisla- ture of Great Britain has not thought it expedient to create it. By the Imperial Stat. 7 and 8 Vict. c. 112, sec. 17, when a ship is sold at a foreign port the crew must be sent home at the expense of the master. Or whenever the service of seamen shall terminate at any place abroad, the master is required to give him a certificate of discharge, and besides his wages, cither find him employment on board some other British ves- sel homeward bound, or furnish the means of sending him back to his port of shipping, or otherwise provide for his passage home. And, if the master neglect it, the consul abroad shall defray the expense, for which tlie owner of the vessel shall be liable. And in all cases of wreck or loss of the ship every surviving seaman shall be entitled to wages up to the time of the loss, whether the ship shall have previously earned freight or not, provided he shall produce a certificate of the master that he had exerted himself to the utmost to save the ship, and cargo and stores. TJie defendant's counsel asserted, iudeed, that by analogy to this, where tlierc had been a salvnge, the crew had a rigid out of their proceeds to have their passage home provided. But that would make the Court not the interpreter of the law, but legislators on the subject, if th^v could thus extend the provisions of the statute respecting wages, to a naim of a widely different character. Besides, on this point the iJritish parliament had already before legislated, for by the 1 W. 4, c. 20, if by shipwreck, capture, or any fause whatever, any seamen arc cast away, or left, or be in distress in foreign ports, the governor, minister, or consul, or if none, two IJritish merchants, are re- quired to subsist them and to sen(1 to express Iiis ultimate liability, if any such there had been. The statute, however, does not merely shew tiiat tlierc is no such duty on the owner, but that it was not one which they thought fit to impose on him, while thoy have made it a public clinrge. The two statutes make this very clear distinction between n voluntary act of the owner by which the crew are left in a foreign port, and inevitable accident through which it is caused ; for the reason, perhaps, that in the latter case the loss was already sufficient without subjecting the owner to an additional charge. But, whatever the reason may be, the legislature 1ms left us, I think, in no doubt on the subject, and I can only add that 1 have met with no case which has led me to imagine for a moment that any such duty was ever cast upon th<) owner of a vessel under such cir- cumstances. There is one other point whicii I should notice. The only fact put in issue by the plea was as to the object and purpose for which the pro- jijerty in question Imd been put on board the defendant's vessel, and that having been found for the defendant, his counsel contends that no other question can now be raised ; but that issue was an immaterial one, ami can conclude or settle nothing. A repleader, then, must of necessity be awarded. It was argued by Mr. Ritchie, however, that everything not j)Ut in issue was admitted ; but if that must be taken to be the case, then the whole case of the plaintiff is admitted, the property in him and the wrongful conversion of the defendant — for if the only fact on which he relies, though found for him, is no legal defence or answer to the action, the plaintiff must of course recover. And as this is not a good defence defectively pleaded, but an entirely defective ground of defence, instead of a repleader the plaintiff would perhaps, strictly speaking, be entitled to a judgment non obstante vere- dicto. But as the case was not so put to the jury, that the plaintiff could recover the verdict to which he was entitled, and there must still be an assessment of damages, it will be better on the whole, I think, to make the rule for a new trial absolute, — though I hope the new trial itself will uow be unnecessary. Kule absolute. I' ■! K ASTER TERM, 1855. ary HALL V. CARTY. April 14. Tlio ik'fendnnt in nti nclion for blunder accused the plaintiff of writing the will of nil illiterate person contrary to his insirnclions, and rending it to him inncciirntely, for the pnijioso of getting "the testators' properly into ilie plftiniiff's iinnds. for his own benefit, whereby the testator was induced to exerutc llic will. Held, that this was a charge of forgery against the pliiiiitill'. The declaration laid the words used as ncpiising the plaintiff of cheating. Ileld to ho suHicient to sustain n verdict lor plaintiil, although the words used amounted in reality to a chiu'gc of forgery. (itiirn. Whether a chnrge of n gross private fraud will sustain nn action for slan- der, without special damage. This was an action for slander tried at Annapolis before ]h.i.ss, J. in October term, 1854. The first four counts of the declaration charged that whereas the plaintiff had been employed by one Joseph Tebo, who was an illiterate person, to prepare his last will and testament, and had drawn the will and procured it to be executed in good faith and in accordance with the testator's intentions, yet the defendant had, in answer to a question how testator had disposed of his property, falsely and maliciously alleged of the plaintiff the following words, " He has left it to his sister and the respectable poor, and I am one of the administrators. Hall had v.! oto a will so that after the death of the sister the property fell into his own hands or the disposal as he pleased, and no one to bring him to an ac- count, and read it altogether different. But after Hall had gone Joseph wanted it read again, and then found that Hall was trying to work it into his own hands after the death of his sister." General inuendo that the defendant thereby meant to impute to the plaintifi' that he had in- tended " falsely, fradulently, and deceitfully, to cheat the said Joseph Tebo in obtaining the execution of the said will or testament by him, in order to enable him, the said David Hall, to obtain and get the proper- ty of the said Joseph Tebo into his, the said David Hall's, own hands, and that the said David Hall did falsely and fradulently cheat the said Joseph Tebo in procuring him to execute the said will and testament as aforesaid." No special damage was laid in the first four counts. The fifth count contained an averment of special damage, but no evidence was given under it. It appeared at the trial that the testator had re- voked the will in (picslion before his decciise, and had executed a new will. Verdict for plaintifl'. Damages £5. James for defendant, in Michaelmas term moved to make absolute a rule to set aside the verdict upon the ground taken at th*^ trial, viz., that none of the words laid are actionable, without special damage bein" laid and proved ; 380 HALL V. CARTY. m ; ill ii ! i i j H'^ 5 ''st, Because tlie charge against the ])hiintiiV wa$i merely a eliarge of an unsuccossiul attempt to commit a fraud, wliicli liail been defeated hy the revocation of the will. 2nd, Because the offence charged, being n ijiero private fraud, is not nn indictable oiTence, even if it had been consummated. 1. It will not be disputed that the boundary between slander and libel bciug fixed, so as to include in the former only those cases in which in- dictable olfences were charged (unless there were proof of special damage), this verdict cannot be sustained unless it shall appear that the fraud charged bo such as might have been made the subject of nn in- dictmcnt. Admitting that the act was an indictable fraud if consum- mated, still in this case the oH'ence charged was that of only attempting to commit the fraud, the defendant having stated at the time that the testator had discerned the fraud and made a new will. And a mere at- tempt to commit fraud is not indictable. In this respect fraud ditfers from forgery which is complete on the commission of the net, without respect to its consequences. 4 M. and S. 214, 220, 1 ; Jiex v. C/innnetl, 2 Str. 8GG. There must in fact have been a prejudice received in or- der to constitute a fraud. 2 Kuss. on Cr., 282 ; 2 Lord Itaym. 1471 ; 2 Str. 747. i 2. The offence charged hoi'> was a more private fraud. It was in fact a very gross lie or cheat, but this class of offences, although often ex- ceedingly heinous, are not indictable. Otherwise if the cheating take place by the use of false weights and measures, or any other tokens shew- ing a general intention to deceive the public. Numerous cases have been decided in which this distinction is clearly recognized. For instance, selling s/iort measure was held not to be in- dictable, althotl«>, and llicru is no mudorn case in which nn indietitient for f'rniid hud been sustained except when the fraud was of n public nature. 1 f some private frauds are indictable, so are all, as there is no derlnnble tlistinction in the morality of one private friiud over another, and no such distinction is rocogni/cd in any case which has ever been decided. Pwvcn forgery is in no degree more culpable than many other frauds, such ns the obtaining goods under false pretences ; y(>t this latter was not held to be indictable until made so by statutes. If the common law provides means for punishing private frauds, why was it necessary to pass these acts? The rule must be taken as laid down by liussell, that no cheats or frauds are punishable at (;ommon law except the " fraudulent obtain- intf the proiierty of another by any deceitful practice or token which af- fects or may affect the public" Huspell and Chitty nro the latest writers of eminence on this subject, and their opinion, corroborated by numerous late cases, is entitled to great weight. In this case there is no pretence of false tokens or any indication of nn intention to deceive the public. It is u mere private fraud. S L. Morse, contra, followed by Ritchie, contended thai, the oflTenco hero .re the crime, which is not specifically named or described, was probably as much regarded a forgery as a cheat. And, as a forgery, I tliink it might well sustain an indictment. Hawkins P. (' c. 70, sec. 2, remarks very sensibly that " the notion of forgery dotii not seeiu so much to consist in the counter- feiting a man's hand or seal, but in the endeavoring to give an appear- ance of truth to a mere deceit and falsity, and either to impose that upon the world as the solemn act of another, which ho is no way privy to, or nt least to make a man's own act appear to have been done at a time when it was not done, and by force of such falsity to give it an opera- tion which in truth and justice it ought not to have." And among tho cases which he mentions in the same section is one which is identical with the one before us. " Also a writing may be said to be forged when neitlier the hand nor seal of any one are forged, as when one being di- rected to draw up a will for a sick person, dotii insert some legacies therein of his own head." See also Uussell 1413. So East P. C. 855, under the head of what is a false making, says, " Making ii fraudulent insertion, alteration, or erasure, in any i,;atcrial part of a true instru- ment, although but in a letter, and even if It be afterwards executed by another person, lie not knowing of the deceit, or the fraudulent applica- tion of a true signature to a false instrument for wiiich it was not in- tended, or vice ve)-sa, are as much forgeries as if the whole instrument had been fabricated, for aay such alteration gives it a new operation." The case referred to by these writers of falsely ins ting legacies in a will is from Noy's Rept. 101. "It was held by Poj am, Flcnn'ncf, ani Teherton, that if he that writes a will omits a thing (hat was appointed to be put in, that is not forgery. But if the devise had been to A for r h . it ? I' !## HALL V. CARTY. life, remainder to B in fee, and he that writes the will omit the estate for life to A, b}- whicli (he fee is presently in B, tliat is forgery. Therd is, however, a late case in which the soundness of this law has been di- rectly impugned, Jteg v. Collins, 2 M. and R., 461, before Eolfe, B. The prisoner was indicted for forgery. He had induced an illiterate man to sign his mark to a deed, under tlic belief, as it had been falsely repre- sented to him, that it was a requisition to a gentleman to become a can- didate for parliament. Tiie learned Judge there stated " that he could not subscribe to the chses cited by Rnssell (that from A'bj seems chiefly alluded to), and he held that this was not forgery, though the prisoner was liable to indictment for a very gross fraud." The prisoner had, it appeared, aflixed a seal to the deed ; and the Judge held that if this was done before the signature, it would not amount to forgery, but if after- wards, it would. Now wliatever weight may be due to this opinion, it is but a m'ii prius decision, — though it must be stated that the same Judge held the same doctrine in a subsequent case, Jieff. v. Chadwick, 2 M. and R., 545. It is, then, the opinion of a single Judge opposed to the law laid down by three, and cited by, I believe, every writer on the criminal law without disapproval or doubt. I may be pardoned, then, I trust, if I ?till adopt the older view of the law, and which has for so very long a period been received as sound. If a person sign a bill or check and give it to another to fill up with a certain sum, and he fills it up fraudulently witli a larger s;am, tliat, by the opinion of all the Judges, is a forgery. Hex v. Blake, 7 C. and P. 652. If the check had been falsely filled up witli the larger sum, and tlie maker had been deceived and led to sign it afterwards in ignorance of this, that, accord- ing to the case before JiolJ'e, B. would not be forgery. In what consists the distinction ? In both cases there is equally the " false making of an instrument" — tlie act of the criminal is the one same act in each case — the intention is the same — the etfect is the same. The only fact which is not the same is that in the one case the guilty alteration takes place immediatrly before, in the other, inanediately after, the instru- ment is signed. Is there, I ask, the less false making in the one instance than the other ? In both a cheque is made by a genuine signature, for a purpose not intended by him who signed it, through the false and fraudulent maciiination of another. Every ingredient to constitute the crime of forgery is found in both cases, but in one thing do not take place quite in the same order, I think that is making rather a nice dis- tinction in favor of the criminal. In this case before Bolfe, B. he seems to be struck with the idea that such an otlcnce cannot be allowed to bo committed with impunity, and, though not a forgery, he says it is a very gross fraud for which he might be indicted. If that be so the verdict here must be sustained. But if the learned Judge is not supported in thi« view of the I;\w, he might, perhaps, himself on reconsideration have EASTER TEKM, 1865- 3d7 some reason to doubt the correctness of his opinion on the point of for* gery, if he found tliat unless it amounted to that, it was no crime at all hy our law, to procure in this surreptitious manner, the execution of a deed or will. With regard to the latter, the crime from its consequen- ces peculiarly requires that the law in some shape should be able to reach it. The detection of all forgeries and such false rcpreentations is generally made by the person imposed upon, but in the case of a will thus fraudulently obtained, tiie knowledge of the very existence of such an instrument may be unknown, till the death of the testator removes at once all suspicion of guilt and the means of disclosing it. I think then that the words are actionable and that the rule for a new trial should be discliarged. Kule (.Mscbarged. HUTCHINSON V. WITHAM. April 16. A (kftindant pleading before the expiration of the period nllowcd h^Inw, will not entitle plaintitf to plate the cu:ise on the trial docket within the period allowed \h» defendant to plead. Sutherland moves to strike a cause off tie trial docket on the ground that it iiad been improperly entered for trial, the writ not having bee« served fourteen days before the day fixed by law for making up the docket. Lenoir, contra, stated that the defendant had appeared and pleaded before the list was made up, nnd although ho was not obliged to appear and plead so soon, yet by so doing he waived the objection and put the plaintiff in a position to bring the cause to trial. DODD, J. The party, having pleaded a few days earlier than he wm under the necessity of doing, ought not to compel him to go to trial without the opportunity which the law gives him of procuring his wit- nesses. Tlie only advantage you gain is that of getting your cause %x issue. DesTJakres, J. The defendant cannot be held to have waived his right in such a case ni less it be shewn tliaf ho has expressly consented to do so. Rule absolute with costs. ii) 368 MURDOCH V. HUGHES. I jiff MURDOCH V. HUGHES. April IG. An ottnchinent against n defendant as an absconding debtor will be set aside on the defendant shewing that having left the province with the intention of returning immedintely, his absence was prolonged l>^' unavoidable delays in concluding his business. Lynch on a former day obtained a rule nisi to set aside the attach- ment against the defendant, as an absconding debtor, upon two grounds. 1st, that the affidavit to hold to bail stated the cause of action as being partly for interest, without shewing how the liability for interest arose ; and 2nd, that the defendant was not in fact absconding, but only tempo- rarily absent when the attachment was issued. It appeared by the defendant's affidavit that he was a trader at Corn- wallis ; that on the 20th December, 1854, he had sailed from Corr.wal- lis with a cargo of potatoes for St. John, N. B., for the purpose of dis- posing of them and purchasing with the proceeds goods for carrying on his trade at Cornwallis. That after trying for six weeks to sell his cargo tiiere, he at last succeeded, and sailed from St. John with a cargo of flour and salt for Cornwallis, but the vessel having put into Digby from stress of weather, wJis there wrccknd and the cargo sold, defendant returning to St. John for a fresh cargo ; and after some further delay there, waiting for a vessel, he at last procured one, and arrived in Corn- wallis with his goods about the second day of March, having been ab- sent about three months. That on leavinj. home he had left his place of business in charge of a clerk to conduct his business, that his clerk being temporarily absent, the sheriff under the attachment broke open the shop and seized and removed the goods. The affidavit expressly denied any intention of absconding, and stated tliat he was solely en- gaged aI)out his necessary business, and had used all possible expedition in getting it completed and returning home. Ritchie now shews cause — The interest here is distinguished in the affidavit from the principal. It is for £126 principal and £l 2s. interest. It is only where the amounts are undistinguished, and it cannot appear how much is for principal and how much for interest, that the objection applies. Cites .3 Dowl. P. C. 106 and 329. And this objection never was a ground for setting aside the proceedings, but only for discharging a defendant out of custody. Upon the second point the affidavits for tiic plaintiff shewed tliat tlie defendant was a person of dissipated habits, that his place of business was shut up, that his circumstances were embarrassed, that he was un- married and had no fixed residence, that he was intemperate while at St. .John, and that it was the general impression in the neighbouriiood of EASTER TERM, 1855. 889 his place of business before and at the time the writ was issued that he had absconded and would not return to Cornwallis. Court. We are satisfied upon this point that the defendant has suf- ficiently accounted for the delay to shew that, whatever his conduct may have been, he was not absconding. Had such a delay occurred in the summer season the case m ould have been difierent, but the delays here might, in the winter season, have taiien place, as defendant has sworo they did, unavoidably, and if so, this process cannot be sustained. Rule absolute. PROVINCE OF NOVA SCOTIA. IN THE VICE ADMIRALTY OF HALIFAX BEFORE The Worshipful ALEXANDER STEWART, Presiding Judgf. i V i'i Ml ■ f ^™^M DALE V. THE SHIP « VELOCITY." June 18, 1855. In shipping articles, the follpwinj; is a snfliclcntly precise description of the toj- ■Ije : " From London to any port in Spnin, thence to Newfoundland and British North America, United States, West Indies, Mediterranean, and Continent of Eu- rope, backwards and forwards, in the prosecution of the Newfoundland trade, and back to the final port of discharge in the United Kingdom, such voyage not to ex* eeed two years." No seaman who is employed for a voyage or engagement which is to terminate in the United Kingdom can sue in a Colonial Vice Admiralty Court for his wages, un- less discharged as directed by the General Merchant Seaman's Act. The Admiralty Court has no jurisdiction in a suit to recover seaman's wages, un- less the sum claimed amount to at least fifty pounds sterling. Murdoch and Lenoir for the Mariner. Ritchie for the Owners.* This was a suit for seaman's wages. It appeared that Charles Dale signed ship's articles at London, G. B. on the 3rd of February 1854, by which he bound hin)self to serve as a mariner at the rate of £3 sterling per month, on board the British ship " Velocity," in a voyage from Lon- don to any port in Spain, thence to Newfoundland and British North America, United States, West Indies, Mediterranean, and Continent of Europe, backwards and forwards, in the prosecution of the Newfound- land trade, and back to the final port of discharge in the United King- dom, such voyage not to exceed two years. These articles were duly executed in the presence of the Shipping Master as required by the Imperial Act, 18 and 14 Vict. [ * For the above phonographic report of the verbal decision of the Worship- ful Judge of the Adn.iralty we are indebted to the kindness of U. Oldright, Esquire, by whose permiision it is copied from the Sun newspaper,— RBr] COURT OF VICK ADMIRALTY. 391 Charles Dale accordingly onterctl into the service of said ship Imme- diately after tlio execution of the articles, and sailed in her from London lo Cadiz in Spain, thence to Harbour Breton in Newfoundland, thence lo Halifax in Nova Scotia, thence to Harbor Hreton aforesaid, thenco to IJurgcs in Newfoundland, thence to Oporto in Portugal, thence to Burgcs aforesaid, thence to Oporto aforesaid, thence to Burges afore- said, thence to Callus in Newfoundland, thence to Oporto aforesaid, 1 hence to Harbor Breton aforesaid, tlioncc to Oporto aforesaid, thence to Harbor Breton aforesaid, thence to Halifax aforesaid, where she ar- rived on or about the lOtli of May last. On the 13th of May Charles Dale left the ship, and this suit was com- menced on the 1st of June following. The amount claimed was £i() sterling, being for 15^ months wages at the rate of £3 sterling per month — less certain advances and payments. King- JcDGK Stevvakt, before delivering judgment, remarked that this being a case of considerable importance, involving questions which seem to have been misapprehended, he should state the grounds of his deci- sion more fully than he otherwise would have done. His Honor then read the summary petition filed on behalf of the mariner, the Promovent in this suit, setting forth in ihafrst place ; the voyage agreed upon, and the voyage actually performed as stated above, and which was alleged to be in deviation of the articles or contract entered into, in violation and breach of all faith, and affording no intimation or certainty whatever as to the port or ports, or as to the countries to which said ship might be destined to go, and that said Charles Dale was discharged from said ship on the 18th May last without payment of wages ; secondly, that said Charles Dale had well and truly performed the duties of a seaman dur- ing the time which he had served on board said vessel and had thereby fairly earned the wages claimed, and that he had been brought before one of the Aldermen of the city of Hiilifax (at the suit of John Strang the master of the ship,) and discharged on account of the deviation of the ship from her intended voyage, and on accoaut of the vagueness of the articles which were adjudged by the Alderman to be therefore void ; thirdly, that the ship had arrived in Haliflix on the 10th of May last, whereby she came within the jurisdiction of this court ; fourthly, a formal declaration of the truth of the foregoing. The schedule annexed to the summary petition shewing £-10 sterling to be due to the promovent was also read by the judge. His Honor then read the reponsive allegation filed on behalf of the owners also setting forth the voyage agreed upon, and the voyage actually performed, and also that Charles Dale had ab- sented himself from the ship without any just cause or occasion and re- fused to complete the voyage according to the terms of his contract.— The judge then delivered judgement as follows :— It may be remarked 12 302 DALl-: i: THE SHIP "VELOCITY." I 41' It that tlie master of the vessel in this case possesses a Certilicate of com- petency pursuant to tlio 2Cth Section of tlie Imperial Act 13 (fc 14 Vict. (1850). I shall, in this decision, refer principally to tliis act, the lead- ing provisions of wliich are re enacted in tlie Imperial Act of last year. It is a fact of great importance in the decision of tliis suit that the sliip- ping articles were signed by the rromoveut in tlie presence ofa pcrsou styled by this Act of 1850 a Shipping Master. The Shipping Master is an oliicer brought into existence by thatacS the 47th section of which requires him to read and explain the articles to the seamen. The witnessing of shipping articles is not now, as form- erly, entrusted to a casual witness, but is required to be performed by an oHicer regularly ajjpointed for that purpose. Extraordinary care is taken in this act for the protection of seamen. Section 40 provides for the encouragement of Sailors' Homes, and gives the IJoard of Trade power to direct shipping articles to be executed at these places. The Promovent in this case voluntarily left the ship after serving 15 months, and after having made 4 voyages in her. The principal ques- tions raised before me are, first, whether the articles are so vague and imcertain in themselves as not to allbrd the seamen a knowledge of the voyage he had to perform. It will be observed that there is no charge of ill usage or cruelty brought against the master. The question is merely a dry point of law. There is nothing to excite sympathies on either side. The vessel is an English ship, and her terminating voyage is to a port in the United Kingdom. The question, then, is, how far I ought to entertain jurisdiction, being bound by this act, as is also every Court in this colony. No provision is made in the articles here for pay- ment of wages before the termination of the voyage. If, then, by the general maritime law, a sailor is not entitled to wages until the termi- nation of the voyage, (and that such is the case is matter of common learning,) then no claim i'or partial payment can be made here. If this were not the rule, it would be easy for a sailor to leave a vessel at any time, prevent her from proceeding on her voyage, and bring her into this Court on a .■quantum men'iit. The articles are in the form required by the 4Gili section of the Act of 1850. They contain a description of the nature and of the length of the voyage in which the ship was to bo employed. This section is substantially re-enacted in the Act of 1854. The 'J4th section is also re-enacted in the late Act. It reads as fol- J^-ws : " No seaman who is engaged for a voyage or engagement which i: to terminate in the Ignited Kingdom, shall be entitled to sue abroad T'" wages in any Court or before any Justice, unless he is discharged in lilt: nanncr required by the " General Merchant Seaman's Act," and with the written consent of the master, or proves such ill-usage on the part of the master, or by his authority, as to warrant reasonable appre- hension of danger to the life of such seaman by rcmainin(j on board '* COURT or VICE ADMIRALTY. 399 icrtte of com- 3&;UVic{. act, the l«;ad- of lust year. ;!iat the ship- c of a pcrsoa } by that ac^, 1 the articled low, asfortn- lerforniod by nary care is provides for ,vd of Trade aces. r serving 15 incipal ques- •0 vague and pledge of the is no charge e question ii aipathies on ating voyage s, how far I is also every lere for pay- icn, by the the termi- of common ere. If this essel afc any ing her into m req'iired scription of was to bo |\.ct of 1851. eads as fol- ment which sue abroad scharged in Act," and age on the able appre- on board J l)nt if any seaman on his return to the United Kingdom proves tliat the master or owner has been guilty of any conduct or default which, by y communication and ajireoment. Other reciprocal duties of the two parties to each other, did not depend on contract, but on the general law, which notilietl and enforced them. The mariner, by his engage- ment to act as a seaman during (hat voyage, being bound to the per- formance of all the duties which the law imposed upon him, and his employer being bound to pay the recorded wages, and to tlnd proper sustenance during that same voyage, and all other usual and necessary accommodations. Tlie?eiand other mutual duties, as I have already observed, are not created by contract, but are obligations created by the general law." Lord Stoivcll then goes on to speak of what he calls the extreme disparity between tiie parties to tiiose contracts. "On the ono i.ide," he says, '■ are gentlemen possessed of wealth, and intent, 1 moan not unfairly, upon augmenting it, conversant in business, and possessing the means ol' calling la the aid of practical and professional knowledge, On the otiier side, is a set of men, generally ignorant and illiterate, no^ torioiisly and pioverbialiy reckless and improvident, ill provided with the means of obtaining useful informalion, and almost ready to sign any instrument that may be proposed to them, and on all accounts reipiiring protection ever against tlienis(;lves. JCvery body nnist see where tlio iid vantage must lie between |iarlies standing upon such uneepnU ground." .; Li another part of the same case, the learneil .Judge thus describeo seamen : " To such men, no such response can be n\ade, as t/ial which is irresistibly nnule in other cases of contract — it is your own contract, you have signed it witli your eyes open, — for they want both the organs of sight ibr reading, and organs of discernment for juilging. To tiiosc who are acciuainleu with this Court, it can be no secret how deeply some of these men arc afl'ected with surprise and concern wlien tliey find tiiat they have ever executed any engagement drawing after it con, -quences so disastrous." Again in the case of the "Juliana," 2 Dodson uOi), Lord Sfnwcll thus describes seamen : " The conunon nmriner is easy and careless, illiterate and unliiinking, ami he has no such resources, in his COURT OF VICE ADMIRALTY. 3»fl own intolligcncc nnd experience, in liabits of business, ns can enable liiin to tiilve accurate" measures of postponed payments with proper esti- inutus of profit ami loss. I observe that many signers of these articles arc niarksmon ; whvtlier tiie present suitor could read or write does not appear ; for tliu duplicate which he executed was lost with the vessel. The probability is, that if he reads at all, non legit ttt clerictis, he does not read with a clerk-lii^c understanding of the import. Upon all prin- ciple, therefore, the agreements of the two contracting parties, so differ- ently qiiuliliod, are not to be scanned by exactly the same measure." — TItis was llie language of the law in 1822. In the case of the " West- moreland, W. Kob. 228, decided in 1841, Dr. Lusliington spoke as fol- lows witli regard to the construction to be put upon tlio words "nature of the voyage," which is re«iuired by Act of parliament to be described in the ship's articles : — " In interpreting the Act of parliament the words ' nature of the voyage' must have such a reasonable construction as to answer the main and leading purpose for which they were framed, namely, to give the mariner a fair intimation of the nature of the service in wliieh he was about to engage himself when he signed the ship's arti- cles. Looking at the tenor of the articles in the present case I am of opinion that the terms which are used give him no intimation whether he is (o winter in the frozen regions of the North, or perform an ea«y service in tiie luxurious climate of Naples and Trieste. I am yet to learn that such comprehensive ambiguity is necessary for the purposes of trade ; and if not necessary, I cannot believe that a just construction of tliis statute will impose any such grievance upon the seaman." Great alterations have reccnily taken place in the law relatin<' to seamen. A very extensive change was made by the Act passed last year. As I have already observed, a government officer is appointed by this Act, as by that of 1850, who is bound to read and explain the siiipping articles to the seamen. As before remarked, the articles, in this case, were executed before the shipping master, and it is presumed lliey were read over and explained by him to the seamen as required by the Act. Tlie law always presumes that an officer does his duty. Siiipping articles, then, being now executed in the presence of an im- jiartial party appointed by government, and explained by him to the seamen, must be governed by the same laws that govern general con- ti-acts. I am surprised tliat it has been considered, for a single moment, that there is any ambiguity in the articles in this case. One part of the contract is tliat the seamen are to be engaged for two years. There is surely no ambiguity about that. They were to be employed for that time, unless they previously arrived at a port of discharge in the United Kingdom. There was, certainly, no hardship in that. They were to be employed in the Newfoundland trade, and were to sail from London lo any port in Spain ; thence to Newfoundland and British North Ame- 396 DALE *. THE SHIP " VKLOCITY." rica, United States, West Indies, Mediterrnnean, Continent of Koropi!, backwards and forwards in tlie prosecution of tlint trade. Almost (liu sole product of Newfoundland, a3 we nil know, is fisli, which in sont to particular countries of Europe, where it forms n principnl article (vf food, during particular portions of the year. The vessel goes to Spain for salt. That is, surely, in the way of the trade. She si\ils to different ports in Newfoundland for fish. She goes to Oporto for wine, comes here for provisions, and sails from here to the West Indies with fish. What is there, in this contract, which makes it ambiguous ? It has been fiaid that, under this contract, the vessel might go to Norway or Sweden. I lay, no, as these places are not in the track of the Newfoundland trade. The party promovcnt himself, Charles Dale, never thongiit there was any ambiguity in these articles when he made Ihe four voyages in the vessel, backwards and forwards. It is not until he arrived here in May last, that light breaks in upon him. lie tlien discovers, for the first time, that the articles are ambiguous. lie then says: "I cannot un- derstand them, I will leave the ship." It is quite proper to mention in a mariner's contract tlie particular description of trade in which the vessel is to be employed. Tlie nature of that trade then becomfes a question of fact to be examined and inves- tigated in the same manner as are all other questions of fact. This is nsort of investigation with which the Courts of Admiralty are familiar. It is said that this is a very extensive contract, that Soutii America is included in it, and all the rest of the world. I cannot accede to this position. Sitting here as a Judge of an Imperial Court, I must say that the lo- cal authorities should deal with these cases with a little more caution than they have been in the habit of using. I am asked if sitting as a Judge of this Court, a Court whose juris- diction extends over the whole world, I will refuse to entertain juris- diction in this case, and I am told that if I do refuse, the seaman loses Lis lien or interest in the ship, as he cannot attach the vessel witliout the aid of this Court. My answer is that if the British parliament pro- tects the seamen so much as it in fact does by this Act of 18.50, he should be bound by all the clauses of the Act, and go to England to have his case tried. As to his interest in the ship, the sliip may bo fol- lowed, even if sold in a foreign country. Every law passed in a colony contrary to tlic provisions of an Impe- rial Act is ipso facto void. We have, however, no provincial law on the subject of seamen's wages, except that which is applicable only to vessels registered in the province. If a seaman, in a case like the pre- sent, sues for his wages before a Justice, the Justice is bound to say that he cannot entertain jurisdiction. If he does assume jurisdiction in •uch a case, he will render himself pecuniarily responsible. In the case COUUT OF VICE ADMIRALTY. 397 of the " Golubcliick," 1 W. Rob. HO, Dr. Lushinglon, altiiough he said that he woiihl under proper circumstances assume jurisdiction, (the par- ties ill that case being foreigners,) yet before allowing the case to pro- ceed directed the registrar to enquire of the Russian Consul whether he had any objections to tlie suit being proceeded in. This was a caso rtf wages earned by foreign sailors on board a foreign ship. What right lias a Court hero to interfere witii an English ship that is to be paid off in England ? The right of the local authorities here to interfere in cases relating to seamen is given by the Corporation Act passed in 1851. Tliis section reads as follows : — "The Mayor and any one of the Alder- men holding the Police Court, shall have power, on the sworn complaint of the master, to arrest any seaman of a British, Provincial, or Foreign vessel, who having signed regular articles and not being duly discharg- ed therefrom, shall absent himself from his vessel ; and, after hearing both parties, if he find the complaint well founded and just, to compel the seamen to return to duty ; if requisite also to send him to jail until tlic vessel is ready for sea, and give the aid of the police constables in carrying him on board his vessel." Similar powers arc conferred upon the local authorities by the 72nd section of the Imperial Act 13 and 14 Vict. (1850.) The section of the Corporation Act which I have just read confers the power to deal with seamen, on the Mayor and one of the Aldermen. The Alderman applied to in this case appears to have exercised alone the powers conferred by the Act on the Mayor and an Alderman. Charles Dale, the promovent, was brought before the Al- derman on a charge of desertion at the suit of John Strang, the master of the ship, and discharged because the ship had deviated from the voy- age agreed upon, and because the articles were vague and ambiguous. What had the Alderman to do with the construction of the articles ? What right had he to prononnec them vague and ambiguous and there- fore void ? I should recommend this course to be abstained from in fu- ture. By sec. 189 of Imp. Act 17 and 18 Vic. (1854) the jurisdiction of this Court in cases of seamen's wages is limited to cases in which the sum claimed amounts to or exceeds £50 sterling. The amount claimed here is less than that sum. Sections 190 and 246 of this Act re-enact with some additions sections 94 and 72 of the Act of 1850. This also appears to be a bar to the promovent's action. On the whole, after a careful consideration of this case in all its bear- ings, I feel myself bound to decree that the claim be dismissed. Judgment for Impugnant. TROVINCE OF NOVA SCOTIA. IN CHANCERV. BEFOUE THE HONORABLE ALEXANDER STEWART, MASTER OF THE ROLLS. CALDWELL et. al Executors of Ezekiel Kinsman, de- ceased V. KINSMAN d. al The recording of a certificate of jucjijmcnt gives the jiidKincnt crfdiior such alien upon the land of the debtor as to unnblo him, without having issued nn execution, to proceed in Chancery to set aside a prior fraudulent conveyance of the land. The Ent;lish rule, that conversations with and adniissions by dcfendtnts cannot l>c given in evidence, without haviug been set out in the bill of complaint, is not appli- cable to the practice of the Court of C^hancery in thin province. Where a party obtains an estate in fraui^ the Court of Chancery will not only set aside tho conveyance, but direct a sale of the property to satisfy the claim of partiuti equitably interested. Judgment delivered by the Master of the Rolls 4th May, 1847. This caufe was argued before me on the 19th, 20th, and 2Cth Janua- ry, and 2n(l February last, by the Attorney General (Johnston) and Mr. John W. Ritchie, for the complainants — and 3Tr. John Whidden. ?nd Mr. Joseph Whidden, for the defendants. At the argument I aw^g" ^ted an issue, but it was declined by both parties. The original defendants were Daniel Kinsman, Natha».U' Vinsman, and Ezekiel Kinsman, but Daniel Kinsman having died after tho suit was instituted, I directed the coinplaniants to file a supplemental bill, !o afford his representatives an opportunity of becoming parlies to the cause if they were so advised. I also ordered tho complainants' bill to be amended, and Mr. Cogswell thereby made a defendant. These orders of the Court having been obeyed, the defendants now are — the Hon. Henry H. Cogswell, Nathaniel Kinsman, and Kzehiel Kinsman / and the complainants — John M. Caldwell and Caleb li. Bill, executors of Esekiel Kinsman, deceased. The complainants' bill states that, the deceased Daniel Kinsman CALDWELL i-. KINSMAN. im 7. Janii.a- and Mr. ind Mr. .ted an >'nsman, till- suit bill, to to tiie. bill to owed tlicir testator Exthiel KinsniaA, at the time of hii dcntii, a consi- derablo sum of money ; that in order to obtain security for the payment thereof, they, on the 28rd January, 1843, applied to the said Daniel Kinsman and Nathaniel Kinsman, and requested them to join in a note therefor to tiie complainants ; that finding Nathaniel Kinsman unwilling to comply with their desire, they threatened to sue Daniel Kinsman ; that thereupon Nathaniel Kinstnan requested a delay of a week, within tvhicli time he promised to procure money to discharge the debt ; that it was accordingly agreed that the parties should meet again, for the purpose of finally arranging the business. That, next day, Nathaniel Kinsman endeavored to obtain a loan there- for ; and failing to eti'cct this, on the same day, and before he had seen his father, he caused a deed to be prepared to himself of one of Jiis fa- ther's farms ; that the defendant ^zekiel Kinsman also caused a deed from his father to himself, to bo prepared of another, (the said Daniel Kinnman being then the owner of two;) r.aJ that these deeds were ex- ecuted by the said Daniel Kinsman on the 24th January, 1843, under a verbal agreement then entered into, that Nathaniel Kinsman and Eze- kiel Kinnman should pay the complainants the said debt by sale or mortgage of the said farm ; and also a debt due to John M. Caldwell, individually ; and that if not upon this trust, they were executed with the intent to defraud the complainants ; that although the sum of £500 is stated as the consideration in the conveyance to Natha^iiel, and £350 in that to Kzckiel, no money passed at the time of their execution; tho said sums being merely nominal. That on the Cth February, 1843, the complainants sued ont of tho Supreme Conrt in King's county, a capias against the said Daniel Kins- man, whereupon he immediately transferred to the said ^a/Aa?«'e/ A7ns- man and Ezekiel Kinsman, or one of them, the whole of his personal property, for the purpose of defrauding tho complainants ; that the said Daniel Kinsman continued to occupy the farm conveyed to Nathaniel Kinsman, and to use the personal property as he had before done. That previously to suing for the said capias, the complainants (being ignorant of the execution of these conveyances) met the said Daniel Kinsman and Nathaniel Kinsman, but parted as before — although at this last meeting the said Daniel Kinsman implored the said Nathaniel Kinsman with tears to join in securing the debt to the complainants, which he de- clined to do, unless they would deduct £50, which the complainants re- fused to do ; that the said Nathaniel Kinsman and Ezekiel Kinsman be- came bails for the said Daniel Kinsman, and subsequently rendered him to jail in discharge thereof; but that the complainants never issued execution upon their judgment ; which was signed in May term, 1843, in the Supreme Court of the said county, for the sum of £127 13s. debt, and £6 17s. costs ; and that they caused a certificate of this judgment 13 iOO. IJT CHAXCERT. to be recorded on the 7th June, 1843, ?n tbe Registry of Deeds for that county, wherein the said farms are situate. Tluit the said J. M. Cald-' well, in tlic same term, recovered a judgment against Daniel Kinsmartf for his individual debt, upon whicli ho was committed to jail ; that soon after, Daniel Kinsman, in conjunction with Nathaniel Kinsman and Kzehiel Kinsman, endeavored to obtain his discharge, under the acts for the relief of insolvent debtors — first, by applying to the commissioners for tlie said county — then to the Supreme Court in Kentville — and lastly, to all the Judges in Halifax, but that such relief was withheld from him because of a fraudulent confederacy between the said father and sons to defraud the complainants. The bill, as amended, sets ibrth that, befbrt these transactions — viz., on the 11th February and 1st May, 1330, Daniel Kinsman had, by two mortgages, one for £300 ami ths- other for £50, conveyed the said farms to the said If. H, Cogswell', and that the said sums were, by .lie terms thereof, payable in one year after the several dates thereof. The prayer is as follows : — " That an accountr be taken of the amount due on the said judgment to the complainp.nt» for principal, and interest and costs ; and that it may be decreed, that the said farms and real estate are and shall be held, under the said con- veyances, by the said Nathaniel Kinsman and Ezekin Kintman, in trust for the payment of the deb'/ due the said complainants as such executors ns aforesaid; and that the s&ii. Nathaniel Kinsiv tt. and Ezekiel Kins- man may be ordered to pay the said debt wii.a interest and costs ac- crued thereon ; and ia default thereof,, that the said farms be sold, un*' der the order of this Honoi-able Court, for the payment thereof ; or otherwise, if the said trust shall not be established to the satisfaction of tins Honorable Court, that the said farms and real estate shall be de- creed to be the property of the said Daniel Ki7isman, liable to the said debt, interest, and costs — and that the same may be sold for the pay- ment thereof ; and that,, in either case, out of the proceeds of the sale of the lauds and premises conveyed by the sail Daniel Kinsman to the said Kzcliel Kinsntan, by the mortgage, dated 11th February, 1830v the sum of £300, and all interest thereon, may be paid to the Suid If. II. Cogsioell ; and that out of the proceeds of the sale of the said !and conveyed to the said Nathaniel Kinsman, the sum of £50, due on the mpvtgngc, dated the 1st May, 1830, and all interest due thereon, may be paid to the said //. //. Cogswell, and that )je may be decreed to ihj- ceive the same, and upon receipt thereof to make releases of the said^ lands as to this Honorable Court shall seem proper ; and that the com- plainants may have sijf li further relief as to this Honorable Court may seem right and agreeable to equit}i and good conscience." Daniel Kins- mixn and Nathaniel Kinsman answered jointly ; Ezekiel Kinsman has ariswered alone. They al! "any the trust and fraud stated in the bill. E::eJiicl Kinsman allcscs, that long before he received his deed^ he- CALDWKLL v. KINSMAN, 101 Imd purchased the farm couveyeil to liim from lii.s father, for £350, by n, written ngreement ; that having, in pursuance thereof, paid £107 to Daniel Kinsman, and fearing, (if steps were taken against Daniel Kins- man,) if he, Ezekiel Kinsmin, did not complete his title he might lose what he had so paid ; on the 21th January, 1843, he obtained his deed ; that on making the said agreement, he had given jTomissory notes for the purchase money to his father ; and that on rccc' ving his deed it was Arranged that Nathaniel Kinsman sJiould pay the amount due to Mr. Cogswell on the mortgage for £300, and therefore it was agreed amongst them that Daniel Kinsman should indorse the said notes to Nathaniel Kinsman ; and that this arrangement was made at the time, in conso> quencc of their all being then under the impression that the said mort- gage was a charge upon the farm then conveyed io Nathaniel Kinsman^ ns -well as a charge upon that then conveyed to himself, Ezehiel Kins- man ; that some time after this it was discovered that the said mortgage included only the farm conveyed to himself, the said Ezekiel Kinsman ; that thereupon the said notes were given up to hi.n as " in justice and equity they ought to have been, inasmuch as the amount he had already paid, and the sum due on the said mortgage, were more than the amount of his purchase money, viz., £350, being the consideration inserted in his deed." Daniel Kinsman and Nathaniel Kinsman allege that, from the time t>ic latter had reached the age of twenty -one years he had lived and la- bored with his fatlier, under an agreemciit to receive, as wages there- after, £30 annually, together with food and clothing ; that upon tl>o complainants' application for ser jrity for their debt, to save himself, ho ©"btained from his father, on the said 24th January, 1843, a deed of the farm and land described therein ; that his wages (lie having then thus lived with his father, as a hired servant, fourteen years, under the said ngrecincnt) amounted to £420, of which ho Iiad received no part ; and that this sum, together with £28 8s. paid by him to Dr. Primrose for his father, and the sum iiue to J/r. Coyswell on ihc mortgage for £50, (being, with interest, £52.) in the whole amounted to rather more than £500 ; tiiat these tiirec sums were, in fact, the consideration of the said deed ; and that the whole transaction was fair and honest. This is tho substance of these answers, but I shall refer »> them more particularly as I proceed. Tho Hon. If. If. CoysweW states he Jias no objection, tlia( the prayer of the complainants shall be granted, provided the property described in both mortgages be held liable for the whole sum due to him ; und lii* prays that it may be referred to a master, to take an acco'.int of, and report the sum due for principal and intere are riot specially set ^ut and detailed in the bill ; and in Austin v. tnambers, b Clarke %nd Finlay's Heport 38, Lord Cotlcnhain lays down the rule to this extent, " that if the bill mean ^ iv ''fion any conversitions, confessions, or admissions of the defend •ill. citjc' ''■ritten or oral, as proof cf any facts charged in the bill, as I'ov fv.' Ji.j .? A fraud, the bill must expressly charge what such admissions, c nfessions, or conversations are, and to whom made, otherwise no evidence thereof will be admitted nt the bearing." And 404 IN CIIANCKRY. I<1> tlic same rule k laid down in the House of Lords in Atioood and Small, by Lord lirougham, in language equally explicit. The main ground on which their lordships uphold this rule, indeed in these cases the only ground, is that otiiervvise the defendant would be taken by surprise, and deprived of an opportunity of explaining, or con- tradicting, hy evidence, such admissions, confessions, or conversations. This is the ground on which Judge Story, (after examining these and similar cases,) considers the rule to be established in England ; although jvs has been urged by Mr, Whidden, without it, or some modification of the practice in respect to the answer of a defendant, his privilege of pro- tecting himself by \m answer against the evidence of u single witness will aUo be in some cases diminished Judge Story and other American Jui' ^. ' '^ar to regard it as a new rule, BMd I do not find that until a comp;.. ly recent period it was laid down in Cliaiicery as broadly as it now ^^revails in that Court, al- tliough ■*. was acted upon in the Exchequer thirty years ago. In the last edition of his book on equity pleading, the eminent Jurist I have just named remarks thereon as follows : " whether the like rule will be allowed to prevail in the American Courts, (and by the Constir tution of the United StatQS the Supreme Court must conform to the practice of the High Court of Chancery in England, unless local cir- cumstances render in the case immediately before the Court inapplica- ble,) " nay be deemed a matter open to much doubt : for the like reasot^, does not prevail, either to justify or require it ; as all interrogatories and cross interrogatories put, or intended to be put, to the witnesses, are re- quired to be made known to the other party, before any of them are examined, or at the time of examination, and thus ne'thcr party can be under any surprise if tlie interrogatories jioint to any conversations, confessions, or admissions made to any witness." But if this view of its inapplicability to the American Courts be well founded, how much more forcibly it applies to this Court. Here, tl>e greater part of the evidence is given publicly, in the presence of coun- sel; they examine the witnesses, (which are from time to time adduced, at the discretion of the litigants,) until publication takes place. And publication which in England discloses to the suitors what has been sworn to, in this province rarely gives them a«^ information ; for where evidence is taken in the country, under a commission, tlie interrogato- ries and cros« interrogatories being served upon tliem, indicate tiie tes- timony which the witnesses will tobably give. In England they arc not served upon the parties, but kept closely secret, until publication passes, and so carefully is this attended to, that until lately the direct interrogatories w>ere administered by one examiner, and the cross inter- rogatories by another. In a great majority of instances the witnesses are not cross examined at all : Mr. Bell, an eminent Chancery barria- CALDWELL v. KINSMAN. 40£ ter, informed the parlmmentary commissioners, that in (he eoOrse of a very long and extensive practice he liad advised cross interrogatories in two or three cases only. It appears to me that to introduce the rule here under our practice, which is authorized by the Prov. Stat. 3 Wm. 4 cap. 52, would subject Ihc complaniant to a very serious disadvantage : for " while the defend- ant would have the full benefit of it, the complainrtnt would have none, since his own admissions and conversations might bo used as rebutting evidence against his claims asserted in the bill, although they were not specifically referred to in the answer." Speaking of another rule of practice in the cases of Walworth and Holt, 4 Myiue and Cray Gld, Lord Cottenham says, " I think it is the duty of this Court to adapt its prac- lice and course of proceedings to the existing state of society, and not by too strict an adherence to forms and rules established under differ- ent circumstances to 'lecline to administer justice." And Sir Dudley Hyder in Omichund v. Barker, 1 Alk. 39, says — " general rules of evi- dence may be considered as affordfjd by the decisions of certain cases, and entitled to govern all cases similar in ch'cumstances ; but if othet circumstances belong to the case, the principle of the ride mitst he cott' suited ; and if the principle of the rule do not reach such additional cir- cumstances, and if a failure of justice may be apprehended from its application, then the rule ought not to be applied " Now in this case Mr. Whidden himself cross-examined the witness, ijrf lihuttim as to the conversations to which he now excepts. That thefe was time to ad- dress witnesses to discredit or controvert the evidence of that witness if it could be done, is plain, for his testimony was taken on the 10th No- vember, 1845, and publication did not pass until the 5th December, 1846. Besides, the evidence objected to, is a portion of the account, which the subscribing witness to the deeds, (charged to have been fraudulently executed,) gives, of what passed at their execution. le was incumbent on the complainant to examine this witness ; and when called he was bound to tell all that occurred thereat. This is a rule of universal practice, and therefore the defendants must have expected ' that this witness would narrate every thing that was said or done on that occasion. It was open \o the defendants to ask that the bill and answers should be so amended, as that they might protect themselves by their answers. No such motion could be made in England, for ob-f vious reasons, nor do I pronounce definitely that it would have prevail-' cd here ; it is sufiicicnt at present to observe, that no such application was made. I refuse then to adopt this English rule, because it is inconsistent with the peculiar mode of ti.kin- testimony, on the broad principle that rules of evidence and practice must vary with the varying exigencies of the lubject to which they arc to be applied, and cessante radone ecsmt lex. 406 IN CHANCERY. In the testimony read at the bearing are conversations, proved by a witness adduced by the defendants of Daniel Kinsman, with him pre' Viously to the execution of the conveyances, the tendency of which con- versations is to show, that Daniel Kinsman had held liimself liable to pay NaCaniel Kinsman for his labor, as claimed by him ; and these are excepted to by Mr, liitchie for the complainants, on the ground that they are hearsay evidence. The defendants have also proved other conversations of Daniel Kins- man with another of their witnesses, after such execution, the general purpoi't of which is, to shew that he executed the conveyances in good faith, and upon the consideration alleged by Naihaniel Kinsman, To the reception of these, also, Mr. liitchie has objected on the same ground. And tiie complainants have read evidence of conversations oi Daniel Kinsman vi'iih one of the complainants' witnesses after such convey- ances were made, the purport of which is that he executed those upon the trust charged in the bill. To the reception of these the counsel for the defendants except, on the principle that Daniel Kinsman had then an interest in transferring his liability to the complainants, from himself to his sons. All this evidence was road at the hearing, subject to the Opinion of the Court as toi its validity. Now the alleged fraud of the defendants is the subject of our investigation, and where this is the case, this Cturt is not bound by the strict rules of evidence which prevail at law. Thus Lord Eldon, in the Marquis of Townshend v. Staugroom, 1 Vez. 332, says : " Fraud is a distinct case, but all the doctrine of the Court as to cases of unconscionable agr ements, hard agreements, agreements entered into by mistake or surprise, which therefore this Court will not execute, must be struck out, if it be true that, because parol evidence should not be admitted, at law, therefore it shall not be admitted in equity." In the case of Mann v. Ward, 2 Alk. 228, the same doctrine is laid down by Lord Hardwicke. In that case, thfe evidence of a person who had joined in granting away her estate, was admitted, though it invalidated her right to the estate. His lordship says — " To be sure, by the strict rules of law such evidence would not be admitted ; for where a person has granted and conveyed, be the right real or pretended, the very words grant and convey imply a warranty and a covenant for quiet enjoyment, on the grantor's part, and therefore he cannot be examined as a witness to in- validate the title granted by the deed. I would not have it understood, as if I bad laid down that rules of evidence at law and in equity differ in general, but only in particular cases. Where fraud is charged by a bill, or in cases of trusts, this Court does not conline itself within such strict rules as they do at law ; but for the sake of justice and equity will enter into the merits of the case, in order to come at fraud, or to know the true and real intention of a trust, or use declared under deeds. CALDWELL V. KINSMAN. •107 If it were not so, it would very much abridge tlie power ami jurisdiction of this Court, (wliicli Is chiefly conversimt in cases of fraud and trusts.) if I do not admit sucli evidence," and his lordsliip therefore over-ruled the objection. It is evident that the testimony of tiie grantor in the case last cited, would not have been received at law. But independent- ly of these different rules, fraud is a fact to be ascertained or disproved by concomitant facts and circumstances ; and the intent v^ith which par- ties do acts apparently honest, is frequently the main subject of enqui- ry. Their declarations and conversations may discover or negative a fraudulent intc nt. Tlius, in the case cited by Mr. WIddden, Jr., from 5 Vez. 701, fraud was charged against Conolly, the complainant, in ob« taining a deed from Lady Conolhj. Her state of mind, therefore, when she exec .ted it, being indicated by her declarations before she had done so, were received by Lord KIdon ; but those made by her after it was sought to set it asidc; v/cve rejected, for these last rtiight have been made with the view of invalidating it. Then the declnirations of Daniel Kinsman, long before he executed the conveyances to his sons, are ad- missible, because they tend to negative the fraud charged ; for it is scarcely credible tliat he could have engaged in these conversations for the p'n'pose of vindicating conveyances which, as it appears from the other evidence in the cause could not then have been contemplated by any of the parties. Moreover, the declarations were against his own interest, as tliey furnished evidence whereby he rendered Iiimself pe- cuniarily liable to his son Nathaniel Kinsman. But those declarations which Daniel Kinsman made after the validi- ty of these conveyances was impugned, cannot be evidence for any of the defendants. Tiie case in T) Vez. is an express authority for reject- ing them ; whereas tliose tendered by the complainants, although made by Daniel Kinsman after ho had executed them, arc clearly admissible in this cause, for tiicy bound tiie deceased defendant one of the parties cluirged with fraud. Whether they will attect either of the other de- fendants depends upon the extent to which the other testimony connects them with tlieir fai' r in these transactions. I have found do antliority for tiie defendants' assertion that tlie de- nial of several defendants is more potential against the testimony of a witness than that of one defendant. I therefore pass it witliout further remark ; and sections 40 and 41 of Story's work on Equity Pleading, shew tliat tlie objection of the defendants' counsel to tlic sufficiency of the prayer for relief in tlie complainants' bill is without foundation. Having tlius disposed of the principal questions of a technical cliarac- lor which iiave becu made in this case, I [troceed to the law upon which ilie coinplaiuaiits rely. That conveyances made witli intent to defraud creditors are fraudu- ]i»t, l>oth at common law and by statute ; the fraudulonl grantees held 11 I ■iX)S IX CITANCERr. (trustees for such creditors, miil timt tliis Court will, in favor of Jmlj;- mcnt creditors, set such conveyances aside, lias always been the law of diis Court. Thus Lord Mansjield, in Cadogan v. Kennetl, Cowpcr's Reports 132, (speaking of the statute;^ 13 Eliz. cap. 5, and 27 Eliz. cap. 4, and of the relief which they alForded to creditors,) says, " tliat the common law eould have aft'oi'ded tlicni relief, equally extensive, if these statutes had not been made ;" and referring to transactions by which fraudulent con- Tcyances could be avoided, his lordship lays it down, " that if a man purchase a house or goods of another, and give a full price for them, if he make the purchase with a view to defeat a creditor, the purchase is fraudulent ; and therefore, notwithstanding a valuable consideration, void." The purpose is iniquitous — it is assisting one man to cheat aliother, which the law will never allow. Story amply confirms this doctrine. He says, " cases have repeatedly been decided in which persons have given a full and fair price for goods, and the possession has ueen actually changed, yet the transaction has been held fraudulent alid avoided." In Bennett v. Musgrove, 2 Vez. 52, Lord Hardwickc said, " this is a plain case to give relief, which is to be let into the bene- fit of that, to which such n creditor (i, e. a judgment creditor) is en- titled, though a creditor at large is not. But where a judgment is ob- tained aflfecting lands, from the time and execution, he is entitled because that affects the reality of the land ; and this whether it is one kind of fraudulent conveyance or another. The creditor, standing in the place of the debtor, may come into this Court to be relieved against that con- veyance, and to have the same benefit of relief." So Lord Eldon, in Chumlcy v. Lord Duncary, said in the House of Lords, " that it was ev- ery days' practice for a creditor to have a conveyance of his debtor's es- tate declared fraudulent." Again, in Barneshy v. Pgwvll, 1 Vez. 285, Lord Hardwlcke says, " so in 'Iliyn ^ Thyu, and in cases where the j)arty has not been destitute of a remedy," (L e. in another Court) " this Court has declared deeds to be void for fraud, and have at t);o same time considered tlie persons in whom the legal estate is vested, as trus- tees, to prevent injustice to those in whose favor the (ieeds wei'o set aside." " There are several cases wherein, by reason r f the ill practice of the defendants, as in the case of spoliation, a Court of Equity will take from them benefits which they would otherwise be entitled to, as to decree them trustees, and to direct conveyances to set matters right. This Court considers the person obtaining the estate by fraud, even by line, as a trustee, and decrees him to reconvey on the general ground, of layiiig hold of the ill conscience of the party to make him do what is ne- cessary ic iei,tore matters as before." The [. iciple is not new, says Judge Story, " that a party who ob- ":»iu6 au c::tutti iu fraud, of the rights of another, shall be held the trus- CALDWELL v. IvIXSMAX. 409 icpofliim wlioni lio Im^ (Icfrniulcd. It is against conscience, tlint onf jUTson slioHld hold a benefit derivetl tliroiigh tiie fmiid of nnotlier. It is familinr tliat ii person procuring a perfect legal title, of property with notice of u [trior (ille, derived under the same party, and not yet perfect- ed, shall be held a trustee for the prior purchaser, and compelled to sui*- render his own title. That is the common case, of a second purchaser having knowledge of a prior unrecorded deed. The doctrine is carried yet farther, so that a party enabling another to commit a fraud, is made answerable for the contJeq'iences, either personally, or in his estate, as the case requires. A Court of Equity justly considers fraudulent gran- tecs as holding the property conveyed to them in trustfor the judgment creditors who have been defrauded by the conveyances." Whether the circumstances of the case before the Court bring it within the operation of these principles, is our next subject of enquiry. The facts in proof, as I collect iliem from the evidence and proceeding's are as follow : Daniel Kinsman was the brother of the testator Ezekiel Kinsman^ and the father of the defendants, Nathaniel Kinsman and Mzehlel Kins- men. In the year 1821) he was the owner of two farms, and a moiety of a wilderness lot, which was his whole real estate. In this year he resided on one of these farms, but afterwards removed to the other ; •mid he resided on and cultivated the latter before and in the year 1843. lie morlgaged the one on which he resided in 1829, on the 11th Fe- bruary, 1830, for £300, to the defendant, CegsweU; and on the 1st May following, (having in the interim become the mortgagee's debtor in a further sum of £"»0,) by another mortgage he charged both farms with the whole £oi)0 and interest. The moiety of the wilderness lot was not included in either of these mortgages. The mortgagee, by the terms thereof, was at the time of tiling the original bill, bound to receive pay- ment of the sums due thereon. The complainants sue for a debt due inliis life time to their testator, by his brother the defendant Daniel Kinsman, who had regularly paid the interest thereon while his said brother was alive. Daniel Kinsman on the 8th December, 1837, sold the farm first mortgaged, to the defendant Ezekiel Kinsman, and executed in the pre- sence of one of the complainants, (,/. M. Culdtoell, by whom it was pre- pared,) an instrument, of which follows a copy : " This may certify that I have sold unto Ezekiel Kinsman, Jr., ray 3on, all the farm that I own and formerly occupied, adjoining my bro- ther KzeUcl Kinsman, in Hill Town, so called, for which Ezekiel Kins- man, Jr„ has signed his obligations, bearing even date with these pre- sents, in |)aymcnt of £3."»0, witli interest annually on the remaining prin- cipal, until the whole is paid ; and after the fulfilment of said agrcc- ^nont, and as soon as the last payment is made, T promise for myself 410 IN CIIANCKRY. my lieira, executors, and mlministrntors, in tlic \wnn] sum of X70(i, to give unto liim, tlie said Ezekicl Kinsman, Jr., his licir.«, cxccnlor.*, nml ftdministrators, ti good nndsullicient Warranty Deed of the above-named property. Witness my liand and seal at Cornwallis, this eighth day of Decem- ber, 1807. "Daniki, Kinsman, (L. S.) "Witness niy hand and seal, " Witness present — " John M. Caldavem-." Nathaniel Kinsman reached his 21st year in 1820, and remained with his father, assisting him in cultivating the farms, going to market, making sales of tlic stock, and other produce. lie appears to have been sober, saving and industrious, " taking upon liimself the bulk of the work," and to his exertions the farms were much indebted, and by them their produce was increased. Tiic father (although not able to do very hard work, such as mowing, and getting wood out of the woods, &c., and becoming less able as he advanced in years) was a healthy man, and continued to assist in farm work until he was committed to prison, as hereinafter mentionqd. Nutlianiel Kinsman married his cousin, whp liad previously been a servant in the house, and after the marriage con- tinued to do the work thereof. She had (prior to 1813) two children, and during her conflnements had medical attendance. On Tuesday the 23d January, 1843, the complainant required JJanicl Kinsman and Nathaniel Kinsman to join in securing their debt, but this Nathaniel Kinsman declined to do so, and after some convcr,«ation the parties separated without eirecting any arrangement, agreeing to meet again to further consider the matter in a week. The next day Nathaniel Kinsman, without informing J)aniel Kins- man of his intention, caused a deed of the farm on which they then re- sided (also including the moiety of the wilderness lot,) to be i)repared, inserting £500 as the consideration ; and on the tame day Ezekiel Kins- man also caused a deed of the farm he had agreed to purchase to be prepared, in which the consideration is stated to be i!3.J0, " paid by Ezekiel Kinsman to Daniel Kinsman." They were both executed by Daniel Kinsman on the 24th January, 1843 (on which day they were dated) in the presence of //. /. Cof/stvell, Nathaniel Kinsman and Kzekiel Kinsman only. Voyswcll witnessed both ; Kzekicl Kinsman subscribing (as a witness) iiic conveyance to Nathan- iel Kinsman, and Nathaniel Kinsman subscribing (as a witness) the deed to Ezekiel Kinsman. Nathaniel Kinsman and Ezekiel Kinsman retained their deeds without proving them, until t!ie 3Ist January 1843, when they caused them to be registered, these defendants severally proving the respective deeds. W:\ CALDWELL V. KINSMAN. m I i.ansciibc from the witness (.'oysweU's deposition, his account of wliat passed in relation to tiieir preparation and execution, viz.: "In tiie year 18 1'!, in tiie lirft |>:irt o[' w'mWv, Nuthauid Kinsman ov Ezekiel A'iiisi/iitn, spoke to nie to write a deed, and asked nie to meet him n( iiiij I'ather'ti tliat same day. 1 attended, and found the father nt hiRown house, togetiier witli Attt/zunii'l Kiiismuit, Daniel Kinsman said he was jroing to give deeds of Ids property to his two sons, one deed woi iilreaily written by Jfr. Moore, to Xal/iuniel Kinsman, and he wanted liie to write the oilier to Ezckiel Kinsman, Xat/ianiel Kinsman and t/ie father both said, thai Mr. John C'aldweU had advised (he father to give deeds to the two sons to enable them to becmne security to him, Caldwell. I went from the old man's thai same evening, and Nathaniel Kinsman came in. 1 then wiote ii deed from Daniel Kinsman to Ezekiel Kins- man, which is the deed now produced, marked A. Whilst Ihern, that evening, 1 can't recollect any conversation that passed relative to the subject. The deed was not executed that night. 1 had not seen the other deed then. 1 prepared the deed and put in the consideration money, by direction of Nathaniel Kinsman and Ezekiel Kinsman. I did not see the old man that evening after leaving his house. The next morning 1 met him and hi.; two sons at the house of (he former • the two dceils were then })i'oduced and executed. The father repeated what he had said the ci'euiny before, about Jjr. Caldwell's advisiny security to be i/iccn. The deeds were signed by Daniel Kinsman — the one written by me, and that written by Mr. Moore. 1 am witness to both, andiVa- thanivl Kinsman witnessed that to Ezekiel Kinsman, and he witnessed that to Nathaniel Kinsman. There were some notes before signed by Ezekiel I'^insman, payable to the father, produced by him, and indorsed hjl the father to Nathaniel Kinsman, 1 think there were twelve notes and that the amount stated to be due on them was handy to £300. According to what jH(ssed among them, Nathaniel Kinsman was to pay the debts, and these notes were to help him with the mortgages. Thest notes were taken beforehand, as the consideration for the deed to Eze- kiel Kinsman, and X JO was paid, leaving about £300 still due. Among the debts to be paiil by Nathaniel Kinsman was one mentioned as due to Mr. Caldwell, and another as due to the estate of Ezekiel Kinsman, liut they stated that they were entitled to a credit of £28 on the latter. There was also a debt named to Dr. Webster, I think. Nathaniel Kins- man teas to jnty the debts due by the old man, Ezekiel Kinsman's notes were to go towards paying the mortgages. Nothing was said about the old man's living that 1 recollect. This arrangement I understood was being made under the adcice of Mr. Caldwell or Mr. Dill; — that was what was said. I understood at the same time ihtit, Nathaniel Kinsman was to settle the debts, except the £28 before mentioned. Nothing was said at that time about a debt due from the father to Nathaniel Kinsman 41i IN CIIANCKUT. '}h that I recollect^ but 1 wont be positive. Tliero wns nflorwnrtls. A'o money pn$sed at the time between the /utrtief. Nalhaniel t\!n»man sign- ed no not$ or bond, or any statement or ohlii/alion of iiHy kiml to li!$ fit- 4/ier; no list of the debts was made out. I lieiird no other dcbtH nixinoil (>, anil i.'')(> were paid and that the notes were given in full for tlic land. J eonsi* <]ered that illfU) had been given to Kzekiel Kinsman by the father, when the notes were given, wiiioh was some years bclbre. I saw the notes endorsed and delivered over to Nathaniel Kinsman. I understood that titers was a mortgage on both places, ifiren bi/ the father to II. It. Cogswell for £300 : lutJ that Nathaniel Kinsman was to pay tiiat mort- gage on account of the notes endorsed to him. At the time before spoken of, Daniel Kinsman said he had no idea his brother Kzekiel Kimman would ever call for his debt, and that the only objection they had to thut debt was £28 and interest. I understood tliat the del)ts ge- nerally were to bo paid, and that there were other debts tlian the three before mentioned, which were (o bo paid by Nathaniel Kinsman. Tiie next day when they met at the old man's, he said tliat either ^Vr. Cald- well or Mr. liill advised him to give deeds as securities to the boys. Nathaniel Kinsman alone was to give security, and tliat Kzekiel Kins- man was to have nothing to do with the payment of the debts, but had paid in full for the farm." The notes this witness speaks of were those Kzekiel Kinsman had given in 1837, for the purchase money of the farm conveyed to him on the 24th January, 3843. Shortly after this Nathaniel Kinsman gave Ihese notes to Kzekiei Kinsman, there being then due £307 on them, which, with the interest tha>. has since accrued, he still owes, and in Exekiel Kinsman's possession these notes now remain. On the 4th February, 1843, Daniel Kinsman transferred to Nathan- iel Kinsman personal property valued (by tlie witness, Cogswell,) at £36, and on this occasion he wrote for them a bill of sale which was then signed by Daniel- Kinsman and witnessed by Cogsivell, The ac- count of what passed at tiiis time I also give in the witness's own lan- guage, namely—" At the request of Nathaniel Kinsman I made out a -CALDWELL r. KINSMAN. 410 Itill ngiiiiii^t l>is father for 11 ycnr'd flcrvicc, tlic nmount wno £420. He ( Xullianivl Kinsman) told me, or gave mn n mintitu of it ; no books or voiicliirs wcr(! iirodiiccil. Tho father was present. I nlso inndo out n bill of sale of Hoinn stock, niul other things from the father to Nathamet K'/miiiun. '/7ie old man »aid it. eonUiififd all, nf any consequence, h« owned ; it did not contain the bulk of the stock upon the farm ; that^A said belonged to Nathaniel Kinsman, The old man turned out At the time the property mentioned in the bill of sale ; there wero no oxen, no» hogs, nor horses ; the household fnmitnre, they said, helantjed to Nathan- id Kinsman. This was on the farm lately conveyed to Nathaniel KinS' man. There was a pretty largo stock on tho farm. When tho bill of sale was signed, I understood from the conversation of the old man and Nathaniel Kinsman, that tho old man was going to jail. Kzekiel Kins- wan, 1 think, was not then present. A capias was served at Mr. Cald- well's suit, that day, by the deputy shcritt"; bail was given by Nathaniel Kinsman and Ezekiel AV».<»ia/i, whom his fnthcr went np for and brought with him. The bail bond was signed before tho bill of sale. I think Kzekicl Kinsman went home before the bill of {>alo was executed, am! '"' soon as this was done ho went away, before anything was said about II of sale. I understood the old man was to take the benefit of the The bill if sale was to secure the property to Nathaniel Kinsman f and to enable the father to swear out. I understood the personal properly was to (JO towards the debt claimed by Nathaniel Kinsman against hig father. My understanding was, that the bill of sale was made out in consequence of the father's intention to go to Jail, and that the debt claimed by the son against the father was to go toward that. The old man did not go to jail for a good while afterwards, and I observed no> ditlercncc in the management of the farm from what I had seen before. The bill of sale was executed a week, or perhaps two, after the deeds. The old man saw the bill for wages I made out f, they reduced to £00 1 Is. ; that they did not take any account of tl.e provender remaining on the farm, be- t&nse they were told it was to feed tlie cattle on till the spring. The Value, therefore, attached to the live stock was, or ought to liavc been, tlie increased price whicli it would in consequence produce in l!io spring. Notwithstanding, they (Estimated it at lower rates than had been attached thei'eto by Cogswell and the parties themselves. Tiie furnilurc and farming utensils they estimated at £10 1 os. Od. When tliey liad finished this valuation, r, list was handed to them whicii they copied upon the back of the apprais?ment. This list contains ilie names of a number of creditors with the sums alleged to be duo by Daniel Kins- man to them respectively, in the whole amounting to £72 7rt. .'»d. Daniel Kinsman then (in the presence of Rusco and Rankin ) dire-ted Nathan- iel Kinsman to pay these debts out of the property in tin. appraisenient, but the complaiiiants' debt was not to be paid thereout, nor was il. or that due to Caldwtll, included in the list, and ihesj proceedings wore adopted with a. view to Daniel's taking the benefit of the act for the re- lief of insolvents. These conveyances and transfers divested Daniel Kinsman of all his property, real and personal. On the 27tli January, 1843, the complainants, and Daniel Kinsman and Nathaniel Kin'.man again met, but parted as before, without coming to any arrangement in CALDWELL v. KINSMAN. 4ia respect to the complainants' debt, and Daniel Kinsman anc^ Nathaniel Kinsman did not then inform the cotpplainants of what had been done in the interval in regard to Daniel Kinsman's real estate. On the 6th February, 1843, the complainants sued out a writ of capias against Daniel Kinsman, on which he was arrested ; ana Nathaniel Kinsman and Ezehiel Kinsman became bail for him. Judgment was obtained by the complainants in May term of the Supreme Court at Kentville, in the same year, for £127 138. debt, and £6 17s. nosts. They recorded a certificate of this judgment in the registry of King's county, on the 7th June following, bi't they never issued anj execution thereon. In the same term judgment was rendered in favor of Caldwell for £37 6s. debt and costs, upon which Daniel Kinsman was committed to prison ; and on the lOth of October Ezehiel Kinsman and Nathaniel Kinsman rendered Daniel Kinsman in discharge of their bail in complainants' suit. Application immediately thereafter was made to the comiuission- ers for the execution of the insolvent acts in King's county, for his dis- charge, but they • oiused to grant it. It was renewed to the Chief Jus- tin c, but he also declined to discharge him- This application was after- wards considered by the Supreme Court in Halir-ix, and the result was also unsuccessful to the prisoner. Ho remained in jail about two years, and died therein. When he thus paried with his property, liis affairs s'.ood nearly as follow : His assets were— The farm aud land conveyed to Nathaniel Kinsman Debt due from Ezekiel Kinsman Personal property conveyed 3rd February do do 4th do Furniture and farming utensils included in the appraise- ment Hay, oats, wheat, Jcc, on the farm not transferred, say £500 806 69 10 36 a 12 10 45 6 Principal due Mr. Cogswell £350 Debts as stated on the back of appraisement 1<72 7 3 Due to complainants 137 13 Caldwca 31 £909 6 081 3 £288 3 This statement shows that a balance of £280 would have i-emaincd in Nathaniel Kinsman's hands towards his claims for wages, besides paying all his father's debts, including that due to the complainant!?, but from this balance must be deducted the interest due r-.t the denial of the defendant. The rule is therefore this, that if the atTirraation and denial be unaccompa- nied by circumstances, and the story told by the defendant be not plain- ly, and on the face of it extravagant and incredible, the Judge has no discretion; but of circumstances corroborative of the testimony of the witness, are in the case, it is for the Court to decide to which it will give its credence. Now the defendants are expressly contradicted in a mate 'ial allegation ; viz. — that in wltich thev swear, " that Caldwell did not in their hearing offer to give £1000 for the two farms," by two wit- nesses, one called by themselves, the other by the complainants. Lut without this, that part of Ezekiel Kinsman's answer (to the bill in which the defendants are charged with being the cause of the repeat- ed refusals to release Daniel Kinsman,) characterizes and discredits the whole of it. Ezekiel Kinsman swears — 1st. That he cannot sav for wliat reason " in part icular" his father was remanded to jail. 2dly. He intimates the cause of it to have been his father's confused and un- satisfact.'iry answer? on his examination; and lastly, "Ac submits" that the remanding was upon " certain points of law." What credit can any person attach to a man who thus upon oath evades plain enquiries, in which his character and conduct are so deeply implicated ? Nathaniel Kinsman's answer is still more discreditable, and is directly contrary to the standing orders of the Court. By these a defendant, in reference to matters of wlich he has had the means of acquiring personal know- ledge, (if they have happened within seven years,) is enjoined " to an- swer directly, and not to the best of his remembrance and belief." Yet, in Nathaniel Kinsman's account of the examination of his father before the Chief Justice, we have not even the witness's belief. He swears that his father was remanded, but for what reason " in particulav" " he is not prepared to say." Not prepared! He says that in reta' -ng counsel, he 'vas urged hyjilial affection alone: and therefore one would think he must have watched the proceedings with the deepest anxiety ; and that if by possibility be had been unable to comprehend why his father was sent back to jail, surely his counsel could have told him. This is the reply which he gives on oath to a question which directly charges him, his father and brother, to be confederates in fraud ! It is urged that the complainants should have excepted to these answers, if they desired more satisfactory ones. That was a matter in the discretion of the counsel, with which the Court has, in this special inquiry, no concern. Undoubtedly if these answers had been brought to the notice of the Court upon exceptions, they wou. have been dealt 430 IN CHANCERY. 1 'I with as justice required. But turning from the evasions in wliich tlioy abound to tiie cloud of circumstances corrobonitini^ Cogswell, I liavc no Itcsitation in declaring that I believe him and disbelieve tlio defendants. What the law regards as indicia of fraud are familiar to lawyers. — Judge Story thus gathers together those wliich existed in the case from which I have already cited. " They" ; ''fi conveyances) he s.iys, " wore made pending suits ; they were made lo ihe grantors' children ; they embraced the whole property, personal and real, of the father, thus re- ducing him to absolute beggary, including even his household furniture. No money was paid at the time of execution — all rested in confidence. The grantor was indebted beyond the amount of his whole estate." — > Twyne's, and other cases, give these additional circumstances as such indications, namely, when llic transfers are secret, and where the por- perly transferred remain as before the transfer, in the possession of the grantor. Now, it really appears to me that all the indicia of fraud, enumerat- ed in the books, cluster around this case. • 1st. The parties are nearly related — they arc father and sons. 2d. The father reducod himself to beggary by the conveyances and transfers, with the object of enabling hiniscll' to swear that he was an insolvent. 3d. No money passed when they were executed, nor was there any statement of accounts made, or atig bonds, or other securities, given. 4th. The transfer of the 3d February, 1843, was wholly secret ; and neither in the answers, the testimony, nor at th« bar, is any explanation given of it. 5th. The undervaluation of the real and personal propcty by liusco and Rankin, and the attempt to attach a consideration (for the transfer of the greater portion of the property, the appraisement contained) dif- ferent from that which the tranfers themselves import, and that to which Cogswell testifies. 6th. The extremely suspicious identity of the language of the biil of sale of the 3d, with that of the 4th of February. 7th. The false claim set up by Nathaniel Kinsman regarding the con- sideration of the conveyances to him of the real estate. 8th. The equally false account he gives, in his answer, of the consi- deration for the transfers of the personal property ; Cogstvell testifying that, that alleged at the time by Nathaniel Kinsman was the payment, pro tanto, of his wages. 9th. Nathaniel Kinsman's directing the account therefor to be made out, with iptereat, in which, bad he persisted, his demand would have been increased to £600. 10th. The inconsistency of his alleged reason for not persisting in CALDWLLL o. KINSMAN. 421 tliis claim, with tho contract for wages, food and clothing, which, by hu answer, ho. swears his father and he liad lon<» before entered into. 11th. Tho false assertion, to Cogswell, that tlie furniture bclonprcd to Ndfhafel Kinsman, it. being transferred to him for the. first time, fnot boing in either of the previous transfers,) by the appraisement. Here arc eleven distinct marks of fraud, any one of which would vi- tiate the whole of the transactions. Further, it no where appears in proof, nor was it suggested in argument, that when Nathaniel Kinsman came of age, he had any property of his own. Yet he would have the Court to bel'eve, that during the whole period of 14 years (although he married and had children in the interval — his wife, during her confine- ments, receiving the usual medical attendances) he neither required nor received a shilling of his wages. Tliis is pnssilh, but it is extreme- ly improbable ; and no evidence is ofTcrcd to diminish its incredibility. . Again : In the list of debts indorsed on the appraisement, J, D. Har- ris is a creditor for £20, and a promissory note, payable to him, made hy Daniel Kinsmnn, dated 13th December, 1810, for £.38 Is. Cd., is adduced as proof of the payment by Nutlinnicl Kinsman of the said £20. Now, on the back of this note Mr. Harris has written and signed a re- ceipt in the following terms : — " Paid by Mr. Nathaniel Kinsman, at stintlri/ times, the amount of this vote, and interest. ITorton, 20th April, 181.3." There is no account of the source whence Nathaniel Kinsman obtained the dilforenco between £20 and the amount of the note, and interest — all of which appears to have been paid, at dificrent times, by Nathaniel Kinsman. If it be that he paid such ditference with his fa- ther's money, why is it that the Court is not furnished with a statement of Nathaniel Kinsman's sales of his father's property, and the position of their accounts on the 24th -January, 1843. Again : Nathaniel Kins- man .lUeges that the sum of £28 8s. paid by him to Dr. Primrose, for his father, was one of the three items which made up the sum of £500 lie says he paid for the land conveyed to him. Then, his father, on the 2 Ith January, 184.3, was no longer the debtor of eitiii,r therefor. In tlie appraisement this debt is represented as still due to Dr. Primrose, and Nathaniel Kinsman agrees to pay it out of the personal property." The Court ought to have been furnished with some explanation of this apparently irreconciliablc contradiction. It is contended by Mr. Whidden that the repeated refusals of the competent tribunals to extend relief to Daniel Kinstnan ought not to inliuence mc in this case ; but I cannot concur in this view of my duty. The coiiiplainants charge distinctly that this relief was refused, because of a fraudulent combination of the father and sons to cheat the com- i)lainant3. Now, in the absence of all explanation, on the part of tho defendants, with proof before mc, that the Judges of the Supreme Court have refused such relief; is this Court, in n case redolent of fraud, *.o \Wi 423 IN CHANCERY. presume that these high judicial functionaries have arbitrarily withheld that relief from one of Her Majesty's subjects, which, if he had been an honest as well as an unfortunate debtor, they were bound to extend to him ? Would not these repeated refusals weigh with a jury in deciding such a case ? And I am considering this in the double capacity of Judge and Jury. Once more : Assuming that Nathaniel Kinsmaii'a qlaira for wages was a fair one, it had, by his own account, been fully discharged by the conveyance to him of the real estate. But the un- explained secresy of the transfer of the 3d February shews that there was an ulterior object, and of this, Rused's and Tapper's testimony gives us some means of judging. The former swears that in Nathaniel Kinsman's presence Daniel Kinsman said he never intended to pay the complainants' debt ; and he made a declaration somewhat similar to Mr. Tapper. Otherwise whence the necessity for the transfers of the 3rd and 4th February, or the undervaluation, Sec, made a'fterwards ? I can come to no other conclusion than that all these contrivances were resorted to, to prevent the complainants from recovering their debt. It is, however, urged on Ezekiel Kinsman's behalf, that he was not a party to the transfers of the personal property, and that in receiving his deed Ibe merely completed hia original agreement ; but the actions of men are here subjected to a severer test than in a Court of common law. For Example — Lord Hardwiche said (in Garth v. Cotton, 3 Atkins,) " Col- lusion is, in this Court, equivalent to fraud ;" and in Chesterfield v. Jan- tori, 2 Yez. 156, his Lordship says, " Fraud may hd presumed from the circumstances and condition of the parties contracting, and ^^I's ^o«$/ar- iher than the rule of law, which is, that fraud must be proved." " Fraud may be collected and inferred in the consideration of a Court of Equity, from the nature and circumstances of the transaction as being an impo- sition and deceit on other persons not parties to the agreement." And Mr. Justice Story, in sec. 374 of his work on Equity Jurisprudence, ex- plicitly lays down the same doctrine : " It may be generally stated," he writes, " that whatever at law Would be deemed badges of fraud or pre- sumptions of ill faith, are fully acted upon in Courts of Equity. But ft is by no means to be deemed a logical conclusion, that because a transaction could ii6t be reached at law as fraudulent, therefore it could be equally safe against the scrutiny of a Court of Equity, for a Court of Equity requires a scrupulous good faith in transactions which the law Alight not repudiate. It acts upon conscience, and docs not content it- self with the narrow views of legal remedial justice." Under the influence of these principles, then, let us closely review Ezekiel Kinsman's conduct in these proceedings. I notice in the first place that his position is somewhat peculiar, even according to his own view of it. He sets forth in his answer, " that all parties, when the conveyances were executed, being under the impression that Mr. Cogs- CALDWELL i-. KINSMAN. 4-23 welts mortgage for £300 was a charge upon Nathaniel Kinsman's farm as well as on that conveyed to him, Ezekiel Kinsman, as Nathaniel Kinsman was to pay off this debt; that his (Ezekiel Kinsman's) notes were indorsed to Nathaniel Kinsman, but that afterwards finding that impression to be erroneous, they were given up to himself, as (to use his own language) ' in justice and equity they ought to have been.' " But Ezekiel Kinsman still owes tht debt. It is yet to be applied to the purpose for which it icas, by his oion agreement, set apart. Why should he not, in justice and equity, now so apply it ? If this were a suit by the complainants (as judgment creditors representing Z)a«ieZ iCt'/Jsman) praying that Ezekiel Kinsman should be decreed so to apply it, and there were no intervening equities, such a prayer would at least be as consonant with equity and justice as that he should retain the balance of the purchase money of his farm in his own hands. That an equitable lien (in favor of Daniel Kinsman and those who represent him) was created by the speeilic appropriation of this balance (which the Court would enforce against Ezekiel Kinsman) cannot be doubted. Judye Story, in the case from which I have already largely cited, says, " if a debtor, with the intent to defeat a particular judgment creditor, lend his money, this, though a mere chose in action, and on which the judgment does not attach as a lien, may yet be followed in equity by the creditor." But to turn to the evidence as it affects Ezekiel Kinsman: — The wit- ness Cogswell, it is true, says that Ezekiel Kinsman was not to pay the complainants' debt, but this is quite reconcileable with the witness's whole narrative, and also with Daniel Kinsman's declaration to Joseph Botvlcs, " that the boys promised to pay all his debts if he would give them a deed of his property ; that he did so, and that notwithstanding, he had to go to jail." The arrangement they professed before Cogsicell to enter into (and it is even possible the father may have been sincere) was that Nathaniel Kinsman should pay the father's debts, and that Daniel Kinsman should endorse Ezekiel Kinsman's notes to Nathaiiiel Kinsman, towards tlie debt due to Mr. Cogswell upon tiie mortgage for £330. Now, the conclusion I draw from this arrangement and its at- tendant circumstances, and especially from Ezekiel Kinsman's afteriaarda possessing himself of his oion notes without paying his debt or giving any obligation to pay it is, tliat, as in getting his conveyance drawn, exe- cuted, proved, and recorded, Ezekiel Kinsman acted in concert with his brother; so, in arranging, that the father should denude himself of his property in the debt which Ezekiel Kinsman owed him, they acted also in combination, havMig this object mainly in contemplation, namely, that his father might be in a condition to take the benelit of the insolvent act, without having any thing to assign to the complainants. 1 have just noticed the proof of concert which Ezekiel Kinsman's de- laying to prove and record his deed until Nathaniel A7?is»ia?i proved 10 it IX ClIANCERT. t»nd recorded his conveynnce exhibits. Ezdid Kiusman iiitleed nlit-Roa that Ihe notes were pivon to his brother iiinlor a misconception, thnt Cogswell's mortgnn;o for £300 was an incumbrance upon Nutliatiiel Kins- man's farm, but fnidinr; thnt it was 7tot (that is conveying the idea that this claim of Cot/swell for £."00 was not a charge upon Nathtniel Kins- mati's farm,) they were given up to liim, Kzekii'l Kinsman. IJut tliis is suggest io falsi, as well as suppvessio veri. Literally it is true, the mort- gage for £300 did not bind Xathanicl Kinsinmi's farm, but the ot/ier did ,' it bound both. The Court can hardly be expected to believe that the parties who thus dealt with these notes did not examine the mortgage Inst made, as well as that executed first. To use Lord LoiKjliboro's lan- guage in a similar case before him, " Tiiis suf/r/eitio falsi speaks for it- self; it wants no testimony, it distinctly indicates contrivance." Cogswell was permitted to bo a witness to the ftrst transfer of the notes, and to the sccoh^/ transfer of personal property; the fraudulent transfer of the 3d February, like this last dealing with the notes, was kept wholly to the parties themselves. They arc both brought to light for the first time by the answers. From the father also the delivery of the notes to /'Jzeh'el Kinsman was kept a secret, so that had he been examined as an insolvent, and Bworn that he had indorsed them to Nathaniel Kinsinan, and in conse- quence the complainants had jirocceded against him, they had probably been defeated by proof that the property in them had passed out of Nathaniel Kinsman's hands. V'heti he gave them to Kzckiel Kinsman no where appears, but the bill in this case was not filed until the 8th January, 18-1.5, yet from the time they came into his possession to the present, he has made no payment or arrangement whatever with Mr. Cogswell, nor attempted to make any, at least there is no evidence there- of before me, nor that he came under any obligation to any person at any time, to ]).ny ofl'the mortgage for £300, or any part of it. As re- gards the transfer of them to Nathaniel Kinsman, there is Cogswell, the witness's, testimony; but as respects their transfer to Ezeldel Kinsman, there is none. This rests wholly in secret trust and confidence. If proceedings had been instituted by the complainants against Ezeliel Kinsman as to these notes, and he had given an answer, and Nathaniel Kinsman's evidence as evasive as their account of their knowledge why the father was refused relief, or as false as that regarding the transfer of the personal property, which I shall presently mention, by whonii could the compiainiints have proved their case ? by what agency could they have unravelled the tangled web of fraud woven around this last dealing with these notes. In a transaction so secret what was to pre- vent them from alleging that Ezeh id Kinsman had jiaid Nathaniel Kins- man in full for them, independently of that mortgage ? Qui falsi in VHo. falsi in omnibus. Men even in Courts of Criminal Justice, where ii 1*1 CALDWKLL r. KINSMAN. m their lives ar« in tlic huliuict', arn lield to intend tlio ncccssnry conao- qiiencos of tiicMr ilolilierato iwAn, mikI tlio results I liiive stated arc thosti wliioli would nut u rally I'oliow from tliese contrivances of the defendants. Furtlier, it is said that Kzekhl Kinsinan received las conveyance i« pursuance of ids original ajircenient ; but this is not so, for by it lie was not entitled to a deed, until lie had i)aid up the ir/ioU- of the purchasu money, and he had paid no money on the 2lih January, 18i.'3. What was done then is connected with the original agreement, so far only as the consideration inserted in the conveyance is concerned. The honesty of the [)arlies in respect to the original agreeuKjnt imparts no good faith to the fabrications of the 2.'5rd and 2llh .January. Minute eircumstancea frequently give a due to the intentions of parties in inquiries, such as I am now engaged in. Amongst these in this case is the singular anxiety exhibited by all of tlieni that K:vl:icl Ki)ism(in»\iQuV\ be separated from the other defendants, lie appears by himself. He answers by himself. "We are informed that although Xathutiivl Kiinman employed counsel to ap[)ly for the tather's discharge, Kzeklel Kinsnum took no part in thid, or in any of the oilier ellbrts made i'or that purpose. On the -Ith Fe- bruary, 1843, Ezekii'l Kinsman retires from the place where the trans- fer of the personal property is being made, yet I cannot but think that he was cognizant of what was going on. 1 judge of the object of the iibstinence of Kzekiii Klusnuia, by the ellbrts of all to make him n wit- ness in the cause. I judge of his own knowledge by his anxiety to sus- tain liis brother in his fraud, in his sepai'ate answer. In this, ho saya, lie believes it to be "true, that the said Daniel Kinsman did sell and nssign to Nitthanicl Kinsman all his personal property whatever, and annexes the schedule (>, as containing the whole of such property." Now in this there is no iiccount of the remaining wheat, &c., o( JJaniel Kinsman, and therefore he could not have believed that schedule to con- tain an account of «// yA^w/c/ A7ttsw6//i'4' personal property. The bro- thers act together. Thus Nathaniel Kinsman, in his answer also swears, " that the same seheduhi contains all Daniel Kinsman's personal pro- perty which has come into Km possession, or under the coh^/W of the said Nathaniel Kinsman ; which he knew to bo untrue, not only as regards that portion of the farm produce, which was tit for the food of man ; but also that which was " to be fed out to the cattle," and it is especially ob- servable, that the defendants do not in their answers speak of the latter as appropriated to feeding the stock, until the spring, although they produce a witness to swear that it was so. Here then are these bro- thers combining to fabricate a false account, regarding the personal property, in order to deceive "a Court which requires the most scru- pulous good faith in the parties who come before it." Both are con- tradicted as to the main circumstances on which this case turns, by Cogsvell, and his testimony is supported l)y facts proved aliunde, and 4U IN CHANCERY. tlicrcforo it is manifest they have botli sworn to that wliich is untrue, and wliiuli they know to be untrue. Wlicn to all IU'xa 'h ad.led, that Ezekiel Kinsman linow that no claim lor wages was made by Nathaniel Kinsman at the time of the execution of tlio conveyances of the land ; that Nathaniel Kinsman's deed was received by him upon u trust, pe- nerai, or special, to pay Daniel Kinsman's debts ; that ho was to aid him in doing so, and that ho {Ezekid Kinsman) felt himself so far con- nected with the transaction that ho authorized Jinsco to ascertain if Caldwell would abide by his jlfer to give £1000 for both farm« — I can come to no other conclusion than that Kzekivl Kinsman colluded with his father and brother to defruud the complainants, and " in this Court collusion is equivalent to fraud." I cannot, indeed, allot to each his d'le portion of the guilt common to all. I have no means of ascertaining what passed at their secret con- sultations. Save the Omniscient, probably none but the father and sons oriyinally knew — probably none but the survivors now know the precise terms of their criminal confederac}'. It is by their deeds that the hidden designs of the crafty arc unveiled. It is by the acts of Na^ thaniel Kinsman and Ezekiel Kinsman that I adjudge them both guilty. I have had some hesitation as to the extent and form of the decree to be given. So far as my researches have enabled me to ascertain, it appears that in England Chancery has hitherto confined itself to setting aside the fraudulent conveyance, leaving the judgment creditor to pur- sue his remedy by the elegit. This was done in Bennett v. Musgrove, agreeably, I presume, to the principle sti' led by Lord J/ardwicLe in Slilemon v. Andreii's, "that it is the business of u Court of Equity to remove impediments to legal rights : not to carry them I'arther tlian tlic law does." Ikit as I have already shewn, by the Imperial Acts 1 and 2 Victoria, chap. 110, the creditor was entitled only to the possession of a moiety of his debtor's lands, until out of the rents and profits his debt was paid ; and therefore if equity had unnecessarily directed a sale, it would have done what his lordship said a Court of Equity ought not to do. IJut when justice required n sale, Chancery decreed it, as in Dashwood v. Jiethay, 9 Mod. 190, where " the Court qvilckened the satisfaction of a judgment creditor by a sale, that is, taking all the profits by anticipation." So because a " mortgage is entire and cannot be redeemed in part, equity permitted a judgment creditor to redeem, and to hold the whole, until satisfied both debts," as in Norc v. Vigors, 1 Ch'y Rep. oJJ. Still, the ordinary practice has been as I have before mentioned ; how it will be attected by the Act of the I and 2 Victoria, is yet to be ascertained. Now, as I have before stated, our law gives to the creditor much raore than the mere possession of a portion of the debtor's lands ; it gives CALDWELL r. KINSMAN. 4lf liiin title to them alt, and constitutes his registered judgment nn incum* brniico on them, (not itlentieiil with,) but very Himihi" l i thnt created liy a niortgngo of tiio Ceo aiiuple. Tiien it is a governing principle hero tliat nil parties interested in tlie 8ui)jcut matter of tiie suit slinll be be* fore tlie Court, in order to u perfect decree, and tluit compl<>te justicu may bo done without leaving them under the necessity of referring tiierefor to any otiicr tribunal. liut were I only to set the conveyances aside, I should not do tho cuinplainanis full justice, and I tthouhl at tho same time violate this priMfi]>le. lly the defendants fraud, the complainants have already been pre- vented from reaping the fruit of tlieir judgment for a considerable pe- riod. To leave them Jioir, to i.-isuu and levy an executit)n, would be to delay them n)ore than two years longer. Tln;y migiit also afterwarda bo compelled to resort to an ejy 'seo occasion. Such is the decree which I have felt it incumbent on me to pronounce against Nathaniel Kinsman and Ezekiel Kinsn.jn. From the complainants' demand, and from his protracted conline- inent, death long since released Daniel Kinsman. This poor mai" ap- pears to have been ri kind parent, and to have long sustained an honest name. It is impossible not to feel deep commiseration for him — left in WOODEN V. bushp:n. 429 fxtreme old age by his unnatural sons to languish and die in the deso- lation and solitude of u prison. Conduct like this the Court can only, in common Avith all men of right feeling, deplore. But it is it's indispensable duty to express thus pub- licly its great indignation that (undeterred by i-opeated failures) they have sought to uphold their fraudulent dealings before a tribunal whosa very name should have repelled them from it's threshhold. I do not deem it necessary to enter into the consideration of the of'ier branch of the complainants' case. WILLIAM WOODEN v. CONRAD BUSH EN. November f>. 1849. Tlic Court of Clirtnecry will not cniiit to the purchaser under n foreclosure, a wrii; of assisfance lo turn out a pivrty 'vlio ims liccn lon;» in possession of tlie premises, and claims title l)y possession, and who has not been made a defendant in the fore- closure suit; but will remit the purciiascr lo his action of I'jcctment at common law. Judgment delivered by the Hon. Alexandeu Ste^vaut, M. R. I have extracted the facts on which my decision is founded frorr. the papers on file. On the Ith April 18.1, Conrod Biishen mortgaged tho premises in controversy, which arc situate in Lunenburg, to Philip Moser the older for £109, Twenty-seven and a half years afterwards, viz : in October 18 18, Mo-'fr. then of Piotou, r.ssigned the mortgage .o Wooden^ who is his son-'n-law, the consideration appearing by the assignment to have also been X109. Wooden, liowever, does not swear that he paid this or any sum to Moser, but that Moser assigned the mortgage for a sufficient consideration. Biishen long ago left Lunenburg. During the present year he ai)pears to have resided in Queen's County. It was there that the sabpoena and report were served on him. On the 5th January 18411, Wooden filed a bill to foreclose this mortgage. The parties to it are, the Wilh'ani. Wooden who is the complainant, and Conrod Bushen and Susannah iiis wife, defendants. The decretal order was granted on the 8th IMay 1819, and by it the rights of Bushen and his wife, and .ill obtaining under them, are foreclosed. Tiio premises were old by the master on the ll.'h July 1841), and bought by Mr. Sutherland fovXhQ .'ium of £31), and iiis i>etition which was filed on the 22nd September 1841>, is. that he may have the aid of the Court lo remove IVaUp Moser the younger, who resides on and refuses lo give him the possession of the pren/ises. On tlie 2.')th July 1849 Mr. G. li. Young filed ft caveat, and on the 2('>lh, I'hilip JL-shrr theyoungcr's affidavit against such aid being granted. On the 2Gth September the Court was moved for it, but observing this caveat and affidavit among tl)c pajicrs, and that Moser was not a i>ariy to the suit. 1 refused lo grant it and called for cxplan- 430 IN CHANCERY. m I i. atory nffldavits. Since then two have been fiU'd in answer to Mosers ; one by Mr. Sutherland, and the other by Wooden. AlPjilavits from Philip Moser the cider and Conrad Ihinhen have not been produced. By tlie master's report there was due, on the Cth April 1819, on the mortgage ihe p.'ncipai anu iiiiurcsl which huu uciuuuJ fiwiu the- time it was executed, njunely, X'202 2s. 2d. The younger Moser has been a long time in po.' session. — He swears that "ever since the year 1827," that is for mon tlian twenty years, " the premises have been occupied and cultivated by him, that they arc chiinied by him as his own proper- ty," " that he has built upon thorn, and tliat himselfand his son and their respective families now live thereon." Wooden knew that Moser claim- ed some interest or right ot^ possession in the jiremises before he tiled this bill; for in his aflldavit he states, " tliat Biishen iiifornied him that Moser, six years ago, had said to him, hushen, " I will defy you to put me off, my father put me there." Last Court day, ^Fr. Siifherlrind and Mr. Grai/ were heard for the complainants, and Mr. G. N. Yoiimj for Moser. My impressions against the motion were then very strong, but however strong at any time my impressions may be, I always deem it my duty to hear patiently all that counsel can urge, and whenever it is not inconvenient to defer giving an immediate decision, in order that I may carefully consider whether my own views may not bo erroneous. But I must say that the opinion which I tlien entertained was strengthened by the arguments of tlui counsel for the complainaits, I have examined the cases cited, but it is not mj' intention to go into any detail in respect to them, because 1 shall decide this motion upon a principle of universal application, viz., that bcfure a man is condemned he ought to be heard. Now, whatever Moser the younger may be — be he s(iuatfer, wrongful, or rightful pos- sessor — under his father, or in violation of his father's right ; whether his possession commenced under, or in defiance of the rights of the original owner Bushen ; or whether this possession be long or short, Moser liad fiurely a right to be heard in vindication of such possession, before it bo forcibly taken from him. He has not been atforded that op|)ortunity ; for he was not made a party to this suit, and he ought to have been made a party to it, as it was intended to atfect his interests. Wooden knew that Moser asserted some right to the possession, and therefore he is without excuse for not having mselves as- sert it — that if the fish were indeed such as they were solu for, and such as they describe thorn to have been, they could not have lost their cha- racter and become spoiled on so shoit a voyage and in the few days' in- terval which elaj'sed between their inspection here and that in Boston, unless through same foul and dishonest jractices. Tiie converse of this is also as clear — tLot if when opened there the fish were in the unsound and decaying condition in whidi they are represented to have been, they could not have been, when delivered here, free from all taint, wiiatever their appearance may have indicated, or they were believed to liave been. AV'ith two such directly contradictory statements before us — one of which being true, the other cannot be true — how can the mind hesitate to which its belief should be given upon this testimony ? On the one side we have the strong opinion — the firm belief — honestly entertained, no doubt, and the positive assertion that the fish were not and could not have been touched with taint when they left the defend- ants'. And we have facts detailed to establish it, which ^>mHay«t'/e do so satisfactorily, liut the most honest and competent witnesses are still fallible — and the circumstances appealed to, strong as tliey are, do not exclude the possibility of misapprehension or mistake. Ou the other hand, without a single circumstance from which even a suspicion of foul play can be conjectured, without motive for it being conceived, and ac- cording to the evidence of the master of the vessel by which the fish were conveyed to IJoston, without the possibility of it being accomplish- »'d, with every reason tiierefore for our rejecting the supposition, we have the positive fact inc.ipable of being mistaken, that the fish, wlien opened at IJoston, were greatly tainted and spoiled. Tiic evidence, then, on the i)art of the delendiints — giving it its lull and well-merited weight — comes up indeed to the higiiCit degree of probability, but stops short of absohite^conviction. On the part of the plaintitl's it is demonstration — it is certainty — as far as human testimony can be depended on. The first indeed would satisfy us if the other had not apiicared, but when the two are laid before us togetlier, the last must necessarily prevail. Tiie existence of a lurking taint in the fish at tiie time when they were sold, though then unknown, removes every dilUculty from the case, and explains and reconciles tiu! whole, which that alone could do. And even lliougli wo were not able to point out exactly iiow it had so long escaped d<'lectit)n and deceived tlic many experienced witnesses, yet we EASTER TERM, 1847. 433 should not hesitiitc to receive that which was the inevitable deduction from the evidence. But now that we have the whole case before us, and are led to institute a more searching inquiry into the various cir- cumstances which the witnesses have detailed than they at the time of their transaction iiad any reason to pursue, we may discover, if not the true cause, at least a very jjiobable solution of the difficulty. Every thing, it is clear, depended on the fish being well " struck" at first. If they were not so, it might arise either from the want of suffi- cient salt, or from not beiug cured soon enough after they toere taken. The finer and fatter the fish the greater was the care required, and the greater the danger to be a{)i)rehended. These fish were of that descrip- tion ; they were taken in the heat of summer, in August ; and the pro- cess of curing them took place on the deck of the vessel in some instan- ces at a distance from the place where they were taken, and after the interval of a short time. The most experienced and judicious might sur'jly be mistaken in supposing no possible harm could happen in such cases because no perceptible consequences were detected. A latent taint would not betray itself to the senses. Little, the inspector here, admits that thei-e might be a commencing decay under the back bone which would not be perceptible in the early stage of it. And others of these experienced witnesses admit that the knife applied to the back bone is after all the only sure test of soundness ; that is the part where the taint first finds a seat, because it is the thickest, and the salt does not so readily strike in. If the fish were well struck, all agree that they would continue sound. Now it was there, at the back bone, that the taint was found when the fish were examined at Boston. They were, says Little the inspector of that city, '* tainted and soft under the back bone," and therefore he thought they had not been well struck at first. But if that was so, how was it that the defect did not shew itself here ? It is stated by the witnesses that fish well salted give out no taint — that though not properly cured they will keep long in their first pickle. Experience tells them this. We without it could say as much. Ex- cUuled from the air and protected by the anti-septic properties of the l)ickle, an incipient taint, scarcely yet developed when the salt was ap- l)lied, would probably be arrested for a time in its further progress of decay, or advance so slowly as not to shew itself to sight or smell when the fish arrived here. And these fish are shewn to have been covered with salt even to super-abundance. As exclusion from the air produces tills efi'ect, so exposure to it would, on the contrary, give strength to the taint and promote its spread ; while the application of new pickle, ac- cording to the concurrent testimony of witnesses on both sides, would soon call out any latent unsoundness. Nov these fish were repacked here and some new pickle was then added. The cause then which might occasion such oonsccpience was introduced — Jie efi'f'ct which might be 496 IIAllDY V. FAIRBANKS. produced l»y it did in point of fact follow. Can wc reasonably hesitate to attribute the one to the other ? The iish wore exposed here too short a time to allow the unsoundness to display itself to the senses, but it had now received a new stimulus, and by the time they reached Boston the fish would probably attain to that state in which they were found by the inspectors when there examined. Such appears to mo a very plain and probable mode of reconciling the evidence and romoving all diiliculty from the case, but whether this be the true explanation or not, I cannot entertain a doubt that the fish had in them the seeds of decay when they left Halifax ; that the evidence conclusively establishes this ; and that the verdict, therefore, cannot be supi)orted. We are also of opinion on the second ground that evidence of usage was improperly received. The contract was to sell and deliver No. 1 salmon, and the evidence given, after an objection to its admissibility, was to establish a custom and usage of trade in this place that the de- livery of fish branded as No. 1 was a compliance with such contract ; and the remedy of the buyer was against the inspector alone, if the fish did not answer that character. Evidence may be received to shew that a particular word has, in mercantile language, o^ by custom, acquired a well known meaning, and certain mercantile contracts, as policies of insurance and charter parties, admit of evidence explanatory of them according to the under- standing of those most conversant therewith. liut such evidence must not be carried beyond its proper limits, " Usage," says I^ord Lyndhnrst in Blackett v. The Royal Exchange Assurance Cotnpany, 2 C. and J. 249, " may be admissible to explain what is doubtful ; it is never admi^ sible to contradict what is plain." In this case the evidence went a rectly to contradict the contract, and to substitute a very different one for that which the parties had made. To sell No. 1 salmon is not lo sell that which an inspector has marked as such, if in reality it was not No. 1 salmon. That includes much more than the mere brand. Size, superiority, proper curing, soundness from all taint and defect, make up that denomination of fish. It is at best but in part complied with by the brand. And no usage can limit the defenilants' undertaking so as to exclude wh".t was included in it. If it could have this effect a per- son who sells would be protected in all cases where, through accident or other cause, a wrong brand had been used, or where the fish properly branded at first had ceased to be of that character when sold. This evidence does not, however, merely attempt to vary the contract ; it violates the general law of the land. J^very contracting party is him- self liable on his contract; but this usage, if established, wouIJ relieve the defendants altogether and substitute another defendant in their place. I shall mention but a few out of the many authorities which might be referred to on these points. In the last case which I have mentioned, EASTER TERM, 1847. 487 wlioru the policy was on tho ship, boats, ice, evidcnco was rejected to nhcw that for bouts hung outside, on tlie quarter, underwriters never paid. In Jidie and another v. The Kait India Company, 2 Burrow's Rep. 1222, Lord Mansfield had permitted evidence of tho usap;e of mer- chants to bo given as to the negotiability of a foreign Bill of Exchange endorsed by tho payee without adding the words " or order." This was one of the grounds for a motion for a new trial — " that the law of Eng« land being already fully settled on this point, no evidence in contradic- tion to it ought to have been admitted." I^ord Mansfield said, and tho Court all agreed with him, J^ Mo egw i and -W«bbyy '• I am very clearly of opinion that I ought not to have admitted any evidence of the parti- cular usage of merchants in such a case — of this I say I am now satis- fivnd, for the law is already settled." In Magee v. Atkinson aud Tovm- ley, 2 M. and W. 440, a broker who sold as principal was not permit- ted to shew a custom for brokers to sell in their own names, and there- by to defeat their personal liability to the vendee. Yates v. Pytn, 6 Taunt. 44G, and Trueman v. Loder, 11 A. and E. 596, which were cited ut the argument, are also in point. Tho evidence offered to establish such usage failed to do so, it is true. But the introduction of it through several witnesses after it had been formally objected to furnished, and very properly, a ground for setting aside the verdict. If it may be said generally that the reception of im- proper evidence should have this consequence because we cannot tell what effect it may not have had on the jury, how truly may the obser- vation be applied to a case in which, inclined, perhaps, to view the situ- ation of the defendants as a hard one, they might the more readily turn to evidence on another point to relieve them from the difficulty of de- ciding on that more immediately before them. The defendants' counsel have, however, interposed two objections to this rule, both of which strike at the very root of the action. The first is, that in this case there was no express warranty, and that therefore the vendors are not liable for a loss arising from any secret defect. This position appears to us quite untenable. Although as a general rule the party who sells does not impliedly warrant the quality of the thing sold, and is not responsible if it should prove of an inferior quality or unsound, yet where a particular quality and soundness are comprised in the very name and description of the article, there is a warranty that it possesses them. These are indeed a part of the contract. And if the goods de- livered are not such as their name imports and for which they were sold, that is a breach of the contract. As in Bridge v. Wain, 1 Starkie's Rep. 3.504, where goods were sold as " scarlet cuttings," an undertak- ing that they were such must be inferred. So in Tates v. Pym, 6 Taunt 446, a contract to sell " prime singed bacon" amounts (o a war- ranty that it was such., and, the bacon having proved tainted, the ven- 438 IIAllDY V. FAIUnANIvS. i I dor was held liable. Gibbs, C. J. tlicrc snys, " All tlio witnesses sny that if it be prime singed bacon it cannot be tainted." Here, too, if the fish were not free from taint when tliey were sold, tlicy were not No. 1 finlmon. In selling them by that denomination the dcfcnilants tinder- look that they possessed that character — that they were free from taint. And, if unfortunately they were not so, though the defect had escaped their knowledge, the loss must fall on those who gave the undertaking, not on those to whom it was made, and who purchased on the faith of it. If the vendors would in such a case protect themselves from the effect of a lurking taint, they must make the exception when thoy sell. The point next taken by the defendants' counsel was very strongly urged upon us. Their position is tliis ; that when a purchase is made by a domestic factor or agent on behalf of an unnamed foreign princi- pal, the contract in such ease must be taken to be made with the agent alone, and to him alone the credit given, that the foreign principal can- not be sued by the seller, nor the latter consequently be liable over to him. The English authorities chiefly relied on for this were ^' ill. N. Pr. 130, and Thomson v. Davenport, 9 B. and C. 78. In the first of these it is said, " that when a factor to one beyond sea buys or sells goods for the person to whom he is factor, an action will lie against or for him in bis own name, for the credit will be presumed to be given to him in the first case, and in the last the promise will be presumed to bo made to him — and the rather so, as it is so much for the benefit of trade." Here, then, the proposition is not that the foreign principal is abso- lutely excluded either from the liability under the contract or from the benefit of an action upon it, but that the agent is ■presumptively the party to sue and to be sued ; which seems to admit that the foreign principal may, under circun;stanccs, be made the party to the suit. In the case of Thompson v. Dawnport, 9 B. and C. 78, tlie subject was in- cidentally introduced, and what was stiid upon it was not necessary to the decision of the case. That indeed was in some respects like the present. The principals were not foreigners but merchants in Scotland, who purchased in Liverpool by their agent there — the agent represent- ing at the time that h^ as purchasing for a Scotch house, but not men- tioning their names. The purchase was on credit, which gave rise to the suit. It was bronght against the principals for the price of the goods. It was held that though the seller had first debited the agent with the price, he still might afterwards, when he discovered who the principal was, sue him. In his judgment. Lord Tenterden said, " that when it was a British merchant buying for a foreigner, according to the universal understanding of merchants and of all persons in trade, the credit is then considered to be given to the British buyer and not to the foreigner." And Bailey, J. stated, " that there may be a course of trade by which the seller will be confined to the agent wlio is buying, and not EASTER TERM, 1847 439 be at liboi'ty nt all to look to the principal. Generally speakinff, that is tlio case when an agent here »uys for a house abroad." Even accord- ing to thia tlic rule is not without its qualiflcation, and the expressions of Lord I'enterden leave as wide a latitude for interpretation. But wo ought to receive with great caution dicta such as these, though fdlling from tlie highest authority, when the point to which they relate was not immediately before them, — referring as they do to the understanding of the mercantile community, and having no direct decision to support them, which I have been able to find, beyond the passage already men- tioned from Duller. In such remarks there is apt to be less precision of language, as there is less opportunity and necessity of considering the subject, than where the decision of the case requires that the rule should be accurately defined. Mr. Justice Jiayley had before, in Patterson v. Gandasequi, 15 East. 69, spoken of the exemption from liability of the foreign principal in less positive terms. He there says that " there may be a particular course of dealing with respect to trade in favor of a foreign principal, that he shall not be liable in cases where a home prin- cipal would be liable. That would be ft question for the jury." And it is not undeserving of note, that in the same case LeBlanc, J. says, " that it may be necessary to consider whether any distinction can be made between a home and a foreign principal." So that the law does not appear to have been quite so clearly settled or understood. Ac- cording to what was said by Eyre, C. J. in De Gaetton v. L'Aigle, 1 B. and P. 3C8, the object of this rule of law was rather to protect the sel- ler, for, as he states the principle, it is, that " if a person, describing him- self as agent for another residing abroad, enter into a contract here, he is personally liable on it." And in Smith's mercantile law, 78, this is supposed to be a branch of the following general rule, viz. that where there is no responsible employer, the agent shall be held personally re- sponsible." Supposing, however, the distinction drawn in the above cases between the liability of a foreign and of a home principal, to exist, it appears to me that it may be this — that the latter, when discovered, will be liable to the seller in all cases, unless where he can discharge himself of that liability ; but that a clear case of liability must be es- tablished against the foreigner to make him so. The presumption will be in his favor that he is not liable, and the ohm* of proof consequently will rest with the seller. This view seems supported by the opinion of Mr. Justice Story, which was much pressed upon us by the defend- ants' counsel ; and undoubtedly the great learning of that writer, and a reputation not limited to his own country, may well entitle him to be received in ours as an authority, particularly on a point of commercial law, which equally concerns both. lie thus states, " the general rule, Ibunded partly on the ground of general convenience and usage of trade, fluU agents or factors, acting for merchants resident in a foreign coun- 18 440 HARDY r. FAIRBANKS. Uy, are held personally liable upon all contracts mado by tlicm witU Iheir employers, whether they describe themselves in the contract a* Agents or not. In such cases the ordinary presumption is that credit is given to the agent or factor, and not only that it is given to tiiem, but that it is given to them to the exoneration of their employers." Stonj on agency, section 2C8. It appears, however, from a note in 2 Kent, 4t>3, that this doctrine is by no means adopted to this extent in the United States. Mr. Justice Story has adverted to this in a note to his own work ; and vindicating himself there, says, " I confess myself not satisfied that there was any error in the text which propounds the credit m ease of foreigners to be an exclusive credit to the agent, as a matter of presumption, liable indeed to be rebutted, but still a presumption, which is to prevail in the absence of any usage or contract to the con- trary." With these last qualifying expressions, though the language may bo more strong, I do not know that after all it ditters very materi- ally from the rule as laid down in liuUer — the source from which all others have derived the law, as far as it is to be found in the books. It is nowhere said that in no case would the foreign principal be liable. Neither the rule nor the reasons on which it is founded require that ho should be exonerated ais a matter of course, but that he should not as a matter of course be held responsible to the seller. The general rule may confine the liability to the agent, making him always responsible, for the benefit and protection of the seller, and that the principal abroad may not be without protection also, his liability is dependent on the proof, by which it may be shewn that though the credit was presumptively given to the agent, his employers were novertholess to pay the seller for the goods, and are still responsible. Leaving, however, that question to be settled in each case according to the facts which may appear, how stands the converse of the rule ? for with this we are chiefly concerned. How far are the rights of the foreign principal and his remedies touched by it ? The proposition that he cannot maintain any action against the seller does not appear to be any where laid down. It was put by the counsel upon this, that the seller had no remedy against him. But if this be not universally true, that which is predicated upon it must fall to the ground. Perhaps, generally speaking, where the one liability exists, that of the other will follow ; but it is not so clear that the one altogether depends on the other. They are rather to be looked upon as distinct and independent liabilities. It is after all a question of evi- dence ; and the right of action of the vendor and of the foreign p/incipal against each other must depend upon the case which they can severally establish. The vendor will have greater difficulties to contend with, because he has not the same knowledge of all the transactions, and of the dealing between the agent and his principal ; while the latter possess- ing this advantage, may more easily make out his case. Tiierc are KASTKll TKinr, 1817. 441 faacs, too, iti wlilc-h tlic i-ftiTU'dy by aoiion U not reciprocal. Thin a vcmlor who gives credit to tin nj^cnt, wlion he Itnows the principnl, cun- not nCtcr this loolt to the Intter ; yet the principitl does not the lv>iA pos- sess the riglit to sue the vendor. The present, however, is a case in wiiicdi, from tlie very nnturc ol'tlie tninsaction, tlierc could be no mu- tual liability. No credit was given, and the vendors never liad any cause of action against any one for the price. Nor can the case be ar- gued upon the supposition of a credit given, for that would be to siriko out of it one of the essential elements upon which the right of the foreign merchant to sue here mainly depends. The agent, when he purchased, did it avowedly as an agent for a foreign principal. The fish were, in fact, bought for the plaintiffs, and were not merely paid for at the time, but paid lor with tho plaintitls' money. Wiiethcr, under these circum- slances, the mere agent could sue, and for a loss which he has never sustained, it is not necessary for us to decide. At all events, when he disclaims all interest in tho transaction, leaving his employer to seek his remedy for that which concerns him alone, I cannot understand what sound principle of law would exclude the latter from redress upon tho ground of his being a foreigner. Tiie general rule is that an unnamed principal may declare himself and sue upon a contract which has been made by his agent, o Maulc and Selwyn, 391; 10 IJ. and C 072 > a IJ. and Adol. 30.j. If this does not equally apply to a foreign principal, and he can sue upon no contract so made, what shall we say of the clfects of such a restriction upon the numerous transactions of foreign trade of a conmiercial country like Great Britain ? Take, among many, the case of a policy of insurance effected in his own name by an agent, but in reality for an undisclosed foreign principal. If the law be as contended for, the latter could maintain no action for a loss under this policy. Yet the case of Maatiss v. /fenderson, 1 East. 335, was just that. Tlie plaintiff tliere was a Prussian merchant residing in Prus- sia, He consigned his ship to Jennings, of Liverpool, with orders to ciiarter Iier to Uiga and to clVcct insurance thereon. Jennings opened (lie policy in his own name witii defendant's, brokers, of Liverpool, and nothing was then said by him whether tlie policy was on his own account or any other, except that he stated it was neutral. Jennings being in- debted to tlie defendant on a general balance, and having failed, the de- fendant attempted in an action on this policy to retain the amount iu his hands to cover this luvlance, on the ground that the principal not being disclosed, it must be considered that the credit was given by the defendant solely to Jennings, liut this was overruled on the ground that Jennings having stated that the property was neutral, was a suffi- cient indication that he Wcas only acting as agent for another, tliough the principal's name was not disclosed. It does not secn\ to have occurred cither to the eminent counsel in tliat ease or to the Court, that a foreign I 442 KARDY i: FAIKDANKS. *^r'.c^'/ principal coukl not sue upon u contract made by his agent. Anil that case strongly exemplilies tiie i.ufcssity of permitting it, Tor il' the agr-nt alone could have brought the action, the defendant, with the knowlci'gc that he was dealing with an agent, would have been allowed lo ^ci, otl" his general balance against the claim, to defeat the just rights of the principal. AV'herc a foreigner purchases goods through an agent, the protection of the seller requires that he should have a mark within his reach, and the agent in such case ought clearly to be liable to him ; but it does not seem so clear that any fair benefit to trade can make it ne- cessary that the foreign principal should bo exonerated from all liability — he will be sufficiently protected, I .^should have thought, by that tpialili- cation which is stated by Jiayley, J. in Thompison v. Davenport, with respect to the liability of a heme principal, " that he shall not be preju- diced by being made personally liable, if the justice of the case is that he should not be personally liable." But be that as it may, no sound commercial principle can, I think, require that the foreign merchant who purchases through an agent should have no redress against the seller. On the contrary, I believe such a general rule wouM be most injurious to trade and most opposed to the true policy of every com- mercial nation. As the opinion oi Mr. Justice Story has been so much pressed upon ua, it is satisfactory to find in him an authority in accord- ance with the views which we entertain upon this particular point now under t'vnsideration. lie says, sect. •420, " the principal is ordiniiriiy entitled to the same remedies against third persons as if the acts and contracts were made or done with him personally ; the rule, it is said, equally applies, whether the principal be a foreign or a domestic prin- cipal." In the case which hv cites for this, Trainer v. Prenderyust, ." Hill R. 72; Story on agency, sec. 2GH, note, Mr, Justice Cowc7i states his opinion in terms so fully expressing my own that I may here bonow them: " Even in case of a foreign principal, I appnjhend it would be too strong to say that when discovered he would not be liable for the price of the commodity purchased by his agent. On the otiier hand, I am still iu want of an authority that where an agent acquires rights in a course of dealing for his princip.al, whether the latter be foreign or domestic, and his name is kept secret, the pr^icipal may not sue to en- force those rigl'its. I admit that tlie defendant is not by such form of action to bi! cut off' from any ecjuities he may have against the agent. So far the later is considered the exclusive principal, but no further. As a gc'ieral rule the ag'^it cannot maintain an action in his own name at all, and thy exception will be found to arise from cases whoru he ha^ the riglit of a bailee, or dome other rii/ids — not the mere powers of a naked agent." The rule for a new trial will be made absolute. Uule al'solutt. SUPREME COUIir. I>E01SI0NS AT CIJAMUKKS. RIMES V. O'BRIEN. January H, ISfjO. This was a motion on allidavit at chambers before Hallibukton C. .]. for an order to sut aside an order to hold to bail and subsequent pro- c(>eding.-i, on tlie tlirce grounds specified in the summons, viz. : 1st. Tliat tiie order to hold to bail does not specify any period within which tlie writ of capals should be issued. 2d. That tlie atUduvit to hold to bail is defective in not setting cut the grounds of the plaintitT's belief, nor the name of the person or persons by whom the plaintiff was informed, that the defendant was about to leave the province. .•5d. That the defendant was master of a packet vessel in the Boston trade, that his family were resident here, and that his intended absence was merely tom[)orury in the exercise of his usual occupation. The last point was laid as a ground for setting aside the arrest and Iiaii bond only. James for defendant cited Pract. Act, s. G ; 7 Dowl. 493, 735 ; 5 M. and W. -iL'.-i ; .'■> Bing. N. C. 52 ; 2 Dowl. N. C. 811 ; 1 Dowl. N. c". 283, 819 ; 8 M(!e. and W. 147 ; 1 D. and L. 715 ; 4 M. and W. 351 ; Arch. New C. L. Prac. 38, 40. ■i. W. Ju/iiislon, Jr., contra. Jlis Lordship the Chikk Justick (Blj39, J. being present and con- cT.rring) granted the order on the first ground with costs, and intimated (fiat he had no doubt the two other grounds laid were fatal to the pro- ceedings. Order granted, with costs. |_NoTi;.~In llunisteud v, O'N'ill, the proceedings were set aside by Ui.K^s, ,1. at Chambers in September following, upon the second ground abovi; mentioned.] 44i EMMES V. TAYLOR. S! ; 'A ii 3 ii EMMES et al v. C. J. TAYLOR. January 16, 1855. Before Halliburton, C. J. at Chambers. Pleas clearly shewn by affidavit to be false will be set aside ns being rexntiou!). This was one of three similar motions in causes against tlic same de- fendant, for an order founded on summons, previously obtained, calling on the defendant's attorney to shew cause why the pleas filed and served in the cause should not be set aside as being frivolous and vexatious, upon the ground that such pleas were false, and that there was no real defence to the action, and the plaintiff be permitted to enter judgment as in case of default. The action was for debt. It appeared by the affidavit of the plaintiffs' attorney that the de- fendant having assigned his property to his attorney in this action for the benefit of his creditors, had placed the plaintiffs' claim, specifying the amount, in the schedule annexed to his assignment as an existing debt, and his attorney had given written notice to the plaintiffs of tlie fact, and invited them to become parties to the assignment ; that tlic said attorney had repeatedly, before and since action brouglit, requested plaintiffs' attorney to execute the assignment for them ; that he had notwithstanding filed three special pleas denying the original cause of action ; and that he had filed pleas precisely similar to two other actions against the same defendant, the plaintiffs in whicii were difreront firms in the United States, and the causes of action arose at different times and under different circumstances. Under these circumstances the plaintiffs' attorney (the plaintiffs being absent in the United States) tes- tified to his strong belief that the pleas were utterly false, and intended only for delay. James for p.'aintiffs argued that the Practice Act having given the Court or a Judge power to set aside frivolous and vexatious pleas, whenever a plea was established to be false in fact, and only intended to delay the plaintiff or put him to expense, it came witliin the rule, and the fact of its falsity was to be establisiied in the same manner as otiier facts on which the Court were to decide. The affidavits in this case being uncontradicted must be taken as true, and the pleas held to be false, and therefore vexatious; and cited Nizetich v. Bonacich, o B. and A. 904, in which an arrest founded on an affidavit to liold to bail had been set aside in similar circumstances, on the ground of the falsity of the affidavit. Wallace, contra, contended that this would be trying the merits of the cause upon affidavit. I SUPREME COURT, 1853. 445 After taking time for considerailon, IIis Lobdship su-staiiied the application in cacli of the three cases. Order granted, with costs. [Note. — This practice has since been extensively followed.] GERROIR V. DICKSON, et al July 1, 1835. Before Bliss, J. at Chambers. Wilts issued and served in Pictou and returnable in Capo Breton should be mad* returnable in tliirty days after service ; but the defect will be amended upon pay- ment of costs. James applied for an order, following a summons, to set aside a writ issued and served upon the defendants in Pictou, where they reside, and returnable at Arichat, in twenty days, for irregularity in the return day, and c! Act of 1854, ch. 7, sec. 1, and also several cases to shew that the dc:\;' juld not be amended. Wilkins, Q. C, contra, argued that the defect was amendable under sec. 117 of the Practice Act. James in reply contended that this and the two following sections did not extend to writs, the amendments lo whici were specially mentioned in Practice Act, sections 40 and 41. Bliss. J. The Court will give a liberal construction to this general amending clause, and I think it is applicable to this case. The plain- tiff auny amend on payment of costs, giving the defendants twenty days after the amcndmei.i to appear and plead. Order granted accordingly. CUTLIP V. COOK. July 1, 1855. A writ )trima facie regular will not be set aside far an jrregulerity in the return day appearing upon affidavit Before Bllss, J. at Chambers. Tiiis waf^ a similar application to the last case, the writ having been issued and served in Halifax where the wr t was made re- turnable 11. ten day^i, but it appeared by the defendant's aflidavit that •IK! JOHNSON V. ROSS. he was resident out of the county of Halifax, and was served while casii- ally in the county on his way to the United States. James for defendant cited Tidd's practice, 901, and cases there cin.il, to shew that the casual presence of a party within a district when served was not such a residence as was contemplated by the statute. Sutherland, contra, argued that the writ being regular upon its face, the plaintiff would not be presumed to know where the defendant's resi- dence was, and the defendants' affidavit did not shew that he had such knowledge. Bliss, J. The writ in this case is distinguishable from the lust ap plication as it is /^nma/jEcie regular, and therefore I must refuse the order ; but as the defendant was entitled under these circumstances to the enlarged time to appear and plead, an application was necessary, and therefore I will discharge the order without costs. Order refused. JOHNSON V. ROSS. July 20, 1855. Before Bliss, J. at Chambers. Writs of replevin should be made returnable under the Act of Ib.jJ, ch. 7, and not on a special retui'n day. Johnston, Q. C. moved before Bliss, J. at chambers for an order to set as'de a writ of replevin upon the ground that it was made returnable ten days after service instead of one of the special return days mention- ed in Practice Act, sec. 10, and argued that the amending Act of 1851, ch. 7, sec. 1, only applied to writs of summons, and not to replevin or attachment. Ritchie, contra. Bliss, J. This (juestiou has already been argued before the Court (in Creighton v. Daniels) as regards writs of attachment, hut is not yet decided. I do not know the opinion of the other .ludges .-is wo have not yet consulted upon the cjucstion, but my own opii&uun is in favor of the uniformity of process, and therefore I must su^taia the writ. Order rcfuscv. INDEX. Court iiol yet have iivor <>♦' 304 304 320 320 347 388 ABANDONMENT: PAGfi. See Insurance and Trover. ABATEMENT: See Nuisance, Pleadings and Joinder. ABSCONDING DEBTOR: An attachment against an absconding debtor does r ot bind property not actually levied on. — Creighton v. Daniels. If a sheriff has improperly omitted to levy, the remedy is by action against him, and not by rule to amend his return. — Ibid. Process against a party as an absent or absconding debtor will be set aside upon affidavits that he was at home and about his ordinary bu- siness when process issued. — Staples v. Taylor. The fact of a defendant merely keeping out of the way of service of process is not a sufficient ground to sustain process against him as an absent debtor. — Ibid. .^. writ of attachment against an absconding debtor will not be set aside for defect in the return day, except at the instance and for the be- nefit of the defendant ; and where grounds are laid for supposing that the application may be made for the interest of a subsequent at- tacher the Court will require affidavits to the contrary before grant- ing the rule. — Creighton v. Daniels. An attachment against a defendant as an absconding debtor will be set aside on the defendant shewing that ha.ing left the province with the intention of returning immediately, his absence was prolonged by unavoidable delays in concluding his business.— Murdoch v. HugJies. ACCRETION : Possession of lauds extended by, see Possession. ADMISSION : The purchaser of a tenancy by the curtesy is not estopped, by accept- ing a conveyance, from disputing the existence of that estate as against the heir of the deceased wife, but the acceptance of the con- veyance, unless explained by other testimony, is a very strong ad- mission of the existence of the estate which it professes to convey, and of the title of the heirs after the termination of that estate. — Archibald v. Blois. The admission on the record that parties are alive, precludes the pre- sumption of their death, arising from continued absence. — Doane v. McKenny. AFFIDAVITS : An order of sessions for removal of a pauper, granted upon insuffici- ent grounds, cannot be sustained by affidavits of facts omitted to be verified before the order passed. — Bamahy v. Gardner. AGENT: See Principal and Agent. AMENDMENT: The Court will permit the defendant to amend the description in the consent rule after verdict against him, upon payment of costs of the fonner trial. — Gillis v. Campbell. of declaration, when of unnecessary length. — Woodworth v Withrow. of declaration, when not made within twelve months the Court will grant rule nisi for discontinuance and taxation of costs. — Trenholm V, Trenholm. 307 328 309 48 10a io<; 448 INDEX. ■'K. I 4¥. — (- 320 344 139 Amendment (continued). Page. of commission granted. — Salter v. Hughes. 248 The Court will not amend a defective writ in so many particulars as to make it an entirely new writ. — Staples v. 'Jui/loi: The Court will not amend the plaintilf's writ during argiuncut of a motion to set aside the verdict. — Doune v. McKenuy. Elter V, Copp.—S.'P. APPEAL: Objections by appellant to the regularity of proceedings before Justi- ces must be brought to the notice of the ('onrt during the first tbui' days of the term, and before the cause comes on U)r trial. — O'ntham V. Lapierre. And see summary cause. ARBITRATORS : See award. ARGUMENT: See new trial. The Court will postpone an argument after it has commenced where it appeal's to their satisfaction that injustice will otherwise be done, for want of evidence in the adidavil^, njioii a material jioint — O'Brien v. Young. !<' ARREST: See Bail. ASSIGNMENTS: , See Iiisolrent Dchtors. An assignment of goods to a trustee, for the benefit of certain specified creditors, gives no legal riglit to those creditors, unless assented to by them, but tlif property remains subject to the control of the as- signor, who may mi any tune revoke the trust. — Falconer v. Surri/cr. 277 Qucre. Whether creditors, to signify their assent, must execute the as- signment, or whether their assent may be implied from other cir- cumstances. — Jliid. 277 Where personal property is assigned hona. jlde to pay a debt due the trustee, who accepts thi' tru>t, its rcvoiatiun may be implied from ,subse«pient conduct of tlie parties wlioUv ^n^^'nsist(■nt with the tru-l. —lliid. 278 by bill of lading, sec Trover. ATTACHMENT; See abscxmding debtors. AWARD: Arbitratois having once made and published their award cannot sub- seipiently alter it. — //((//'/o7( V. Ihmr,. 2"U An award will not be set aside on a<'couut of tlic ouiis-.-ion ol the arbi- trators to decide on matters iml siibiuilti 'I to llicni pr('\ii.)U^ tu the making of their awai-d. — Ihhl. 2-">i; If parties to an arbitration knowingl\ jicimit tiie arbitrators lo examine witnesses without oath, and do not object at the time, such oniissidu is not a groinid tor setting aside their award. — Ihiil. 'J."ji; In order to sustain a j)arol sulnnissioii tliere must be clear evidence that all tlie j)arties \>> it intinuleil it to operate as a reference. — DJap V. Foster. .'i;i.') BAIL : I'risouers chargeil with nmiiler cannot be admitted in iiaii exi'cpt un- der e.\treuie circumstances, — otherwise with acces!«orics after the fact. Queen \. Murp/iy. Ijs An oixler to hold to bail must spccity a pcfiod wiihin whi.'li a cc-^pins mav be issued.— i?i?/K\? v. O'Brien. 443 INJ>EX. 449 Page. 3 to 320 fa 311 13'J 67 2^0 •2:)i; '.'.". I i 3:!.j loH 443 443 248 Bail (conlbmed). Page. An aflidavit to hold to hivil must tset out the grounds of plaintitT's belief that diileudaut isalx)Ut to leave the province. — Ibid and Barnstead v. rce in this PrOTincc— U/jtad'e v. Dickson. -69 113 189 340 45 306 398 429 56 183 248 303 287 450 INDEX. COMPOSITION: Page. See License, letter of. CONSIDERATION: In action to recover back, agreement being void, plaintiff' must prove terms of am-eement. — McDonald v. McDonald. 41 failure of, in letter of license, from only one creditor having executed, held fatal to its validity. — Mooney v. Bossom. 254 CONTINUANCE: A summary cause which has been referred to a jury cannot be con- tinued by plaintiff without special motion. — Uniacve v. Gardner. 59 Granted when important witnesses could not be found. — Ibid. 69-60 Skinner V. Lane. — S. P. 247 Where a material witness for defendant gave notice, after action brought to the defendant's attorney, of liis intention to leave the provmce, without stating the precise time, and afterwards went away suddenly, the Court refused a continuance on account of his ab- sence. — Keith v. Hadley. 1 76 Keith V. Tremain.S. P. 177 The Court will not grant a rule nisi for a continuance on account of the absence of a witness, when the application is not made sufficient- ly early in the term to allow plaintiff to answer the rule tlie same term. — Purcell v. Burke. 334 will not be granted to defendant for absence of witness, when plaintiff would be delayed by defendant not using diligence in moving for a commission. — Jones v. Williams. 303 The defendant in order to obtain a continuance on the ground of a commission not beipg returned, must shew that he has used due di- ligence to obtain its return in time. — Landry v. Jones. 341 Ferguson v. Hyde.—S. P. 334 Smith V. Maxner.—S. P. 341 CONVERSATION: Proof of part of a convereation, the witness having left before it was terminated, is not sufficient evidence of a demand of possession. — Etterv. Copp. 344 CORPORATION: Execution against. — Churchwardens \. Davison. 106 COSTS: See amendment and taxation. on settlement without attorney's consent. — Johnston v. Maiheson. 02 in Probate Court, see probate. of appeal from order of filiation. — Overseers, i^c. v. Bryson. 1.12 The granting of a certificate that an action of trespass was brought to try a right, so as to entitle the plaintiff to costs, is a matter for the discretion of the presiding Judge, with which the Court will not in- terfere. — Mc Gilbvray v. Mclsaac. 1 .i.') The Court will not grant costs of the terra for not proceeding to triiil, when it appears that the defendant was not ready for trial when the cause was called. — Brown v. Wallace. 264 Cripijs V. Marriott.— S. P. 266 In considering an application for costs of the term the Court will act upon their discretion, upon the circumstances of the case. — Ibid. 266 of term granted, cause not being at issue for want of replication. — McDougall v. McDonald. 2t>tt A mere notice to a sheriff of an intended motion to amend his retain will not entitle him to costs of affidavits to oppose motion for a rule nisi. — Creighton v. Daniels. 304 Affidavit for costs of term incurred prior to notice of countermand must shew necessity for incurring the costs. — McAlmonl v, Boudrot. 338 INDEX. 451 41 254 176 177 334 308 S41 334 341 344 106 32 1 .15 •264 266 266 26 ft 304 338 367 48 184 844 CEOWN OFFICERS: Page. Appointment of Attorney and Solicitor General. 182 DEATH : Presumption of — see admission. DECIDED CASES: Decisions of the United States courts, although entitled to respect, are not bindinc in our courts. — Roberts v. Patillo. DEED: From administrators for payment of debta, objections to not favored af- ter thirteen years possession by purchaser ; but where deed convey- ed more land than was advertised, held fatal to title, as to the surplus. Recitals in deed held presumptive evidence. — Gillis v. Campbell. DEMAND OF POSSESSION : Where the defendant goes into possession of land as tenant at will un- der a third party, but upon the invitation and with the concurrence of lessor of plaintitf, he is entitled to a demand of possession before he can be ejected. — McKinnon v. McDonald. Where the plaintifl" and defendant in ejectment resided together upon the land, and defendant had no occupation separate and distinct from that of the plaintiff", proof of demand of possession previous to action brought held not necessary. — Phelan v. Phelan. Unfinished conversation, no evidence of, — Etter v. Copp. DEMURRER: See pleadings. DEVIATION : See insurance. DISTRIBUTION : See probate. DOWER: See mortgage. EJECTMENT: See overholding. ESTOPPEL : An estoppel may be sustained upon a direct and irresistible inference from the woi-ds of a deed. — Archibald v. Btois. And see admission. EVIDENCE: See usage, boundary, aad frainl. Defendant in possession may prove fraud in plaintiff^ deed irom a third party. — McKinnon v. McDonald. In order to recover back money paid by plaintiff", under an agreement for sale of lands to him, on the ground of failure of consideration, Elaintiff" must give evidence of the terms of the agreement, to entitle im to recover. — McDonald v. McDonald. of license for sale of land by administrator. — Gillis v. Campbell. Recitals in administrator's deed, when evidence of advertisement and sale. — Ibiil. The admission of a husband, as to the boundaries of land held by him in right of his wife, are not binding upon the wife ai'ter his decease. DesBaures, J. dissentiente. — Dill v. Wilkins. Any admission of boundary to be binding, must be made with a full knowledge of the facts, and this knowledge is a question for the ju- ry. — Ibid. A defendant disputing the bona fides of a transf"er of personal property to plaintiff" must prove himself to be a judgment creditor or an offi- cer acting under legal process. — McGilvray v. (libhons. A latent defect in a grant cannot be remedied by parol evidence. Brennock ▼. Fraser. 307 41 48 48 11.-? 113 152 178 493 INDEX. 178 M14 432 EVIDENCR (rontlnued). PagE. In onltT to correct an error in the «(o«. EXECUTION : Ajiainst Cor|)oration, dhureh Wardens v. DucUuu. In execution on ajud instruct the sheriU'tolevy (or interest. — F/eii/cr v. 'J'di/lor. An execution uniJor which sherilf justilies must be proved by delend- aut. — McGilvr2 18;^ 277 ■ill 108 1(18 108 038 379 152 264 277 37!) 231 178 FuAUD (conl'iniicil). Paqe. seventeen years, together with acts and acknowlcdgnicnti by him in- consistent with his title, siil)sequcnt to the making of the deed to liim, are evidence for the jury against its validity as a boiuijide con- veyance. — McK'mnon v. McDonald. 7 A defendant in possession, under an agreement to piirehase the land from a third jjarty, may defend his iiossession by shewing fraud in the deed under which the lessor of plaintitr claims. — Ih. 7 Evidence of, in transfer of personal property in action against sheritl". — McGihrwj v. (lihhons. i'^U'ect of, in obtaining letter of license. — Mooney v. Dossom. The Court will review a vei-dict negativing fraud in an assignment of personal property, and set it aside when contrary to a strong pre- ponderation of evidence. — Falconer v. Sawyer. Qiierc. — Whether a charge of a gross private fraud will sustain an ac- tion for slander, without special damage. — Hall v. Qirtij. Where a party obtains an estate in fraud, the Court of Chancery will not only set asidi; the conveyance, but direct a sale of the property to satisfy the claims of parties equitably interested. — Caldwell v. A7/(j>'- man. 398 FRAUDS, STATUTE OF: A verbal agreement between A and 15, that li shall take a net in pay- ment of his debt, although intended as a final agreement by the par- ties, is not a suflicieut compliance with the statute of frauds to trans- fer the property to li. — McKen~ic v. llobcrtson. GRANT: Parol evidence to explain latent defect in, — Brennock v. Fraser. HIGHWAYS: Tlie title to the soil of liighwnys laid out under the statutes of this Pro- vince through the lands of private individuals, and for which they have received comjjcnsation, is devested out of the owner of the ad- joining land, and absolutely vested in the crown for the use of the public. — JJiswntknles, Hali.iuukton, C. J. and Doui>, J. — Koch V. Davphince. INSANE : It is the duty of the IvKcculivc Govcnimcnt of the province to assume the custody and care, of j)(;rsons accpiitted of criminal charges upon the ground of insanity, wliicli by the common hi w of England is vest- ed in the crown. — Queen v. Martin. insolve:nt debtor: Assignment by, not absolute. — Mayhtw y. Fen. Goods fraudulently assigned hy may be taken under execution against him. — F(dconer v. Sawyer. INSPECTION OF PROVISIONS. )kc. See Warranty. INSURANCE: ^, ,. I'nder a policy to cover a vessel from the '• commonoemcnt of loadmg ' and the goods fixuu "tlu^ loading thereof on board" at a particular place, tlie ri^^k wiilconuneiiceat the sailing from that place, although the vessel was loailed pricr to Imr arrival at the /erminun a ^uo, pro- vided there is anything o iiidioite that a prior loading was intended by the parties to 'the jiol ry.— CvigUm v. Union Marine Insurance Compani/. Pel-mission' indoi"sed on a ])c'..i-\- "i insurance subsequently to its exe- cution and prior to the coiim'unci ment of the risk, permitting avea- sel for an additional pivniiun to use a port out of the course of the voyage previously insured, includes permission to take in cargo at that port, but does not alter the krmini of the original voyage— -iJ. 195 159 322 108 277 195 '> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 I ItilM |25 £f 1^ 12.0 L25 II 1.4 lias A" o ^ ^^ ^ w ^<«»- > Hiotographic Sciences Corporation 23 WIST MAIN STRUT WnSTn,N.Y. USM v716)S7a-4S03 451 INDEX. Insurance (continued). Paoe. Under such circumstances the policy and memorandum will be taken together and receive a reasonable construction, according to the cir- cumstances and course of the voyage. — lb. 195 A transaction occurring prior to the arrival of the vessel at the termi- ntis a quo, by which her arrival at that terminus was not delayed, nor the risk varied nor increased, held not to vitiate the policy. — DissentieiUes, Bliss, J. and Dodd, J. — lb. 195 Ed "ect of notice of abandonment. — Stalker v. Wier. 248 Plea in answer to an allegation of constructive total loss and abandon- ment, shewing a deviation before abandonment, and a resumption by the plaintins of the voyage after abandonment, and also of the control of the property, and its sale at another port before reaching destination. Held that plaintiff was bound either to demur for du- plicity or to answer the deviation, the subsequent resumption of the voyage, and also the sale of the cargo and abandonment of the voy- age, each of these being material averments. — Fairbanks et. al. v. Union Marine Insurance Company. 271 Plea of deviation does not answer a partial loss occurring previous to the deviation. Declaration alleging a partial loss before going to Barbadoes, followed by a subsequent total loss after arrival there. General plea of deviation. Held that the plea should have stated that the deviation took place before any loss occurred. — lb. 271 General plea of deviation, in answer to a count stating that vessel went to Barbadoes as a port of necessity, where there was a con- structive total loss and auandonment, must aver that the deviation took place before any loss occurred, or otherwise must controvert the alleged necessity. — lb. 271 The count alleged that no vessel could be procured at Barbadoes to carr}' on the goods. Plea that plaintiffs made no inquiry, and took no means tn sei><1 on goods, held bad as not amounting to a denial. —lb. 271 ^VTiether in case of shipwreck the master is bound to send the goods to an intermediate port for re-shipment, when there are no means of transport direct to destination of cargo, — is a question depending on special circumstances, and the possibility of such means of trans- port existing need not be specially negatived in a declaration to re- cover insurance for loss of goods. — lb. 271 INTEREST : On judgment recorded before 1853, when and how recoverable. — Fleiger y. Taylor. 137 JOINDER : See Pleadings. Actions for money and land are so distinct in their nature, that they cannot be consolidated. — Kerr v. Nelson. 67 Action against seven defendants as part owners. Verdict against two only sustained under Pract. Act, s. 40, the evidence of ownership of \ the remaining defendants being insufficient to satisfy the jury. — Cobb v. Turner et. al. 332 JUDGES' MINUTES: See new trial. JUDGMENT: The Court will restore a judgment discharged without consideration, upon false pretences of the defendant, upon an affidavit ; a balance being due. — Poncia v. McDonnell. 55 No claim for interest arises upon a judgment recorded before 1853 un- til lands are actually sold«under execution, and there is a surplus af- ter paying the debt and costs.— F/eiyicr v. Taylor. 187 iin>£x. 455 Faob. en sir- 195 «i- 195 248 n- DD be »g u- le y- V. to to e. 271 271 271 271 271 137 57 332 JvTbaitEsr (continued). Page A Jndee in siftning judgment does so without responsibility. The par- ty wno obtuns it takes it at his own risk. — Johnstone v. Brenan. The recording of a certificate of judgment gives the judgment creditor SBch a lien upon the land of the debtor as to enable him, without having issueo an execution, to proceed in Chancery to set aside a prior firaudulent conveyance of tne land. — Caldwell v. Kimman. JURISDICTION : of Probate Court, see Probate. A British Court has no jurisdiction to punish a foreigner for an of- fence committed on the high seas, in a foreign ship against a British subject — Queen v. Kinsman. When the plaintiff's demand has been reduced by cash payments be- low ten pounds in the city of Halifax, the ^layer's Court has exclu- sive jurisdiction. — Donovan v. Mahar. An enactment that proceedings of an inferior Court shall be final does not take away the jurisdiction of the Supreme Court to review their proceedings under writ of certiorari. — Barnaby v. Gardner. JURY: The Court will order a jury in a summary cause where there will be conflicting evidence. — Uniacke v. Gardner. In case of fraud. — Skinmr v. Lane. It is a matter for the discretion of the Court whether a defect in the jur3r lists or in the panel, which has not been made a ground of ob- jection at the trial, is a sufficient cause for setting aside a verdict. — Seaman v. Campbell. The omissions of the residences and occupations of the jurora, in the lista returned by the justices, held sufficient ground for quashing in- dictments found by the grand jury, and for setting aside special jury panels in causes not tried, but not sufficient to disturb verdicts in causes where the objection was not made at the trial, unless it be shown that injustice has been done. — lb. Queen v. Behjea. — S. P. Queen v. Murphy. — S. P. The Court will grant a special jury after an ineffectual trial, upon cause shewn. — Stalker v. Wier. JUSTICE OF THE PEACE : A magistrate is entitied to six days notice of a motion for a criminal information against him for violation of his duty. — Queen v. Heustis. The motion must be made in sufficient time to enable the party accus- ed to answer the same term. lb. 177 398 62 01 306 59 183 94 94 220 158 107 101 137 101 LANDLORD AND TENANT : Payment of rent quarterly is not conclusive evidence of a yearly tenancy. — Halliburton v. MoUoy. 246 LEVY: If a sheriff has improperly omitted to levy, the remedy is by action ^gainst him and not by nile to amend his return. — Creighton v. Daniels. 304 LICENSE, LETTER OF : Held void, only one creditor having executed — Moony v. Bossom. 254 LIMITATIONS, STATUTE OF: As to real estate see Possession. The statute of limitations should not be so construed as to protect or be a means of fraud. — Forsyth v. Griffin. 241 The plaintiff exchanged mud flats not capable of actual possession, for seoge banks bearing grass, into which plaintiff entered and retained possesrion for twenty-five years, no conveyances being executed on fr Ai6 INDEX. 241 241 258 Limitations (continued). Paok either side, and subeequently as the mud flats became productive by accretion, the plain tin entered and took the grass from them also, at the same time claiming title by possession to the sedge banks. — lb. Held that if Uie exchange was completed by a mutual surrender of the lands, there was mutual adverse possession, but if not the parties held pirmissively from each other, and the statute of limitations could not apply. Held also that the fact of such surrender being made is a question for the jury. — Jb. Proof of a promise to pay " as soon as possible" is not sufficient to take a case out of the statute of limitations without proof of defendant's ability to pay. — DUsentiente, Haliburton, J. — Murdoch v. Pitts. Almonv.HiU(n).—S.P. 261 The acknowledgment in reference to a debt due by the firm, of one partner, after tfie partnership has been dissolved, is sufficient to pre- vent the operation of the statute of limitations. — Bank of Nova Sco- tia V. UaUourlon. 350 LUNATIC: See Insane. MINES AND MINERALS : Asphaltnm is included in the exception in certain royal grants in the province of New Brunswick of " all coals, and also all gold, silver and other mines and minerals." The words "mines and minerals" in the exception are to be understood in their popular add ordinary', and not in their scientific meaning. Trover will lie in this province for nunerals which have been taken from a mine, out of the province, and removed here. — Gesner v. Gas Company. MISDIRECTION: See New Trial. MONEY HAD AND RECEIVED : Evidence to recover back when McDonald t. McDomld. 72 paid, under void agreement. — 41 MORTGAGE : A widow is entitled to dower in her husband's equity of redemption in a case where she was a party to a mortgage for the purpose of re- leasing her dower, under the provincial statute, and her claim will be protected by the Court of Chancerj- in distributing the surplus left after foreclosure and sale of the mortgaged premises, and after payment of the incumbrances to which she was a party. — Collins v. Story (n). MOTIONS : 160 The Court will not hear motions upon days bot down for arguments, except in special cii-cumstances. — Scott v. Angus. 1 8.^ After tne first day of term gentlemen of the bar are not expected to be in attendance in court unless they have particular businesf. — Sk-inner V. Lane. ' 247 NEW TRIAL: A new trial will seldom be granted xipon t1 c gi-ound of the verdict be- ing against evidence, where the verdict nas any evidence to support it, although the evidence strongly preponderates against it, provided the Judge who tries the cause is not oissatisfied with the finding of the jury. — Fraser v. Cameron. • 189 The Comi will not, on a motion to set aside a verdict, give effect loan INDEX. 457 Pagk. ctive also, -lb. 241 fthe ,rtic« dons leing 241 take ant'i* tits. 258 S.P. 261 one prc- Sco- 350 72 41 150 183 247 ng of 189 New Tbial (continued). Page. objection not taken at the trial, and trhich might have been remedied had it been then taken. — Halliburton ▼. MoUoy. 246 GUlia V. Camr*eH.— 5. P. 48 granted on Jie ground of misdirection. — Dill v. Wilkins. 113 When the Judge has misdirected the iur^ upon a point of law, and such misdirection mav have misled the jiuy, the verdict will be set aside, and a new trial granted. — lb. lis granted on account of short notice of trial. — Drummond v. Camit. 268 granted when the verdict improperly negatived fraud, contrary to the evidence. — Falconer \. Sawyer. 277 The Court will not allow counsel to move for a new trial upon leave granted on circuit, except on Judges' minutes of trial. — Copp v. Etter. 304 In case of verdict for plaintiff Court will grant rule nisi for a new trial, if the Judge who tried the cause considers that a rule ought to pass, but not a rule nisi for a nonsuit, except by consent. — lb. 304 Counsel moving on his own notes of a trial, in the absence of the Judge's minutes, must verify them by affidavit. — Stephenson v. Dul- hanty. 339 The Court will not send a special verdict back to a jury, to decide rn a presumption which they would not be justified in finding. — hibold v. Blots. 307 Improper reception of testimony will not invalidate a verdict for plain- tiff, when there is sufficient additional evidence to sustain it. — Rus- sell v. Marshall. 330 It is no ground for setting aside a verdict that the Judge gave his opi- nion on the facts to the jury and recommended them to give small damages. — French v. Wallace. 337 Ejectment tried by order of Chancery, in order to obtain evidence to be adjudicated on in that Court. Verdict taken by consent, sub- ject to the opinion of the Supreme Court. The Court declined to consider the question otherwise than in acccordance with the com- mon law practice, and therefore refused to decide upon matters of fact, which should have been, but were not found by the jury ; and set aside the verdict, but mthout costs. — Etter v. Copp. ' oi4 '\yhen there is no objection to a verdict except that it is found, in the opinion of the Court, against the weight ofevidence, the Court ought to exercise not merely a cautious, but a strict and sure judgment be- fore th^ysend the cause to a second jury. — Bank of Nova Seotia v. Haliburton. 360 NON PROS: The Court will not grant a rule for non pros for not proceeding to trial, even after a peremptory undertaking to try, entered into by plaf.n- tiff the previous term, where there is a serious intention to try the cause on the part of the plaintiff. — O'Connor v. Fisher. 269 In appeal causes, see Summary cause. NONSUIT: Refused after trial except bv consent. — Copp v. Etter. 304 Etter V. Copp.—S. P. 344 NOTICE OF TRIAL : The time for serving notice of trial, not being fixed by the new prac- tice act, is to be regulated by the practice of the superior Courts of common law in England, (but see subsequent act 1845). — Drumir.ond V. Carritt. 268 ^Vhere short notice of trial was given, and verdict taken for plaintiff subject to the objection, the verdict was set aside. lb. 268 NOTICE TO APPEAR : Need not be sigued by attpmey.— 5eW« t, Acfierly, 157 ir 408 INDEX. NUISANCE : Paob. Rule nisi for precept to abate. — Queen v. Hendry. 105 OBJECTIONS : The Court will not, in the argument of a motion to set aside a verdict, entertain an objection which was not taken at the trial, where the ob- jection might have been remedied, if taken at the trial. — Gillii v. Campbell. 4(J Halliburton v. Molloy.—S. P. 240 OVERHOLDING: The plaintiff not having entered the cause on the summary docket, nor commenced an action of ejectment, the defendant's recognizance discharged. — Bauer v. Guiin. 337 PAROL EVIDENCE : See Evidence. PARTITION : The common law writ of partition extends to joint tenants, and ten- ants in common, and the expression "at the common law" inch. 189, sec. 1 , of the Revised Statutes refers to the existing state of the law in this province before the passing of the revised statutes. — Doane V. McKenny. 328 PARTNERSraP: A communion of the profit and loss of a business between two parties constitutes a partnership between them as to that business. — Bank of Nova Scotia v. Halibuiion. 35U Acknowledgment by partner, see Limitations. PAYMENT INTO COUR't : The Court may allow a plea of payment into Court to be withdrawn when pleaded under a mistake.— iVe^a^ v. Hamilton. 153 PLEADING : Declaration for several trespasses, including the placing of rubbish on the soil. Plea, right of way. Held, on demurrer, that the plea should have stated the pai'ticular trespasses intended to be justined. —Tobin V. aXeil. 60 A pleading must be served, as well as filed, before the prothonotary is instructed to mark a default for want of service. — Johnston v. Ma- theson. 92 When too voluminous ordered to be amended. — Woodworth v. Withrow. 105 In granting a rule to withdraw a pleading, the Court may impose rea- sonable terms. — McKay v. Hamilton. 153 A plea that " the defendant is not indebted as alleged," is irreenlar under the new Practice Act, which requires the particular derence on which a party relies to be pleaded. — Brown v. Wallace. 264 Action on policy of insurance covering voyage from Halifax to Per- nambuco and a market, vessel put into Baroadoes, as plaintiff alleg- ed, to repair damages. Plea of deviation, that vessel put into Bar- badoes not for the purpose alleged, but to seek a market, and aiter- wards sailed from Barbadoes to Trinidad, and thence to St. Thomas, in search of a market. Held that the plea was bad for duplicity, as disclosing several distinct acts of deviation. — Fairbanks v. Union Ma- rine Insurance Company. 271 A party who prefers to answer a plea to which he might have demurr- ed for argumentativeness or duplicity, is bound to answer every ma- terial allegation contained in the plea. — lb. 271 The omission of a co-tenant in partition is a fatal defect, although not pleaded in abatement. — Doane v. McKenny. 328 It is sufficient to specify the defamatory sense of libellous words iu the form of an inuendo wthout other averments. — Roberts v. Patillo. 367 The plaintiff took issue upon a plea Tvhich rran held to disclose a d«> I nsimx. 469 Paob. 105 t, V. ?. 240 337 328 350 rn 153 60 P- 92 ). 105 r 153 264 271 271 328 367 Fl,BAl>mo (continued). Paoc. fence insufficient in substance. Verdict for defendant set aside, and a repleader awarded. — Melancon v. Comeau. 373 The declaration lud the words used as accusing the plaintiff of cheat- ing. Held to be sufficient to sustain a verdict for plaintiff, although the words used amounted in reality to a charge of forgery. — Hall v. Carty. 379 A defendant pleadine before the expiration of the period allowed by law, will not entitle plaintiff to place the cause on the trial docket withiu the period allowed the defendant to plead. — Hutchinson v. WUham. 387 Pleas clearly shewn by affidavit to be false will be set aside as being vexatious. — Emmes v. Taylor. 444 POSSESSION: Demand of, see Demand. Where a party claiming laud in ejectment does not derive his title from the Crown, he is bound to trace it to some one who has been in possession of the land. — Cunard v. Irvine. 31 A party claiming wild lands under a deed, and having actual posses- sion of a part, has a sufficient constructive possession of the whole land described in his deed, to bring him witnin the statute of limita- tions.— ift. 31 The running of one of the side lines of a large tract to which the plain- tiff had no tide, but of a part of which he was in actual occupation, held a sufficient act of possession to enable a jurv, with other evi- dence, to infer a constructive possession of the whole tract.— PA«- lan V. Phelati 184 The occupation oy a son of a part of his father's land will be deemed, in the absence of evidence to the contrary, as a permissive occupa- tion.— 76. 184 Evidence of mere prior possession in the plaintiff affords a sufficient presumption of title in him, to enable him to recover in ejectment against a wronw doer. — Smith v. McKenzie. 228 Possession by defendant of a part of the land of his father-in-law, will be presumed to be a permissive occupancy, unless there be very strong evidence to shew an adverse possession. — lb. 228 In case of exchange of lands, see Limitations. The adverse possession of a widow, cestui que trust, as against the trus- tees, will enure for the benefit of her children, being also cestuia que trust, and cannot be set up against t^eir tide. — Archibald v. Blois. 307 A party who enters upon and takes possession of land to which he has a right, may maintam trespass against a person who, being in posses- sion at the time of entry, wrongfully continues upon the land. — McDonald v. Sutherland, 363 PRINCIPAL AND AGENT: See Transfer. A foreign principal is presumptively entitied to sue and be sued upon contracts made by Ins agent here, although the name of the princi- pal was not disclosed by the agent at the time of making the con- tract. — Hardy v. Fairbanks. 432 PROBATE COURTS: Personal pr''' -^•-- •-• - "-"-■ — . . — — .. . —_..._-__ SmppiNG AND Seamen (continued). Page. Necessaries supplied to a yessel fitting for sea on the order of one of several part owners. Held that the other owners are liable, unlesn they shew that an exclusive credit was given to the part owner or- dering the goods. — Cobb v. Turner. 332 The owner of a wrecked vessel is not bound to defray the i-eturn pas- sage of the seamen. — Melancon y. Comeau. 373 The transfer of the materials of a wrecked vessel by the master for that purpose: held not to change the property in the goods. — lb. 373 In shipping articles, the following is a sumciently precise descriptipn of the voyage : " From London to any port in Spain, thence to New- foundland and British North America, United States, West Indies, Mediterranean, and Continent of Europe, backwards and forwards, in the prosecution of the Newfoundland trade, aad back to the final port of discharse in the United Kingdom, such voyage not to exceed two years." — Dale v. ship " Velocity." 3;>0 No seaman who is employed for a voyage or engagement which is to terminate in the United Kingdom can sue in a Colonial Vice Ad- miralty Court for his wages, unless discharged as directed by the General Merchant Seaman's Act. — lb. 390 The Admiralty Court has no jurisdiction in a suit to recover seaman's wages, unless the sum claimed amount to at least fifty pounds ster- ling. — 7ft. 390 SHERIFF: See Levy and Execution. SLANDER AND LIBEL : See Pleadings and Forgery. Quere. Whether a charge of a pross private fraud will sustain an ac- tion for slander, without specicJ Jamage. — Hall v. Carty. 879 STATUTES : The statutes 33 H. 8, c. 39, and 13 Eliz., c. 4, which gave the Crown a lien upon the real estate of certain public officers as a security for the fulfilment of their bonds, are not in force in this province.— Uniacke v. Dickson. 287 The revenue laws of England are not applicable her^, except in so far as our legislature has seen fit to adopt their provisions. — lb. 287 The whole of the English cammon law will be recognized as in force here, excepting such as are obviously inconsistent with the circum- - stances of the country; while on the other hand, none of the statute law will be received, except such parte as are obviously applicable and necessary. — lb. 287 The increasing lapse of time since the settlement of the province should render the Courts cautious in recognizing English statutes which have not been previously introduced. — lb. 69 380 STAY OF PROCEEDINGS: A stay ofprocecdings by rule for security of coc to, operates against the plamtiiTonly. — licDougall v. McDonald. A rule staving proceedings until the parties had mutually delivered plans will not prevent defendant, who has complied with the rule, for moving for costs of the term against plaintiff for not proceeding to trial, the plaintiff not having complied with the rule. — O'Connor v. Fisher. STET PHOCESSUS: The insolvency and permanent absence of the defendant is a sufficient ^und for a rule to enable the plaintiff to enter a stet processus. — Heffernan v. Lacy. SUBMISSION: See Award, 287 91 269 267 A41 IKDEX. SUMMARY CAUSE: Page. See Overholding. A ■ummary cause which has been referred to a jury cannot be con- tinued by plaintiff without special motion. — Uniacke v. Oardner. b^ Default confirmed against plaintiff for not appearing when cause call- ed for trial. — Nugent v. Croskill. 151 When jury granted, see Jurg. SUMMONS : See Writ. TAXATION: of witnesses tees, when not required by witness, not allowed.— PriMf V. R'Msell. 58 Retazation will not be granted by the Court without previous applica- tion to the Judge who taxed the bill.— Barnoft^ v. Gardner. 107 Tupper V. Wright.— S. P. 803 TENANCY: See landlord and tenant. TITLE : See Deed. ' presumption of, from prior possession, see possession. Where a party claiming land in ejectment does not derive his title from the crown he is bound to trace it to some one who has been in pos- session of the land. — Canard v. Irvine. 81 Where the plaintiff relied upon a documentary tiUe, and failed in tracing it to the crowf ana gave doubtful evidence only as to the possesssion of one of the prior owners, held that this evidence ought to have been left to the jury. — Shey v. Chisholm. TRANSFER: of wrecked property by master, see Stalker v. Wier. Alelanron v. Comeau. TRESPASS: Declaration for several trespasses, including the placing of rubbish on the soil. Plea, right of way. Held on demurrer that the plea should hvre stated the particular trespass intended to be justified. — Tobin V. O'Neil. TRIAL: See right to begin. will be set down for a particular day upon special grounds. — Stalker v. Wier. Phailen v. Phailen. — S. P. notice of, see notice of tried. A defendant pleading before the expiration of the period allowed by law, will not cntitie plaintiff to place the cause on the trial docket within the period allowed the defendant to plead. — Hutchinson v. Withcm. TROVER: Trover will lie in this province for minerals which have been taken from a mine, out of the province, and removed here — Gesner v. Gas Company. Wrecked property abandoned to underwriters, and assigned to them by indorsement of the bill of lading by the owner of the goods, may, notwithstanding, be recovered in an action of trover, brought against parties illegally in possession, in the name of the owner of the goods, for the benefit of the underwriters. — Stalker v. Wier. It is not necessary for a plaintiff in trover to have a inght of possession in the goods at the time of action brought, provided he nad such right ofpossession at the time the cause of action accrued. — lb. 52 373 60 107 112 3B7 248 248 INDESt 4^8 M) 151 58 107 803 31 52 248 373 60 3B7 248 248 Trovee (continued). Page. Goods assigned in transitu, by indorsemeiU of a bill ol' lading, may be revetted in the assignor by cancelling the indorsement ^n the billot' lading.— 7/». 248 TRUST: See assignm(^n>- The Coiirt will not direct a jury to presume the acceptance of a trust, created by devise, when there has oeen fifty years adverse possession, as against the trustees, there being no evidence of such acceptance, and all the facts being opposed to such presumption. — Archibald v. Bloii. 307 Adverse possession of cestui qu« trust. — lb. 307 A tnist once accepted will not be presumed to have been surrendered during the lift- of a parly, previoiif to Avhosc death the trusts cannot be fulfilled— /i/*i''rtf \!Di:nm. 326 TRUSTEE : See Assi(jn>iieiitK and Insolvent Debtors. UNITED STATES DECISIONS: See decided cases. USAGE: Evidence of a usage contrary to a jettleil principle of law is not admii- sable. — Hardy v. Fairhanks, 432 USES, STATUTE OF: Efl'ect of registry of deeds. Registry of a deed is not e sold is violated if the arti- cles, owing to a secret defect existing at the time of sale, afterwards become deterioratcfl iu value. — //a/v///v. Fairbanks. 432 The sale of No. 1 sahuon without express warranty, amounts to a war- ranty that the iish U m the coiidition prescribed by law for fish of that'brand. Jb. ' 432 WITNESS : when incompetent under Lord Denmau's Act. — Johnstone v. Brcnun. 14 WITNESSES FEES: Witnesses' fees cannot be taxed when tlic witnesses do not requii-e them to be paid. — Priest v. liusscll. 68 WRIT: See amendment and had. A second original capias may issue upon the same affidavit. — Holland V. Bovyer. 46 AVhere the original and alias writs arc not sufficiently connected, the Court will reject the alias clause as surplusage, and sustain the writ as a second original. — lb. 45 Quere. Whether before the ucw piartice act, the rule was imperative that a term must not intervene between an original and alias writ. — i*. 464 INDEX Wbit (continued). irregular if dated on a different day from the actual date of issuing.— &Usw. Ackerly. lo7 Qvere. Whether writs of attachment and cummons against abscond- ing debtors should be made if>tnrnable imdcr Pract. Act, sec. 10, or under Act 1854, ih. 7, sec, 1. — Staples v. Taylor. 320 Creif/hton v. DnnMli!. Ml Writs issued and oerveri in Pictoii and returnable in Cape Breton should be made returnable in thirty days after service ; but the de- fect will be amended upon payment of cost.i. — Gerroir v. Dickion. l4o A writ prima facie regular will not be net aside for an irregularity in the rf turn day appearing upon affidavit — Cntlin v. Cook. 44 J Writs of replevin should be mad« returnable under the Act of 185 1, ch.7,and not on a special return day.— Per Bus?, J. -~ Johnson v. Ross, U6 r