.. <^ ^ #3 m ^/l r / 5% "'S /A em .>: ^ W op, Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m? ,\ qv :\ \ '% V % >A 6^ % ^# S. i^ ^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadiafi Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain rhe best original copy available for filming. Features of this copy which may be bibliographicaily uniqua, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D n n D Coloured cover':/ Couverture de coulaur Covers damaged/ Couverture endommag^a Covers restored and/or laminated/ Couverture restaurde ot/ou pelliculde Cover title missing^ Le titre de couverv. e manque Coloured maps/ Cartes gAographiques en coulaur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relii avec d'autces documents Tight binding may cause shadows or distortion along interior margin/ Lareliure serree psut causer de I'ombre ou de la distorsion le long de la marge interieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II 3e peut que certaines pages blanches ajouties lors dune restauration apparaissent dans ;9 texte. mais, lorsquA cela 6tait possible, ces pages n'ont pas iti film^es. Additional comments:/ Commentaires suppl^mentaires; L'Institut a microfilmd le meilleur exemplaire qu'il lui a ete possible de se procurer. Les details de cet exempluire qui sont peut-dtre uniques du point de vje bibliographique, qui peuvent modifier une image reproduite. ou qui peuvent exiger une modification dans la m^thode normale de filmage sont indiqu^s ci-dessous. I I Coloured pages/ Pages de couleur Pages damaged/ Pages endommagees □ Pages restored and/or laminated/ Pages restaurees et/ou pelliculees r~l( Pages discoloured, avained or foxed/ hZJ. Pages ddcolordes, tachet^es ou piqui piquees Pages detached/ Pages d^tachees r~^ Showthrough/ Transparence □ Quality of print Qualite inigale varies/ nigale de I'impression □ Includes supplementary material/ Comprend du ma;6riel supplementaire □ Only edixion available/ Seule 6diti n iition disponible Pages wholly or oartially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata. une pelure, etc.. cnt *t6 film^es i nouveau de facon a obtanir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiqu^ ci-dessous. 10X 14X 18X 22X 26X 30X 12X y 16X 20X 24X 28X 32X The copy filmed here has been reproduced thanks to the generosity of: The Nova Scotia Legislative Library L'exemplaire filmA fut reproduit grtse A la g6n6rosit6 de: The Nova Scotia Legislative Library The images appearing here are ^'^s best quality possible considering the condition and Lgibility of the original copy and in keeping with the filming contract specifications. O'iginal copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or iliustrpted impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les images suivantes ont 6t6 reproduites avcc le plus grand soin, cumpte tenu de la condition et de la nettetd de l'exemplaire film«, et en conformity avec les conditions du contrat de fimage. Les exemplaires originaux dont la couverture un papier est imprimis sont filmis en commen9ant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'iltustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont filmds en commenpant par la premidre page qui comporte une empreinte d'impression ou d'iliustration et en terminant par lei dernidre page qui comporte une telle empreinte. The iast recorded frame on each microfiche shall contain the symbol — »^ (meaning "CON- TINUED "), o' the symbol V (meaning "END"), whichever applies. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — »► signifie "A SUIVRE ", le symbole V signifie "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 corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diffirents. Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite. et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants iliustrent la methods. 1 2 3 1 2 3 4 5 6 X BE> LAW REPORTS : CONTAINING f ^ DECISIONS OF THE BENCH OF THE SUPREME COURT I IN NOVA-SCOTIA, i. BETWEEN THE YEARS 1834 AND 1841. ^ *'t. ¥ ^KV-" / /■ HALIFAX, N. S. PBINTBD BY RICHARD NUaE!-!!, 1853. .«*A 6f Ca O'. v\\ . ,<\ b-v^l -X f ^ BI s 13 tl vi sc hi th e> s\ th cc 'h ^ To the Honorable Brenton Halliburton, Chip/ Justice of the Supreme Court for the Province of Nova Scotia. Sir, — In dedicating to you these reports, 1 perform a duty which is as agreeable -to rayself as to the whole profession to which I have the horor to belong. For half a century the public of this Pro- vince has had the inestimable advantage of your sound common sense and legal learning in determiniLg litigated rights. From the high estimation in which your decisions have ever been held by the profession, ii is a source of great regret that so few are in existence in a tangible form. The fear that even those might be B 1 swept away in the Lethean stream, and the juridical learning of yourself and the other Judges who have illustrated the Bench of Nova Scotia, become merely traditional, has induced me to attempt the present compilation of judgments, delivered during a long course of years. I d,m, Sir, With the highest respect, Your most obedient, Humble servant, JAMES THOMSON. Halifax, December, 1863. Ml !■ I < PREFACE. < Every man owes as a duty to his profession, that he use his best exertions .t leave it better tha.- he found it. Even where talent is wanting, industry may do much to catch the rays which genius shads in its meteor-like course, and stamping them in a book, pre- serve tnem for futurity. The stores of knowledge are increased, and the powers of original thinkers no longer mis-spent in working out j)roblems that g'^nius has already solved. The humblest mem- ber of a profpssic; may thus contMbi*t<- to aid the progress of science by setting down tna. '.vhich b- alroacly been the subject of thought. These views have led iie, in pu.-.u-jg ^^^^ ^^^^ of duty which nature had pointed out, to colloct and aTringc th^ inore im^^rtant decisions of our Supreme O.- irt. O.'o the pi fesaic.i, J felt rach \ reports must be exceedingly valuable, slnoe they rend'^r doubtful 'points certain, and enable its member's to ad/ise with promptness and accuracy. To the pubhc, it is a boon of still more impor- tance. It prevents the recurrence of suits on similar questions ; for few lawyers will be found who would advise clients to prosecute or defend a suit in opp< ion to a settled derision of the court. Thus, by the publication of faithful reports, much of the ill feeling engendered by long and harrassing litigation— of the amount ex- pended in prosecuting and defending suits— of the time of counsel, parties, Avitnesses, jury, and court, would be saved to the couhtry. f 1 1 * ♦ H / ir LAW EiEPORTS. h V MASON vs. CHAMBERLAIN. Easter Term, 1834. Whire an Auctlonesr received an article with instructiona not to geU it under a certain price, hclil that it he shall sell it for a less sum, he was liable to make good thti loss. Tliis was an appeal from the Comrair'sioners' Court, whore judg- ment had been given for the plaintiff. The plaintiff had sent a table to the defendant— an auctioneer — to be sold at auction, with direc- tions not to let it go under 40s. The defendant received the table, with the directions, and sold it for a less sum. He refused to nialte good the deficiency upon the ground that it would have been a ftaud, if. upon the sale, the auctioneer had bid, or provided a bidder for the owner. Hill, J. — This, like the case of Bexwell v. Chiistie, in Cow- per, (p. 895,) must be viewed as an action on the case against an auctione'^r for carelessly and negligently selling at auction the pro- perty of the plaintiff for a less sum than he was directed, and under- took to sell it for. The case of Bexwell v. Christie seems to have been decided on the broad ground that the owner of goods sent to auction cannot employ a person to make a bid for him, unless in the conditions of sale he expressly reserves a bid for himself The doctrine, however, to the extent laid down in that case, has not been approved of in later cases, and indeed has been overruled in ma.r\j cases in Chancery; and by those to Avhicli we have been re- ferred, it appears to be now put beyond doubt that an owner of goods may employ a person to bid for him with a view to pi'event his iioods being sold at an undervalue ; and in doing this there is no offence, as it strikes my mind, against the laws of morality, fair dealing and good faith. In Braraby & al. [3 Ves. 620,] the ' 11 ^ LAW REPORTS. owner of property sold at auction employed a person privately to bid for Imn up to a certain sum ; the property liowe. -or, was sold for a ^'rcMter pr,co to the defendant, who refused to complete his nuchase on the ground of the pluintifT's havin;,' em,,iovJd a per- on pnvntcly to b,d f<,r hiiu. The Aiaster of tlfc Koll.: however, decreed a performanco of the contract. In the case of Connoll y v. 1 arsons (.} \ os, (.L\>,] an objection was raised to the completion ot ho purchase ot fm estate at auction, because the phLUtitT had employed persons to bid at the auction for the purpose if advancing h.pncc above its fair value: but the Lord Chancellor did not hold It any ejection to a sale by auction, that a person had be^n employed by the vendor to Ik] for him, although he had not f^ivcn not.ce. I lie same doctrine is held in Sn.ith v. Claiko. fo Ves. 477.J Pi-om alKhe cases and boo]|i> McLean v.s. ja coes. • Wher. tho .^,r of a lot s-Id a part, ana in the deed to the grantee described the dividin,, line tT Zr '" ^7'--"V'"""°" '•■'■ ''""""" ■' "'" '^'^ •^"•^-^ ^f "^^ «- -- P-nted ou on Wc (ii.nui,,...,!, tl..m.|h shown not to l.^. i,!,.--.a,e ,,.9 UiHi i„ the ,ifc,l. This was an action of trespass tried bef<.re the Chief -Justice at Liverpool. \'cr.lict for plaintiiT: Kule Nisi to set aside verdict. The t.espa^s complained of wa.s committed on land covered with water. The description in the deed of the land was inaccurate. In the deed, which M-as made in LSiS to phu'ntiff s father, one oi' the lines of the lot was to commence at the street and run N. 27d 30m. W. to die harbor. The probable turning point of a line run- / LAW REFORTS. *>«* ning in such a direction •'■us poiiiteil out by a surveyor, and acaui- esced in tor 16 yeors by Mrs. llnmilton, the qrantoo, who sold to the defendant the other portion of the lot, of which the line just mentioned formed the dividinjj line. If the line had been run ac- curately by the compass, the line would have tcrniinated ai a dif- ferent point. The trespass complained of was committed on land covered with water, situate between the cour.^e of the line acqui- esced in by the original grantee and the course of a line running N. 27d. 80m. W. Chief Jusiict;.— The question in tin 3 case is, whether boun- daries can be settk'd by agreement. Were we to pursue in this country the precision demanded by strict legal pvineiple, it would be attended with most mischievou.s results. It is rineiples advo- cated by the I^olicitur General, for it is quite clear that land cannot be conveyed by parol The posiiession of the pluintiff's' father was a jjcsse.ssion of the ivhole lot. UxiACKE, J. — The case was left open upon the acqaiesence of Mrs. Hamilton. It would bo a very dangerous principle to permit boundaries to be disturbed after 'such an ac<|uisescence. The agreement of the parties to a particular liiu; is the most dern'rable mode of settling boundaries.— The ac(juiescence explains the deed, IIiLL, J. — As this pu-^enls itsplf to my mind, the whole ot the argument addressed to the Court is beside the real point Autho- rities have been cited to show that the statute of Frauds requires that Irechold interest in lands should l)e conveyed in writing by deed; but surely that position requires no argument. It is plain that no IVtehold interest in the premises purchased from Mrs. Hamilton could have passed to McLean, the father of the plaintifl", unless by deed in writing, pursuant to the statute ; but that is not the case heie. for a deed has passed, executed with the usual formalities, and the on\' question is, as to the boundaries or the dividing line between the lot of the plaintiff and the adjoi*^- ing lot. One way of transferring property is by deed or matter in pa^s, an assurance transacted between two or more private persons in pais, in the country, that is, upon the spot to be transferred. It is a writing signed and sealed by the parties in evidence of some prior agreement. The land does not pasa by the words of the deed, and It is therefore only evidence of the will and direction of the parties ; and a preceding or accompanying ceremony (as livery of seisin, ha i 8 LAW REPORTB, &c.) transfers the land. Now it appears', in this case, that in the 2oth July, 1818, the father of the plaintiffs purchased the lot, the subject of the present dispute, from Mrs. IJaniilt.n, who then owned the adjoining lot, both then forming one entire and undivi- dt>d parcel of land. —that a deed of the jn-cmises ^vas hen executed — that a fence dividing the two lots was put up by McLean, the plaintiil"s father, assisted by a surveyor,— that Mrs. Hamilton, though not actually directing this fence and its line or course. knew of it and saw it,— that her sons, afterwards, assisted McLean, the iatlicr, in repairing the fence put up on this line, as traced by the surveyor and ^McLean, and made no objections Avhatever; and, in fact, that in the lifetime of the ancestor of the plaintilf, and for a period of 16 years, the line upon which the fence stood was held by all parties as the true dividing line between them. 2vow I con- sider the proof in this case, the jury having negatived fraud, to amount to this,— that McLean and Mrs. Hamilton having bar- gained for the puichar;e, by the foimer, of a lot of land, tht>^latter executes a deed of what was intended to be conveyed, and with that deed in her hand, goes in upon the pi oj.erty, makes survey of seisin, and with the assistance of a surveyor who, wo niust t;>.ke it, ran the line, as he thought, accoidinp; to the deeds, points out tlie bounds of the propeity sold and the courses of the lines. What, then, can so well e:>;plain the intention and wiJl of the pai'ties as their acts at the very time, and their sub.3equent acts for a period of 16 years, accompanied by a quiet and uninterrupted eiijojmicnt. It is asked, however, would you allow parol testimony to explain or contradict the Avovds of a deed, when the words themselves are plain and unequivocal. No ! and if Mrs. Hamilton had by a deed conveyed a house and premises in Lunenburg, the Court could not, perhaps, consistently with tiie authorities, have allowtd paid tes- timony to shew that tlie hou.^e intended to be conveyed was situate at Liverpool. Jlut will it be said that if by accident, mistake, or under an erroneous im.pres.«ioii, the parties, in tracing a hue. step a lit ie out of its true and accurate direction, and so establish and agree to it, that either can revoke what has been done under such agreement, after such a long acquiescence as in the pre.sent ease 7 I think not. From the phm. however, accompanying the report, it appears that, as described in the deed, the line waste commence at the .-itreet, and run to the harbor north 27d. SOui. Avest, so that where that course would place the line was to be ascertained by the parties afterwards. The line of McLean's lot was not to run alongside of any known, .established, or natural boundary, but was to be ascertained by a surveyor with the aid of the compass. A surveyor at the time is called, who points out, as we must suppose, LAW EEPORTS, 9 where the course by compass would lead •, it is acquiesced in and assented to ; and, after 16 year?, another survej'or is called, who, by his compass, and according to his measurement, ascertains that a north 27 80 west course would, by nice measurement, give ra- cher a diilorent line We may then have a third surveyor, who, by his compass, and his measurement, will determine both lines erroneous, and there will be no end of the matter. If it were ne- cessary, I would not, as at present advised, hesitate in saying, that it would be competent for the plaintiff in this ease to calf in parol testimony to shew what the parties meant by the course desciibed in the deed, what they both took as north 27 30 west ; but that is not necessary. We must here decide whether the acquiesence of Mrs. Hamilton for .so many years in the line claimed by the plain- tiff will bind her, though that m;iy not in oveiy minute particular agree witli the p)-eeise line as described in the deed; and as I know of no principle of law that picvents parties fron. consenting to a line as a boundary between tl^eir contiguous properties, I am of opinion that IShs. Hamilton was bound by tlie facts as reported, and that the directions were right. In a country like ours where deeds are often written by ignc^-nt and unlettered persons, where lines are often, fi'om various causes, not traced and run with the nicest accuracy, we must and ought to keep our eyes steadily fixed on possession, and especially if ibr a long period, and that too bv eon-jent and agreement, and under the very eyes of all parties con- cerned. If Mrs. Hamilton, thmi, was conc'kuted from disputing the line establi-.jicd, nmch more so the pr> sent defendant, who pur- chased from her after an adverse pi > -session against her of 16 yeai's. Now as to that piatiodiir part where the trespass was commit- ted, vrhich is land covered with water, and never fenced ofi" from tl e adjoining property. The line given by the deed was a straight one, and it -was to terniinate in the vrater beyond the point where the trespass was done : but the possession of a part is a possession of the whole. The case cited from Cro. Eliz. shews that the pos- session of the land was and is the possession of the water up to where the line termin-.ite.ri. and to be continued in the direction of the lino on the land. Eule discharged. N. B. — The principle established by this case was recognised and approved of in AVoodbury v. Gates and Davison v. Kinsman. In the latter case, decided in Easter Term, 1853, the court stated that the doctrine of conventional boundaries was settled in this Provii:Cv. 10 LAW REPORTS, GRANT vs. PROTECTION TNSCRANCE COMPANY. Easter Term, 1835. ' Th« Plaintiff may become nimsuit at any time bvrfore Verdict, This v?a9 an action on a Policy of Insurance. After the case had been gone through, the judge had charged the jury, and the jury had declared they had agreed, the plaintiiT's counsel asked to be nonsuited. The judge declined, and a verdict was taken. A rule was granted to set aside the verdict which had been taken and for leave to enter a nonsuit. Hill, J.— By the old doctrine, if a plaintiff commenced an ac- tion and did not appear at the return of the writ, or alter he had appeared, at the day of continuance he vas called or deraandabJe by the defendant, and was amerced by the court if not forthcoming for his f; lamor, for instituting a suit which he refused to pro- secuu^ ., <:o. Litt., 188 b, where the difference is shewn be- tween a nonsuit and retraxit^ we find it stated : " The diff.n-ence between a nmisivl and retraxit on tlie part of the demandant or pluintilf is this, — 'a nonsuit is ever upon a demand so made Avhen the demandant or plaintiff should appear, and he makes a defoult. A retraxit is ever where the clejnandant or plaintiff is present in court, (as regularly he is ever by intendment of law.) until a day is given over, unless it be where a verdict is to be given, for there he is demandable.' " At common law, upon every continuance or day given before tlie judgment, tlie plainti.f might have been nonsuited, and therefore before tlie stat. 2, Hen 4, even after ver- dict, if the court gave a day to bo ad\ ised| at that day the plainti.T was demandable and might have been nonsuited. The plaintiff, then, at common hnv, would be nonsuited wherever he was deman- dable ; and the passage from Coke shows he was demandable to hear a verdict. In the eascof 0"Mealy et al. v. Wilson, [1 Camp. 482,] where there was a, nonsuit at the request of the plaintiff", after the case had been g(Mie through, Lord Ellenborough says,' '' At any period Avhtn-e the plaintiff is demandable, if he does not ap- pear, there shall be judgment of nonsuit against him, unless there be something on the record inconsistent with such a judgment. Nothing of that sort appears in this case to prevent the plaintiff from abandoning his suit when he is called unon to hear the ver- dict." It has been said that a nonsuit can only be at the instance of the defendant, but the reason given rb.ows in what sense we are to i» law reports. 11 lad Understand that position in the books ; for, say thay, '' where the case at Nisi Prias was called, and thojury sworn, but no counsel, attornies, parties, or witnesses appeared on either side, the only way was to discharge the jury, for nobody had a right to demand the plaintiff but the defendant. The Judge could not order the plaintiff to be called." I think a nonsuit ought to be entered. Bliss, J. — Whatever may have been the origin and ground of the judgment of nonsuit, I am of opinion that wherever the plain- tiff is liable to have such a judgement entered against him ad- versely, he may obtain it for his benefit. What is a nonsuit 'I In the language of Lord E]lenborou<7h, in Paxton V. Popham. |10 East, 868,] '^a nonsuit, is a judgment against the plaintiff for not appearing on a day when he is deman- dable." By neglecting then to appear and prosecute his suit fur- ther, he puts a stop to all proceedings and thus entitles the defen- dant to the judgment of the court against him. But the act ^vbich so entitles him to the judgment proceeds wholly from the plaintiff, he can at all times, when he is demandable, by absenting himself^ bring about such a judgment. It is obvious, therefore" that the I k plaintiff can, when so disposed, ;ivail himself of this procecdino- for his own advantage, provided it is not inconsistent with his previous proceedings as they appear on the record. iN'or have suci! proceedings on the part of the plaintiff, for his own benefit, grown very lately into use : for we find as fin- back as the reign of Henry 4, a statute passed to restrain the right of the plaintiff. By this statute it was enacted, " that whereas upon verdict found before any Justice in assize of novel disseisin mort d'ancestor or any other action whatsoever, the parties before this time have been adjourned upon difficulty in law, upon the matter so found, it is ordained and est.-iblished, that [f Ihc verdict puss nfrainst the plamllfj\ the plaintiff shall not be nonsuit." Beforethis statute, then, it is evident that even after the verdict against him the plaintiff might become nonsuit by not appearino- at the day given him to hear tlie judgment of the court. And to thiseifect is the Lmguagc of Lord Coke, [Co. Litt , loO (b)] "at the couju'ion low, upon every continuance or day s.Jven o\-or before judgment, the plaintitf might have heen nonsuited, and therefore before the statute of lienry 4. after verdict given, if the court give a day to be advised, at tliat day the plaintiff was demandable. and therefore might have been tionsuited, which is noAv rcujedied by that statute." And even snice that statute, after a special verdict it was held that the plaintiff might still beeome nonsuit at the dies dafi/s ' I 12 LAW REPORTS. [Cro. Car , 575 J the reason of which seems to be, that until the judgment of the court was given no verdict had passed, since it depended on that judgment of the court what the verdict should he. The courts have, indeed, extended that statute beyond what tho words of it might appear to warrant; [Koat. v. Barker, 5 Mod., 208,] and where a phiintifl" Ifcing dissatisfied witli the amount of the verdict in his own favor, wished to become nonsuit ; which, • having a day given him to hear the judgment, he undoubtedly might°have done before the passing of the statute ; the court ra- fused him leave, and referred to this statute as if it clearly prohi- bited him. It passed agaii-.st him a^ to the higlier damages which ho wished to chum by a new trial, This position, that Vvlierever the plaintiff is demandable he may be nonsuited, except after the verdict, under the statute of Hen. 4 appears perfectly consistent with all the cases to be met with on the subject. AV here the proceedings are in the same term with the appcir/ancc, and the parties are already before the court, no day is iiiven over ; and they are, of course, not further demandable for any purpose. Such 'is the Ciise where the defendant offers to wage his law upon his first appearance, and there the phiintiff cannot be nonsuit. [Lilly Prac] So it is said that after demurrer, if the court give a day over, the plaintiff may be nonsuited because he is demacdable at chat day : but not after the demurrer has been argued, md the court are giving their judgment— although only two of the Judges have given their opinion—the plaintiff cannot be nonsuit; (1 t^id. «4, 2 Sid. 118, 3 Leon. 23,] because such a case has been likened to that where u verdict has pa^^sod. But as tlie above statute does not at all apply to such a case, I can scarcely think that a suffi- cient reason ; and a better one, it appears to me, may be given. The entry on the roll in such a case would state the demurrer, and the continuance over to the flies (c), n. (f).| the learned annotators remark, '' that in the old books discontinu- ance and nonsuit arc frcciucnily used as having the same imr)ort : but m mo.. k (J., 179. | ii was so followed m s()m(! cases withm his memory (and it may be added that such IS the common, ami I believe the invariable practice which prevails m this province,) for the officer of the court to ask the jury after they had considered of their verdict, if they had agreed in their verdict. If theyanswere dcdondaiit, before the verdict was given in, cannot preelude him fromtlie right to be called at the proper time when he should l)e «:alled, viz., when the jury are about to give their vcrdiet • for Ins answering then does not jmt him more comj)Ietely before the coi,i-t than he was previously to his ])eing so ealled. At the re- turn of the jury process, when a day is given fiini, unless he then niade <,elauU, lie is in court, and the very language of the postea. shows It : - Afterwards at that day, liefore the Justices aforesaid roiuo th, partU-^ aforesaid, ka. : and the Jinws of that Jury be- ing summoned also come, who to speak the truth of the matters vviMiin rontamcd, Inang eliosen, tried and sworn.'" Thus far it is Ihe same wheth(;r a. verdict is given or the plaintiff suffers a, non^ ^'"^" .1^. ^ ^^'^''^''''■' '■'■ l^'v^^" it J« unnecessary to repeat that the plaintiff IS present, because that already appears .m the record md therefore, altl ho 1)0 there, if 1 lough the practice has lieen to call him to see if ic answers the veri the bar to consider of their ver- dict, and after they had considered thereof, and ic^rcnl urrion^ themselves, they returned to the li.ir to give tlieir ver(h<^t in this behalf; upon which the said plaiutilf being solenndy cidled, comes not, nor docs he further i)rosecutc his bill against the defendant, therefore, ka. This form of the record, however, shows that it is for the pur pose of his being present at the delivery of the verdict that the plaintilV is called ; and therefore that the true and only time to call him is just when the verdict is to be pronounced, as indeed all the authorities state; and that this right to be called continues up to the last moment until the verdict has actually ])een pronounced, or as the statute of Henry, which has abridged the plaintiff's right, has stated until the verdict Ikis pfistted in the cause. The Itict, therefore, which appears in tlic case before us, that the jury state(i they had agreed upon their verdict, is wliat, accordiug to the prac- tice which did exi:it in Englund, and dues exist here, shouM b<; first ascertained by the officer before he calls the plaintiff; and is also precisely the language entered in the record Iteforc it is there stated that the plaintiff w;is called and made default. And it cini l)y no means therefore be used as an argument again!>t the right of the plaintiff to become nonsuit after the agreement of the jui-y had been so stnted by their foreman. Whether the jury do, in fact, withdraw from the l)ur or not, is in itself wholly immaterial, in my view of IIk.-, case. I am therefore of opinion that the plaintiff's counsel had a right to recjuire that his client should be called when he did, and that tiie court should >«ow direct a nonsuit t(» bo entered. Uule to cuter nonsuit made absolute, \he Chief Justice disseut- iiiir. WllEELOCK vs. MgKOWJS[. i^Jns/er Turiii, 1885. Whi'iH ()l.iiiilill cliumL'il uuitor a tii-aiil IVom tin; Crown, <;ontaiiiiii}; w coiidilion llial y\\-M\\. bh;\!l liL' void illiuiil not Hottlod on williiii a cortilin tiiiio, licl.l that a 3u1i;k<|iu'1iI Oraiil Inim llii.~ (I'rown for llu.' a.'iini' I'lciis, under whi<'li di'I'i'iirlmd, held, was void, Uif.-o liaviiis; bi'i'ii nu in<(Ufst ofoliico iirovioiu (o Llie issulii;.; of s\icli suliji'^Minoiil Oraiit. This was an action of trespass tlZTTrl'' "'^ ''. ^^''^o^^ted is, as to the operation of h" two grants tha have made their appearance upon the trial • the fsniif "f r. 'r^ ^^'f '!"' f'^^^^'^'^' P^«^'^'^'^ the latter gra title Thoi. ^'T'f''^] ''\ i-^"'«' no operation to give hin. a If?' Ji^^mhwotoxxad the possession to have been in the a.ntiff, ami upon testiniony ,|uite sufficient to warrant such find- |i.i,'. an.l they had the whole testimony before them. The case lies within a narrow compass, and may, I think, be disnosed of w.thout much difficulty after the able a^'ument it'has X' ne I fix '' f .^"1. J"^*'^^« '' t^'« S«ntle"^^^n who opened it in e P^tit of the plaintiff, to say he bore a creditable pari. JNow as regards the grants to whi.^h I have adverted how does he case stand On the 30th October, 1765. a grant of coTfi ma tion IS made by the Crown, to various persons, of certah w' deluding the locus and forming the township of Annapolis. The lan.ls were granted in common and nndivided, and each grantee yas enti led to a share or right. Steele being one of the ^.^ tees appears to have drawn lot 47 as his share e? light, or pari off' tion Th'ir' T'T^ 'Y ^"^ ^'' ^'''''''^ *''^ ^^-l^ole if his por- u A '^ contains the following words : ^ . "And for the more effectual accomplishment of His Maieslv's m tentions of settling the lands within this province^ the 'n n he eby made is upon this further condition, that if each and e^e "y the said grantees shall not settle either th(-rnselves or a familv Z^!^} i^7 "■"^""'^'' '^'''''! r ''^'^ ''''^' I'^oper stock .nd m. te lals for the improvement of the said lands, on or before the hist day e IS ovcmber which wiH be in the year 17(57 then th s ^'.•ant shall be null and void and of none effect to such of the s d gnmtees as shall fail to settle the premises in manner aforesaid .' >d withiu the time above limited. And th(> Covernor, .^^c nnv at his pleasure grant the rights and shares of all ;ind every of the gi-antees mentioned in this deed so failing, to any other lison or persons whatsoever in hke manner as if this grant b.d n„t been Grant dated 30th October, 1705. Grant to Francis Smith dated 1st July, 1803. LAW REPORTS. 17 The grant conveys a freehold upon condition that the grantee shall perforin such and such things. The very clause that 1 have read, and in which the defendant has placed so great reliance, con- tains the word comUthm. This is by no means like the cases where an estate is granted tinrantc vidNi/nlc, or (f/rm nisln d. i'ht to m-ant to bmith. I feel no difficult}^ in saying he had not. It cannot be denied that before the Crown can make a second grant the condition of the fiist grant must be unfulfilled ; and that that fact must be shewn by some testimony and before some tribu- nal, and at some time. If the Crown is not bound before the second grant to shew the conditions of the first broken, it mu.st shew it afterwards, or at the least afford the grantee an opportu- nity of shewing that really he kept his contract with the crown. The condition of the grant of 1765 is : "That if each ami every of the said grantees shall not settle either themselves or a family on each of tlieir respective shares or rights, with proper stock and materials for the improvement of the said lands, on or before the last day of November, 17<)7, then the grant shall be void." Now I can find no proof in the case that Steele di(v not settle either himself or a family, with proper stock and materials, on his share or right in this grant of the township ; nor do I find that he has had any opportunity afforded him of shewing, if that burthen lay on him, that he had performed the conditions. To strip this man of his freehold on presumptions, does not meet my view cf either the law or justice of the case. The verdict might be sustained on this consideration alone, and tlie argument sto])ped /// Um'nw. l>ut the giant of 1803 to Smith is a nullity ; no office has been found, and the King had not in 1803 reinvested 'linisolf with the title that passed out of him in 1 7(jo, and therefore not 1)cing in possession he could no more grant ihau an individual out of ])ossession could grant. I do not feel it necessary to advert to what has been urged on both sides as to the eon.structiou of grants from the (Jrown: they are to be construed according to the evident import of the words used, Jind those of the presci.'t grants arc too plain to be mistaken. Our decision in this case uiuy be wholly rested upon that of Doe on the several demises 18 LAW UEPOUTS. l^ll/..^.>th Hnll.n,, 12 Eaat., U",, i.n.l dtc.l at the bar. Tlie ere in.pusuion or title found, pretending that such were nol p,.."- ul.> cd by the act; and then enacts that grants so obtained should i)c NO!d. J he objec. was that the possession should be open to all a-innatits aganist the Ki,igtill the final decision of the right, and fiat no grant should be niade to obstruct any jterson who nii-ht traverse the in.,uest. Here, then, wo find a gra)it made to Snuth ni opposjtjou to both tliesc statutes. Not only has tlu; Kin.' .rmn- icd Ijelore the iniie 'imitcl after office found l,y the first s^iftute Hit he Ijas grarited without the formality of olllce. The sul>icct has hejm de|,i-ivcd <.f this freehold without any notice whatever i icsc two tstaiutes are liighly ],cneficial, and cannot be too closely ajibeird to Ii is duo to the honor and dignity of the fc^ovcrei-n ifut his name should not be made use of by interested parties ever icady to gias|) at po.S:iossio'.s of this kind, and to put forward fuse icpresentations to acc(niii.iish their own views. The vry u-iicv luices nitend.Ml to be reuu^died and redressed by the staUires of Uonry, are tliose under wliich the subjects of this Province mi'dit well say they labore.l, if we were to liold that they couM thus Sn- ceremoniously be depnved of their possessions An in.,uest of olhce IS the constant barrier between the Crown and the subieet Our own ProviMcial statute of 50, Ceo. :], c, (i, will be found to li.-ive seme bearing on this, for by that (which, by-thc-bye does not seem even to contemplate for a moment that the Crown can ve-mvest itself of lands witliout oflice,) the Legislature have -uard- 0.1 most particularly against improvident grants. Three nwnths' notice must bo given of the escheat in tlic^CJa/.ette—a copy of the LAW REPORTB, ID notice must he fixed on the church and oourt-hougo doov of the county whoro the lands hn, and a copy of tlic notice must be served upon any person who may he livini,' on the land. The ohjcet of this act is to protect the subject in his possession, and to prevent the Crown from h^hv^ surprised into inconsiderate grants— such a grant as that to ^Sniith. The case in 12 East., jj!;ives a complete answer to all those cited l)y JMr. JohiistoJi, wherein tlie (Jrown granted wiihout office. The cases which sanction granls from the Orown without office on condition broken, wdl all be found to be those wherein the condition appKind of nrnnl to l»e broken, as where a lease was granted by the Crown for 70 years, with a proviso that it should bo void if the rent should be in ip n^ar. and a grant in fee vul/ioiit i,fin' after the rent was in arrear The rent was payable at the Exchc(iUv;r, so that the non-p:iyment appeared of record, and the King's title was therefore Jhiiml of rcrttrd. So Avliere a grant of the lands of a person aUainted of high treason was good without office, the ground was that as the statutes had in such leases vested the (irhinl ftosscs.sion and seisin in the King without office, it would have taken them out of the operation of the statute ]T, 08 and 70, it is shewn where office is neces- sary to entitle the King ; and Stamford is cited as saying in all cases where a s abject sliidl not have possession in deed or in law without entry, the King will not be entitled without office found or otluir matter of record, as if the King s tenants, aliens in uiort maiii, or without license, the King's title must bo found by office, if he claims upon a forfeiture or a condition lu-okcn; but if (he King's title appears by other matter of record, an office is not ne- cessary. So if a possession in law be cast upon the King, no office \a necessary, but the King may seize without it, as if tlu; King has a title by descent in remainder or I'cverter, for the fieehold is cast upon the King by law. The King in the present case, if entitled, is so for condition broken. This does not appear by office i'ound nor other mattv' of tecord, and therefore, according to all the cases, the ('rown liad nn right to pass the grant to Sinith, a)id he can C()nse(juently derive lio title under it. < .-t K i. :l 20 LAW REPORTS. TA.illATT vs. SAWYER. Mirk. Tam, ISn/i. A Hill ..r .M:.k. ,lv..M to ,., ;«„„ (1,1. C.v,ntor m, ,,rc.r..,v,„... „f otiKT 0.-uiiU.r« is V .li,. (•'("Hill or Tl.is ,vn, :,„ acti,m of tro»pa»., i;,r l.roakins an,l o.,t„.-i„« Mic .^.m-c ol i,i.n,.,ll, ,„„1 for ,<,i.i,„ nn,l ,.„Tyh« ,nv,,y cor.,.in ^.h^I.. 1.™ .onor.1 ,«su..; ,„„1 s|.,„.i,,l ,,l,™ Jostil^ios 'lo taking. ■,„„1,.,. a wnt o( a.t„o nncnt, »„.,! out .;^,,i„.st Jlo.ny Austin, (o „1„„„ tl,o ffmU M,m^<;l l,V,,lk;„tion ,/,• ;„/„,,„. fcue. In July, l«;it, 11. Austin i,ci„^r |„j.,,^ i,,,,,^,,,,,,, ,„ , . .■«.cu.o,Uovon. 1„11., of . ale to l,im. one of In, „,a. in ,„,!,., „!,,' I"'.- " l..» .oal c,H.;>,o „n,l „notl,or of hi., ,,o„,ol,„,,| ,-„„,i,„,,, I .mil vor ,.ly ,.j;.w,l to p,,y .,ov,.ral small ,lol.l., ,1„„ l,y I|. Aust ,, winch he , „1 The debt for which the writ of ..t.oliont .su. , w,. not n,ol„,le.I in ,1,„ h,t. A few ,h,y, afte,. thco hill. , •*. l*: :' ™^'^""=''^ "'• """ch..Knt was 3uc,l out hy the Kxc,.,. .« ol 11,11 a.^a,„,st II. Austin, ,m,l on ll,„ prococlings of the Bhe nil, ... oxecut,ng that w.it, the present clahn is K;n,le,l. The ;,' ,f ''■■ ' "'V'- '" ''- i'"y »' tl.o ..uostion of IVau,l 0,. ,", lrau,l. J«,-y found ve.W,ct lb,' plaintill'- damages 4Ms. Thc.e was a rule N.s, ,,.unte,l to set asi.lc verdie,,-ls,, heeause cm .■a-yto ev.dence; 2ndly, for ,nis,lirection of the ,iu,l,„; ardly Wa„.,e l,.lls of sale un,lci- which plaintifl' elai.ned we.e fi, ,„lulem nd convey., no right to hiu,. The g.-ounds on which hills sale wore attacked wo,e as follows :-]st, beonse the true eonsi- .Icrat,o„ for w^.ch they were given was not the same as that which ap,«red on the aee of them; 2ndly, because a .nuch larger s™ ».s secured 1^ Austm to the plaintift- than the amount of ho , ,luc to h,n.scll, and the su.plus which was for the l.c.at of t , % ; ^ ^' ' *"■"' ''"■'' "" ™* P°»««««'™ ta'«» hy the pla,.,t,ft ot the prope,-ty assigncl ,u, was necessary to the ,.ssign,u<.nf r such notonety ,. might be e,uivale„t to a possession f 4th;y that ,t w,B an assignment of all the debtors propert,, to some L W:t'^" " "" ""'"^'''" "f °"'™> -' i-^ ™ that .Juut or no Thci< LAW REPORTS. 21 Halliburton, Oil Jus.— If we were trying the hon-.-sty of the transaction, would we not arrive at tlir same conclusions as the. jury 7 This is the case of an honest debtor securing to honest cre- ditors their ju8t debt. The transaction was made public. Tremain makes it known to die liev. W. Crawley— it is talked of in the street. Tarrat is pointed out as the man who shut up Austin. Hartshorne was preparing* an advertisement, the insertion of which was prevented by the levy of the attachment. It is mO. that the furniture was -vllowed to remain in the possession of Austin, and that we are bound to set aside the verdict because this is a glaiin"- badge of fraud. In Woodall v. Smith, |1 Camp, 332, 1308.') where, after the assignment, the assignor continueti in possession, and carried on his business as a Publican, and the money received Ibr the sale of beer was put into a till to which both assignor and his wife had access. Lord Ellenborough told the jury that it was a mere mockery to put in another to lake po.vsession jointly witli the former owner. That tliere nmst be a substantial bona fide change of possession — that the possession must be exclusive, or it was fraudulent and void against creditors ; and the jury, under these directions, found for the pk intift'. That is the strongesi. case that has been decided sirce that oi" Edwards v. Ilarben, |i* T. II., 587,] in which BuF-^", J., does certainly lay it down in the strong- est language, as tiie opinion of the twelve judges, that if possession does not accompany and follow an absolute bill of sale of goods, the bill of sale is fraudulent and void in law. This case was decided in 1788, but subsequent cases by no means support that broad position ; f>r in Steele v. Brown, [1 Taunt., -Wi,] Mansfield, C. J. says : |' No case has decided that a bill of sale, unaccompanied by possession, may not, under certaiji circumstances, be fair and valid." LaAvrence, J., in the same case, says that the case of Edwards v. Harben is good law, but he makes a distinction of the case of creditors, which the broad position itself does not refer to, as it pronounces the want of possession under an absolute bill of sale to be of itself fraudulent and void. In the case of Reed v. Black, (5 Taunt., 215, 1813,) it would have been unnecessary to have gone into the long argument which took place upon it if the naked broad position laid down in the case of ^Edwards v. Ilarben is the rule to guide courts in all subsequent eases. But the cir- cumstances of this case are dwelt upon largely both by the counsel and the court: and how does Mansfield, C. J., dispose of the ques- tion relating to the bill of sale to, and the lease from, Sandell 1 He does not say no possession accompanied it, and therefore it is void, but he goes into an enumeration of many circumstances, viz : that there was no proof of the judgment and execution under which 22 LAW REPORTS. he purchased -no proof of any consideration paid, nor of any rent paid under the lease: and even then he does not say the court, therefore, held the instruments to be void, but he says the mrv 'fmrrht inM consider whether that lease was ever made, or for any other purpose than to protect the goods of Taylor. Dallas J in giving h,s opinion, says expressly : "• This was exclusively a ques- tion of fraud for a. jury to decide," and he adds in that case, (as I should say in this), / shuvld hare found a.v Ihvy did. Arm- ?r?i7a ^''^'^°'''' ^"'^ Woodham V. Baldock, [Gow, X. P., Rep. do, 1818,1 are mstances that the position laid down in 3'dwards v Harben cannot be maintained to its full extent, and the questions arising m those cases were properly referred to a jury to decide upon the fact of fraud or no fraud, altlnugh the court'gave them then- instructions to guide them. In these cases much stress was laid upon the notoriety of the transfer when the v.ossession is incon- SIS ent with the ownership claimed. In the latter case. Dallas J in h.s instructions to the jury, says : - As a general position, it is not true that the possession of goods proves the ownership of them •" and again he says : "In transactions of this sort, secrecy is 'a badge of fraud, but it does not of itself prove fraud."' The rcpor- , ter s note to this case and the cases he there cites, particularly Hoftman and Pitt, [5 Esp., N. P. C, 25], shew that the want of possession m the case of an absolute agreement, is not such a cir- m.stance per se as makes the transaction fraudulent,- it is only indicative of fraud, and therefore a question for the jury to decide In Eastwood V. Brown, [1 Hy. & Moody, 312.] posses;ion did not accouipany the bill of sale, but the goods remained in the posses- sion ot the vendor, yet the bill of sale was sustained, and the vendor recovered m an action against the ^herilf, who liad taken them unUer a h-ta, issued against the vendor. Abbot, 0. J. said- 1 cannut agree to the doctrine laid down in Woodall v. Smith I he circumstance of an assignee who is under pecuniary embar- rassments remaining in possession of the proi.erty assHnied is always suspicious ; but if it does not appear that this takes place nmler a Jraudulenl armnncmerii between the parties for the pur- pose of delaying creditors, it is not of itself a conclusive bad-e of traud. In Martmdale v. Booth, [3 B. k Adol. 408 ISS'? 1 tomyn, counsel of defendant, who was contending against the riSJ ot an assignee who had permitted the goods he claimed under a bill ot sale to remain with the assignor, commences his ai-cument by saying : " It is not necessary to contend that every bill of sale is void where the vendor continues in possession, but this he said was void under the peculiar circumstances." The court, however thought otherwise. The jury had found a special verdict, and had 3f any rent T the court, y^ the jury or for any alias J., in ely a ques- case, (as I 'd. Arm- . P., Rep. Ldwards v. 3 questions ' to decide [Tave them stress was 1 is incon- Dallas J., iition, it is of them;" 3recy is a 'he repor- irticularly e -w^ant of ich a cir- t is only to decide- in did not 10 posses- he vendor ien them J. said: V. Smith y embar- igned, is kes place the pur- badge of , 1832,] the right ler a bill ment by »f sale is said was lowever, and had LAW REPORTS. 23 thereby referred the question of fraud to the court, which thev might have decided themselves. The equitable case of the parties who were resisting the bill of sale in the name of the Sherifl was very strong. The assignor had married the widow of their debtor who o^^ed them XI 100 at the time of his death, and by such mar' nage had become possessed of the debtor's effects. Subsequent to his marringe ne had executed a warrant of attorney to these credi- tors for the amount of their debt; yet a subsequent bill of sale of the turniture of the assignor, the consideration of which was a debt subsequent to that of the real defendants, in this case was up- lield />y- Lne court, (although the assignor remained in possession of the goods,) so as to defeat the claim of tlie creditors under a ti-ta issued upon a judgment entered up on the warrant of attor- ney. It 13 true that Lord Tintenden, in giving his opinion, lays some stress upon the possession by the assignor being con«isteiit with t he deed, which contained a condition permitting him so tw do until dcfmlt was made in the payments ; but the main foundation of his opinion was that the deed of sale was not absolutely void for lo ?r ''^^n ' o"lT- .^f^'"' '^■^ ^" '^t"^S ^"'^-0'^ ''■ Tl'ornhill, [J Marshall 247J, which was the case of an absolute bill, says • It was said in argument that want of possession was not only evidence of fraud, but constituted it ; but Gibbs, C. J., dissented- and although the vendor there after executing a bill of sale was allowed to remain in possession, he left it to the jury to say whe- ther, under the circumstances, the bill of sale was fraudulent or not; and m this case Parker, J., talks of the f/icinm of Bui ler J in Edw-ards v. Harben. and thus evidentlv makes a distinction' be- tween his general position and the decision of the court in the par- ticular case , but I must admit that the decision itself, indepen- dent of the strong expressions of Judge Bullen, would be a strone case m support of the defendants here if it had not been shaken bv so many subsequent cases. "^ It has also been urged that the assignment is fraudulent, because some creditors were favored and others e.itirely excluded The case of Nunn v. Wilson fS T. R., .^21, j hag been cited in support of this position ; but I think the case much stronger in favor of the plaintiff than of the defendant. There Lord Kenyon says • "Putting the bankrupt laws out of the case, a debtor may assi-^n all his effects for the benefit of particular creditors." In decidim' questions of this kind the courts have always disavowed enquiring whether the consideration be equivalent ; they will not weight it in very nice scales if it be an honest transaction. In Tolpot v. Wells (1 M. w. S., 395,] which vras also cited for the same purpose, all that was decided wjis, that an executor could not take upon him- i;c u LAW REPORTS. self to alter the whole arrangement and invalidate the rights 'vhich the law has given to the creditors of his testator in their several degrees, and virtually convert such of them a« he thought proper into judgment creditors, (to the prejudice of others.) by confessing a judgment to one for a larger amount than was due to him, in trust for others. The case of Pickstock v. L ^ter |3 M. & S., o71,J decides nothino; more than that a general assignment for the benefit of all the creditors of an insolvent debtor shall be sustained, although for the purpose of delaying a judgment creditor, and the honesty of securing such equal distribution of the insolvent's ef- fects is properly commended by the court; but it does not deny the right of a debtor to assign his effects to a particular creditor or creditors to whom a debt or delits is or arc really due. Indeed the^case was decided upon the authority of Holbred v. Anderson, [5 T.^ R., 235,1 where such preference was actually given. It is true it was given there by a warrant to confess judgment; and in this case by a bill of sale, a distinction on which much stress has been laid ; it being contended that as a judgment is matter of re- cord it is of :*-self notorious, which is not the case of a bill of sale executed between the pa.iies. The plain answer to this is, that as secrecy is one of the indications of fraud, the jury are the tribunal to pass upon that fact, and to draw their inferences accordingly. It cannot be questioned that in the case of Tarratt v. Sawyer, there was abundant evidence for them to consider as to the notoriety of the assignment. In Wadeson v. Eichards [1 Ves. & Bea.. liO,] the Master of the Rolls says, "the court always lean in tavor of equal payment of all debts." Undoubtedly they do : but they must not lean so bard as to upset the legal rights" of the parties. Ln Spo.ner v. Whiston, [8 Moore, 580,] the question of fiaud was most properly left to the jury, who decided it according to the views which the courr, took of it. I do not sec how it bears upon the case under our consideration. In that case thejc was an ex- press stipulation in the deed that it should be void if all the credi- tors did not e.xecute it, and thereby consent that all the debtor's effects should be equally divided without any [iriority or preference, and yet tb.e debtor gave a prefrence to one This was rightly held a fraud upon the rest. The case of IJaddock v. Walton, [3 Price, 10,] like that of Wat — i v. Richards, shews that courts, both of law and equity, favor assignments for the benefit cf all the creditoi-s equally, 'i'he case 'of Eas^twick v. Caillant [5 T, it., 4*!0,] was cited in support of the position, that as this assign- ment was made by Austin to Tarratt. with tlie knowledge of HdVs debt in both parties, and with the intention of excluding Hill, that it is on th.at .account fraudulent- Now I think so far from sup- LAW EEPORTS. 25 ■ights 'vhich heir several ight proper ^ confessing to him, in 3 M. k S., icnt for the sustained, or, and the :)lvent's ef- ;s not deny !ar creditor e. Indeed Anderson, van. It is snt ; and in stress has itter of re- bill of sale i is, that as lie tribunal 3cordingly. wjer, there lotoriety of :!ea.. liO,] in favor of but they 16 parties. 1 of fiaud iing to the )eavs upon as an ex- the crcdi- le debtor's sreference, as rightly -. Watiori, hat courts, efit cf all tint [5 T. lis assign- sofHilVs Hill, that rem sup- porting such a position, i* ''^ a. strong case against the defendant. Lord Kenyon says, " it WciS neither illegal nor immoral to prefer one set of creditors to another." It is only in reference to the bankrupt acts that he makes the distinction between assignments tnat exhaust the whole estate of the assignor, and those which do not. A;-hurst, J., says, "there is no objection to a debtor pre- ferrino; one set of creditors to another, unless in certain cases on the bankrupt laws '" In this case, Luller. J., makes some observations which well apply to another giound on which defendants have sought a new trial,— that of misdirection. I do not conceive that objection can be sustaine'l. for I tliink my Brother Hill's directions, as contained in the report, were quite right. It is true he told the jury that if they Avere convinced that there w^as a real debt due bona fide to the * plaintiff, at the time of the assignment, there was an end of the defence ; yet that was said after he had laid the facts of the case before them, and had commented upon the evidence. Not only the fair but the necessary inference to be drawn from what he said is, that if, under sucli circumstances, they were of opinion that there were a real debt due to the plaintiff, there was an end to the defence ; and in that I entirely concur with him. A Judge can- not open his mouth and present a panorama of his charge to be taken in, if I may use the expression, at a single coup iV oreille. His words must be uttered consecutively ; but they must net, on that account lose their lelation with each other, or we should be reduced to the difficulties, which Swift has humorously ridiculed, of totidem verbis ct ioUdcm likris. But even in cases where the Judge niiiy have made a slight mistake, Buller. J., says: "On an application for a new trial the only question is, whether, under all the circumstances of the case, the verdict be or be not accord- ing to the justice of the case ; for though the Judge may have made some'litlle slip in his directions to the jury, yet if justice be done by the verdict, the court might not interfere to set it aside. Now I am so fully of opinion that justice has been done by this ver- dict, that had it been found for the defendant under such proof, and an applic^'tion had boon made to set it aside, 1 should have thought there would bo nmch for the grave consideration of the court. The jury are undoubtedly the judges to decide upon questions of fraud ; but hau they decided that this assignment was fraudulent, without any furtlicf proof than what was produced in this case, I think I should have been disposed to submit the question to ano- ther jury. Neitlier Judges nor Juries can make laws, — that power is vested in the Legislature alone. And if by the law of the land a debtor may, without any fraudukjit intent ^ assign his. I Ml 'if 26 LAW REPORTS. property to a particular creditor, and does make an assignment under c,rcum.tarK.es wh,ch completely negative fraud, (as I tS IS the case here ) a ,urj have no right to deprive him of tlmt nower Lo d Ellenboro^igh jys " t is not in every feoffment, ^c, v^hich Tn t r 'f'^ '^ '^'^"^"^" ^''^'^'t^^'^ «^" their debts, that s frau- dulent Avitlun the statute : ibr such is the effect, ;... ^anfo of every assignmen that can be n.ade by one ^vho has 'creditors' Everv dim nhsh the fund out ot uhjch satisfaction is to be made to his crorhtors; but the feoffment, &c, must be made of nSe Ld or the hke, to bring it within the statute. ' ' 1 have not overlooked the American cases which have been cited Mcc.sions at U estmmstcr, we denve great satisfaction and advantaL'e from the vie.s taken by the able lawyers who sit upo. mZTtl'e Benches HI that country, of transactions so similar to those whch frequently occur m this. Chancellor Kent, howeve T h^se Comrnentanos which are probably destined to 'carry down Ids name to posterity as an ornament to the profession, observes that therw upon cjuesnoris of this nature is .lill rnore ' unsettled rAme LI that :;V" ^^^ ""^- . .^^"^^ ^^" ^y '^'^ t^''"^ -'-^^^^^ed he means that no hxed and positive rule has yet been adopted in either coun ry, by winch assignments of personal nropertrunaccomnr n.ed by possession, shall be invariably boun ^ unsettH I imTXe t must long remain. The transactions of L are too various and the ingenuity of those who are disposed to l.ke a deviou coirse ft whilp tlf • "^'^lf;>gn"ig ^vould be often entrapped by it,_ While the designing would continually evade it. The safe.f pnnciple is to consign the determination of each particuhu cas7?o ro;l?K "' r "^" '"'^'*^"' '' ""<^«^ ^" ^'^ circums anco" wh Ttl e court by the.r mstnietions to them, and where necessa y by h" ? control over the verdicts, will endeavor to preserve as much uni I think therefore that the rule should be discharged. HJLL. J.— ihjs case was tried before me in Easter Term hst anda verdict ^^.Is fo. nd for the plaintiff. A rule xNisi va^oL ned o set ns verdict ..ide and grant a new trial upon four gro nd^^ 1st, that the verdict was contrary to the evidence ; 2nd tha- 're was a misdirection of the Judge ; 3rd. that the bills of al ueJe .r^^suftc^nt in ^law; 4th, that there w.^ ss]gnment as I think hat power East., 1,] cc, which it is frau- S of everj ' Every lest, must de to his ce, fraud, een cited, Jst to the td\'antage 'iiy of the )se which in those his name t the law America le means in either iccompa- imagine ious, and i course, advanta- ipped hy le safest i" case to rhihi the by the'r ich uni- h trans- •m last, )btained rounds : at •' re le ^vere of the LAW REPORTS. 27 The argument, however, has turned principally upon the ques- tion whether the bills of sale, dated respectively on the 1st and 2d July, 1834, and executed by Henry Austin, conveying the one all his stock in trade, the other all his household furniture therein enumerated to the plaintifi', are or are not, under the circumstances of the case, fraudulent and void in law as against the creditors of Austin ; for if the defend}- -it .. ^ made out that these instruments are so fraudulent and void. ..lu ought, perhaps, to bo a new trial, because I put the question of fraud tf the jury for their consider- ation. It may be here remarked, that if the doctrine contended for on this argument by the defendant be sound, then a motion for a non-suit would seem to have been the proper course at the trial. The cause ought to have been arrested, and not sent to the jury, for the purpose of enquiring into a pure question of law. No such motiOn, however, was made. It is insisted that both these bills of sale are fraudulent and void, because they transferred all the debtor owned, and were made upon an express condition to exclude two debts di:e by Austin, the one to the executors of Hill— the other to Kidston. Now not one case has been cited to shew that such a transfer has been held void, nor has any text book been produced in support of thi« position! The utmost that any of the cases have proved is, that the courts in England have supported bills of sale, transferring the goods of a debtor to trustees for the benefit of all his creditors, though such transfer were made with the express intent of delaying a particular creditor. Such is the doctrine in Pic]< stock v. Lyster, [3 M. k S. 873,] and the other cases cited on this point ; but it by no mean's follows that, though such deeds are supported, those conveying all a debtor's property to one creditor for the payment of a just debt, are void. The case, however, of Benton v. Thornhill, |2 Marsh' 427,] satisfactorily disposes of this objection to the bills of sale under consideration. In that case, (which was approved of by Parker, J., in Booth v. Martindale,) a debtor, by a bill of sale, transferred all his property to a creditor, and yet the question of fraud was put to a jury, whose verdict being in favor of the trans- fer, was upheld by the court upon a motion for a new trial. But it is argued : supposing a transfer of all a man's property may be made to pay one creditor yet there must not be an express m.otive, compact or design, between a debtor and a creditor to whom an assignment is made to exclude a particular ci-editor. The parties in fact, though they may intend to, and actually exclude a parti- cular creditor, must not declare their intention. Now, if the act of transferring to a particular creditor all the goods of the debtor be not of itself fraudulent as against other creditors, I confess it LAW REPORTS. seems difficult to me to come to the conclusion that a declaration of the parties that they did the act with the view to pay one and exclude others, i? fraudulent. If, in the present case, Austin, previous to the execution of the hills of sale, had exhibited the list of his creditors to Tarratt, and, without any declared intention as to exclusion, all Austin's cveditors had been included, except Hill and Kidston, here certainly would have been exclusion intentional though not declared. How are we, then, to come at the intention but by the acts, and if these do in fact exclude, aro words neces- sary to shew intention. Let it once bo granted that a creditor may, to pay a just debt, assign all his property to one creditor, which must have the effect of excluding others, "and which effect must ho known to the debtor, the declaration of the quo auimo cannot alter the legal position of any of the parties. But it is urged, this pre- vious compact— this declared intention to exclude, is evidence of fraud. Granted. But what then : why, according to the very cases cited, this is referable to a jury as was done in Pickstock v. Lyster. It is then insisted that the secret tigreement between Austin and Tarratt as to the payment of Austin's debts ought to have been reduced to writing and to have formed part of the deeds, and that the omission operated injuriously as against Austin's creditors ; but to me the cases cited ir support of tiiis appear to have no ap- plication. Those of Knight v. Hunt, and Britton v. Hutches, in 5 Bing., (pages 432 and 4G0,) that of Leicester v. Rose, I East., decide nothing more than that no legal effect can be given to an agreement by which certain creditors are to have a better seturitv for the same sum than the rest of the creditors, after having en- tered into an agreement with them, importing that all were toliave the like satisfaction. The scope and ol>iect of these decisions were to ensure the strictest good faith and fair dealing between creditors entering into agreements for compositions with their debtors. But who is complaining here, and where is tlie bad faith. If Aus- tin had the right to transfer all his effects to Tarratt, which I think he had, then it will be quite time enough to discuss the tendency of the verbal agreement to pay some other of Austin's creditors, when those creditors come here or apply to some other court by way of complaint. The moral right of the creditors to share equally the effects of the debtor, has been brought forward also on this point of the ar- gument ; and it is strenuously contended that in all cases creditors have a just right equally to share, or, in other words, that all are equally meritorious. But if we were to be influenced by this ques- tion of ethics rather than law, I know not whither we should be 1 declaration pay one and use, Austin, bited the list intention as , except Hill n intentional the intention words neces- ireditor may, !ditor, which Qect must bo cannot alter ed, this pre- evidence of to the verj Pickstock V. 1 x'Vustin and ) have been ds, and that s creditors ; have no ap- Hughes, in )se, 4 East., given to an Iter seiurity havino; en- ^■ere to have cisions were 'en creditors sir debtors. 1. If Aus- lich I think he tendency s creditors, er court by le effects of ; of the ar- es creditors that all are y this ques- shouid be LAW REPORTS. 29 led ; for then if Austin has turned all the chattels in question into money, and paid that over to Tarratt, the latter ought to hnve refunded, and that was not contended for in the argument. But if I felt myself at liberty (which I do not) to enter into that ques- tion, I cainiot say that I find anything in this case deviating from the principles of morality in the strictest sense of the term. If tlien we find no authority for the position, that transferrin fr all a debtor's property to a creditor, and an agreement to exclude particular creditors, is fraudulent and void in law. the bill of sale assigning Austin's stock stands free from any other objection, because po.ssession as to that did accompany and follow the deed,' and so the jury have found; and it cannot for a moment be said that the f ict of possession was not for them, and that there was not ample testimony of possession in Tarratt. The remaining question, therefore, arises upon the bill of snle of the household fa'-i-iture,. the pc-ses.sion of which, it is said, did not accompany and follow the transfer; and upon this part of the case the bold position —and that indeed which comes to the real point- has been taken, that, with some exceptions, in transferring chat- tels, immediate possession must accompany and follow tlie deed transfeiring,~that there must be an actual exclusive possession in the assignee; otherwise, that the fact of the assignee remaining in possession, makes the iteed void in law. As to this, Twytie's case, and that of .Edwards v. Harben, have been relied on. We must not forget, in discussing this matter, that a verdict has passed for the plaintiff, and that the question of fraud, upon the whole cir- cumstances of the case, has been submitted to and negatived by a jury. Now, after a jury h;-ve pronounced their dclibeiate opinion that the transfer Avas bona fide, the court, unless they saw clearly that injustice had been done, would and ought to require a deci- sion directly in point bef jre they would interfere and disturb a ver- dict ibunded upon a consideration of facts submitted to them for their determination bij ,'/w defendant himself— hv I have already noticed that there v/as no motion for a nonsuit. Now, both these cases of TAvyne and Edwards v. Harben, were decided upon spe- cial cases submitted to the court for their decision, upon a state- ment of facts agreed on. Twyne's case was decided in the Star Chamber, and the question of fraud was expressly submitted to the court for their decision, as to the fraud, upon the facts stated ; and they came to the decision, upon the whole matter, that the deed of gift was fraudulent, and so perhaps the jury would have come to the same conclusion in the case under consideration had Austin remained in possession of the furniture and sold part of it. n.nd used it in all respects as his own. It is expressly stated in ■■i m 30 LAW REPORTS, Twyne's case that the bill of sale was made in secret, and during the pendency of a writ against Pierce at the suit of C. That it was a general deed of all Pierce's goods and chattels. That Pierce remained nevertheless in possession— that he sold some of them — that he sheared the sheep and marked them with his own mark. Here secrecy was expressly negatived, for it is in proof that Aus- tin had on more than one occasion declared his intention to trans- fer, and be followed up that intention by transferring Austin's bill of sale, enumerated the goods transferred. Austins transfer was before any writ sued out' against him, so that the facts of the case are widely different. This case, therefore, is no authority tor the general proposition that in transfers of the description under consideration, possession must accompany and folloAv the deed transferring ; indec'l. I draw the contrary inference, for had that been the doctrine held by the court, they would probably have so resolved, whereas the very first resolution is that the deeds had the signs and marks of fraud because it was general without ex- ception of his apparel or anything of necessity. The case of Edwards v. Harben has then been pressed upon us. It is mate- rial to observe that that case came before the court upon a special case reserved for its opinion, and it Avas the duty of the court to give their judgment upon it. A very difierent conclusion was drawn from the facts stated in that case, from which I should feel inclined to draw. The court in that case admit that if the bill of sale is not absolute but -jonditional. and the delivery is to take place at a future day and not immediately, it is not fraiidulent; for the vendors remaining in possession is consistent with tiie deed. Now, if the doctrine that possession must accompan^' and follow the deed transferring chattels, is to subserve the interests of society, by upholding fair dealing and by preventing fraudulent and covert transfers, it is difficult in my mind to draw any distinction between absolute and conditional bills of sale. The vendor remaining in possession under an absolute bill of sale is surely not more calcula- ted to deceive the Avorld than when his possession is under a con- ditional one. If Tarratt had stipulated that Austin should have remained in possession for six months, and then that he should enter it, must be conceded under Edwards v. Harben that the transfer had been good, and yet Tarratt would have had these transfers locked up in his desk. Tarratt and Austin being the only persons cognizant of the mattei ; and yet the moment the Sheriff came to make the levy the bill of sale would have been brought to light and the Sheriff must have stayed his hands. How this mode of transfer can operate to prevent fraud. I cannot discover. There is no magic in words ; and the good sound sense of the thing and during . That it ?hat Pierce of them — own mark, thai Aus- n to trans- ; Austin's s transfer icts of the thority tor tion uiider the deed • had that ly have so deeds had ithout ex- le case of .t is niate- 1 a special ! court to usion was hould feel the bill of s to take ulent; for tiie deed, lid follow )f society, md covert 1 between aining in e calcula- ler a con- )uld have le should that the lad these ; the only le Sheriff rough t to ;his mode •. There ;he thing LAW REPORTS. 81 requires that if immediate possession must follow, it must in all cases, for the world Avill be equally deceived. But are we so fet- tered by the case of Edwards v. Ilarben, that we cannot support the verdict in this case. Eastwood v. Brown, et al. [1 llyan and Moody, 312, J would of itself be sufficient authority for me to up- hold the transfer unless I saw the principles of justice wounded. It seems decisive. One Pope assigned a leasehold, house, and all his furniture and household effects to the plaintiff, who was his creditor. Pope, out of the purchase money, paid several of his creditors. There was no direct evidence of fraud, and the full value was given. Pope continued in the occupation of the house and furniture after assignment precisely in the same manner as before. Abbott, 0. J., left it to the jury whether, under all the circum- • stances, they were satisfied the assiginuent Avas made to delay or defeat the creditors in the recovery of their debts. He expressly di&sented from Edwards v. Ilarben, and told the jury that the assignor remaining in possession of property assigned was always suspicious ; but if it did not appear from other fl.cts in the case that this took place under a fraudulent ariangement between the parties for the purpose of delaying creditors, it was not of itself a condiisio'j badge of fraud. There was a verdict for the plaintiff, and no motion for a ncAV trial. Martindale v. Booth, is an express authority on this point of possession. Parker, J., no mean autho- rity, there says that Edwards v. Harben hag not been considered in subsequent cases as deciding that the want of delivery of pos- session makes a deed of sale of cl-attels absolutely void. He says ;hat the want of delivery is only evidence that the transfer was colorable. He refers to Brenton v. Thornhill, and he quotes Shepherd's Touchstone that a bargain and sale of goods may be made without delivery, and adds : " it is evident this bill of sale in this case without delivery conveyed the property. It may be a question for the Jiir?/ whether, under the circumstances, it be fraudulent." The case of Benton v. Thornhill is also of great weight, for there the bill of sale was not conditional, but absolute; it was made also between debtor and creditor, and conveyed all the property of the debtor. In moving for a new trial tlie very ground taken by the Solicitor General was, that possession must accompany a bill of sale of chattels, — the question of fraud being left to the jury ; and yet the court refused to disturb the verdict which upheld the bill of sale. Without dwelling farther upon tl.' , I would only re- fer to the cases of Armstrong et al. v. Baldeck, Lady Arundell v. Phipps et al., [10 Ves,, 145, | to shew *^dX imm.ediate and conti- nuous possessiuu need not accouipany and follow a deed transfer- %\ LAW REPORTS. ring chattels. The case of Reed et al. v. Wilmot et al., [5 M. and Piiyne,] has been cited to shew that the doctrine in Edwards v. Harhcn, that possession must accompany an absolute bill of sale of chattels, has never been doubted : but I do not take it to establish any tlung beyond this, that if a jury find there is no fraud, pos- SB^.sion nee.i not, according to that case, accompany a conditional hill of sale. Parke, J., is referred to as saying that Edwards v Harhen had never been doubted ; but that Judge must be taken as having reference to condititional bills, for the same Judge in the case of Steward v. Lombe et al., |1 B. & B . 506.] will not be iound to be so decided as to the extent of ihe doctrine in Ed- wards V. Harhen. In the case in B. k B.. Dallas, 0. J., says Edwards v. Harhen has oflen been dissented from; and cites' with approbation, the doctrine in Kid v. llawlin.son. Parke, J '* in givuiii his opinion, speaks thus ot Edwards v. Harhen • " Sup- posing Edwards v. Uarben to be law, (though doubts have arisen as to the extent of the doctrine there laid down.)" The posses- sion, therefore, that must accompany and follow an unconditional bill of sale of chattels, as far as I have been able to discover finds no support except in the cose of Edwards v. Hniben, which has been, ^n many cases, in eiTc t exprr-ssly overruled. Then, because It has been so overruled— because I find the question of fraud or no fraud constantly submitted to the consideration of juries— be- cause 1 think that the proper tribunal to refer such a question to— because I think a jury, and not the court, the most proper deposit in cases of this kind, of the safety and fairness of trade— I am of opinion that toe rule should be discharged. Bllss, J.— The principal questions involved in°this case, relate to the validity of the bills of sale on which the whole title of the plaintiff depends. And on the part of the plaintiff it is contended : Isfc. that the evidence clearly proves these bills of sale to be frau- dulent and void ; and 2ndly. that it is for the court, and not for the jury, to pronounce under this evidence that they were frau- aulent. The ease has been most fully discussed, and every aro-ument that could be raised, and every authority which the leaini'n- and industry of the counsel could adduce, have been presented to our notice, to establish these propositions. I confess they failed at the tune in bringing conviction to my mind on these points, and the consideration which I have since bef^ii enabled to oive them has lefc my former opinion unaltered. It is true tliat ^lecided cases nM a,r-/a ot Judges of high authority are to be found, in which the validity of bills of sale or assignments, like the present, are treated as questions of la^v alone : yet. notwithstanding these, I am i^-aiiStil'-.f,^.'-..^;' - , (5 M. and Pidwards v. ill of sale of to establish fraud, pos- conditional Kd wards v. >t be taken i Judge, in >,) will not ine in Ed- J. J., says. and cites, Parke, J.,' ;n: " Sup- ^ave arisen ['he posscs- iconditiorial 3over, finds which has en, because )f fraud or juries — be- estion to — per deposit :!ase, relate title of the contended : to be fraii- nd not for were frau- ■ argument ivning and ted to our tiled at the ;s. and the them, has ided cases , in Avhich resent, are besc, I am ■f LAW REPORTS. 85 of opinion, both from other and later decisions of not less weight, und also from reason and principle, that the present case was properly submitted to the jury and that it was their province alone to de- cido upon the validity of the assignment under which the plaintiff claimed. Undoubtedly the whole case presented a mixed question of law and fact; but a reference to the statute of 13 Eliz., ch. 5, will at once shew in what that mixed (juestion consisted, and how the two parts are and ought to be distinguished. The very statement of this according to its twofold character, keeping that distinction in view, goes very far, it appears to me, in settling the point before us. The Judge, then, is to instruct the Jury, if he wishes to follow m-nutely and strictly the statute, that feigned covinous and frau- dulent assignments arc void in law,— that those assignments are so to be considered which have been devised of malice, fraud, covin, or collusion, to del; y. hinder or defraud creditors of their just and lawful actions, to the hindrance of the due course of law and jus- tice, and to the overthro^v of true and phiin dealing,— that no pre- tence or color, or feigned consideratior;, or expressing of use, or other such matter, will uphold them, if made with the aforesaid design ; but he will add, that if indeed the assignment be mado upon a good consideration, and bona fide, for both are essential, then they are valid. Such are the matters and the whole matters of law which ho has to give to the jury, under the statute. The question of flict which he then has to leave with them, for them alone to ascertoin, is this : " Were these assignments of a feigned, covinous and frautiulent character, made with that purpose aiid intent, and .Avith a colorable and feigned consideration ; or, on the cr .trary, were they made bona fide and on a good considera- tion?" ^ But this question, like many others, depends not upon any one single fict or circumstance, but on many or a combination of facts. The motives of a party, we are told, [8 T. R., 530,] and very pro- perly, must be looked to : for on this depends the consideration of its being fra-ululent or not. Eut can those motives be at once as- certained irom a particular part of the transaction, or would it not obviously require a due regard to every thing that took place. It would be as unji;,^t to select one expression from many, and ex- clude the I'jst, in order to prove a fact from what Avas said, as to offer a single circ-iinistance as conclusive evidence from which the character of a tiansactlon was to be pronounced, without reference or regard to the whole res gestae Each circumstance may produce an inference more or less strong, as it may or may not be met by ' I ^^ i yj S4 LAW niSPORTS. Other facts which lead toother presumptions ; but it is by weighing all, and balancing thos" where they are found" in opposition, that the just conclusion can be obtnin*'d ; and this it is the province of the jury to do ; find this appears to nie precisely the nature of the question before thcni, and of the evidence by whi;;h they had to decide it. Nor will the correctness of this general proposition be found less applicable to the case before us, by a review of the ob- jections raiicd by the defendant, The first ground upon which these assignnients are impeachtd, refers to the consideration ; that it is not truly set, and is, moreover, greate. lluu. the amount of the debt due from Austin to the plaintiff. Now. these are themselves matt.TS of fact which are to bo flryt ascertained. But admit them to be '0, do thoy necessarily shew that therefore the assignments were not made on a goird consideration— that they were made mala fide, and are colorable and collusive ; for if they do not ne- cjssarily show this, the court caimot pronounce the assignment to bo void. Are those n.atters, then, capable of no possible explana- tion I Can ntjthiiig be oiTered on the part of the plaintiff to account satisfactorily ibr all this / If the assignment is to be held fraudu- lent from this circumstance, it is at most but an inference ; and shall the plaintilT be precluded from proving other circumstances which may weaken or destroy it? Nay, the defendant goes far beyond tins ; he cannot possildy ascertain these facts relative to the consideration up )n which he relies, and from which he adduces the illegality of the j.ss gnment without investigating the whole trans- action. That investigation discloses to the court other circum- stances, Avhich it i-ees, and which no reasonable man can but see, do very materially bear upon the point; and yet the defendant would have us decide, that Avith those circumstances the jury ha^ nothing to do, and that the court itself must pronounce on the main fact with regard to them. And vdiat are these circumst nces which might have such eifect. but must not. In the first place it is shewn that the property, though nominally stated at a certain value, was in fact of nmch less. But, says the defendant, the plaintiff having agreed to take it at the sum named, i" precluded from shewing this — is precluded from shewing that which is so material to the very point in issue, viz , whether the assignment was made fairly or fi-audulently. I do not see how that question could be decided without giving a proper attention to that fact. In the ne.vt place, the plaintiff shews that his own debt did liot form the whole consideration— that the debt of other creditors, whom he assumed to pay, formed a part of it. Now, this ag^in seems a very proper and legitimate subject of inquiry for the jury, as constituting a part of that by which the bona or mala fide of the transaction was s by weighing iposition, that e province of nature of the they liad to )roposition be jw of the ob- i upon which eration ; that iniount of the re themselves t admit them assignments y^ Avere made y do not ne- ssignmcnt to ible explana- iff to account held fraudu- ference ; and ;ircumstances ant goes far elative to the ; adduces the whole trans- ther circum- yan but see, le defendant the jury haf'. unce on the ircumst nces first place it at a certain [jfendant, the i" precluded which is so > assignment that question to that fact, did not form >rs, whom he seems a very i constituting Lusaction was UW RBP0RT6. 86 I to be determined. That this took ploco without any communication with those other creditors for whom the benefit was intended, was, with other tlnngs, to be regarded in order to ascertain whether it was a mere color and pretence to cover Austin's property, or so nmch of It, from other creditors. But there was the positive oath ot Austin tliat this was not the case, and other tt'stin.ony to sup- port It ; and if that led the jury to a contrary presumi.tion, as it appears to have done, can this court lie called upon to say that the tact was clearly the other way- that the consideration was not good— that the assignment was ^oiorable. Upon this point the language of Tindall, C. J., in Asnell v. Brown. [8 Bing , Ul J may be cited, though indeed it is equally applicable to every point in the case : "If in any case a doubt arises as to the real value of the consideration or as to the real motive of the del)tor in making the assjgnmenff, such (juestion must be decided l)y the jury, who will determine whetuer it i;' a bona tide transaction or a 'mere collusion to evade the statute." The tact of the creditors who were to be benefitted by the assignment being ignorant of it, was also to bo found in the case of jMeux v. bewell, and Ingl'is v. Grant, cited by defendant's counsel in the argu- lent ; but this does not appear to have been considered of any importance.— Secondly, we are next called upon to pronounce these assignments fraudulent and void, because possession did not follow them. Mr. Harris has quahfied this in some measuie. He insists that the possession should be immediate and e.x'jlusive, or, if the possession can be dispensed with because die transfer was notorious, such notoriety musi be equally imnjodiate. With regard to the noto- riety, I confess I cannot well imagine anything' more strong, and it is certainly shewn to be very universal, although there were some things, such as the leaving the sign up, which, without the notoriety, m'lirlu have ^^iven a different appearance to the case. The want of possession is much to be regarded as an index to the transaction, and if not explained might warrant the strongest pie- sumption ; still it cannot of itself conclusively show °that the assignment was intended wholly as a cover, notwithstanding the vendor was left in possession the transaction ;^ight be most honest and bona fide; as on the other hand, though tnc p:operty were actually handed over, the possession, as well as the transfer itself, might be colorable. As other facts would be brought forward in the latter case to shew the real nature of the transaction, so with equal justice it ought to be in the plaintiff's power to do so in the former. The issue is not whether there was possession but whe- ther the assignment was bona fide. Had the statute intended to have made all assignments void that were not aeeompanicd by pos- ■>\^ 36 LAW REPORTS. session, it should have done so in express terras : and I do think it looks more like a new enactment than a construction of the old to decide that the want of possession necessarihj vitiates the instru- ment ; nor can I understand why, where possession itself is i ot necessary to perfect the transfer of j)ei'sonal i)ropcrty. the absence of it alone should be deemed conclusive evidence of fraud, the statute itself not having noticed it, Jiut I ipprehend the question 's now put at rest by the later cases on this point, which have all i. en 'eferred to in the ai'guments. [3 B. & Ad., 490 1 lU k^lsL, 312, 1 B. k B., 511, (j B. & C, 651, 8 Bin-., 90 j i-iiey have left at least no doubt on my own mind that this' is but evidence, and not conclusive evidence for the jury alone to decide upon. Anything that tends to shew the transfer covinous may be adduced in evidence for that pur{)03c, and this may again be met by anything and everything that disj)roves it. I come now to another objection of the defendant, which might at first seem to raise a question more proper for the decision of the court than the jury, though this, too, I am equally of opinion, be- longs to the jury. It is said that the assignment is fraudulent, and we must so presume it, as it is of all Austin's property to some favored creditor.-, to the express exclusion of lliifs estate. The right to prefer one creditor over another cannot be disputed, nor do I understand it to be ; and yet it appears to me that this ri'-ht necessarily extends to the whole lengili for which the plaintiff con- tends, and includes all that the deVendant disputes. V/here, in- deed, is the limitation at which the debtor must stop in givinn- th?t preference, or where is the case to be found that limits him at all. The authorities, as well as reason, support the proposition, that in giving this preference the debtor may part with all his property In Munn v. Wilson, [1 T. B., 510,] Lord Kenyon says : "Put- ting the bankrupt laws out of the case, a delator mnv assi^rn rJI his fcffects for the benefit of a particular creditor."' So^in Ealtwick v Cailland, [5 T. & B., 420J, Ashurst, J., says there is no objection tea debtor preferring one set of creditors to another, unless in cer- .m cases in the bankrupt laws, wlierc a trader assigns over all his property to one or more of his creditors, he is tiiereby rendered unable to pay the rest of his debts or to carrv on his business and that IS considered as an act of bankiuptcy. But when the bankrupt laws do not interfere, a debtor may give a preference to particular creditors." Then as to the exclusion of Hill's estate.Nvhich is supposed to distinguish this case, every preference may and fre- quently must operate to the exclusion of the rest, and is frpquently given for this purpose. What possible difference, then, can there TViin an avowed ouject, or uoing tne same be 'oetween doing a thin^, LAW REPORTS. 37 l1 I do think it of the old to 63 the instru- ri itself is isot y. the absence of fi-aud, the d the question v'hich have all 490, 1 l\j. 5 Bin,^., 90.] iit this is but lone to decide 'inous inaj be again be met ^vhich might 'ocision of the f opinion, be- s fraudulent, perty to some estate. The disputed, nor bat this I'ight plaintiff con- V/here, in- n giving that ts him at all. sition. that in lis property, iays : "Put- assign all his . Eastwick v. no objection iidess in cer- s over all his V)j rendered )usiness, and the bankrupt to particular -te, which is lay and fre- is frequently ti, can there ng the same tlung without stating the objeci, when it must necessarily be at- tended with the same result, and where the intention is just as apparent as if it had been avowed. Ilolberd v. Anderson [5 T. R., 1235, j goes the whole length which is necessary to support this ease. 'Hicre a warrant of attorney was given, which did and was intended to sweep away all the debtor's property from the hands of another credi tor Avho was, at the very instant, about to take it under an execution. Ko avowed object could be made more plain : the preferred creditor was made ac(|uaintcd with the intention, and the exckuled creditor Avas wholly defeated l)y it. Can any case be more in point 1 or is any distinction to be drawn between a warrant of attorney and an assignment .' Doth, it will be i-ecollected. are e(|ually within the very terms o^ the statute of Eliz., and other cases of assignment have been decided upon the strength of this case [o j\r. & S., 371. J As the preference given in that avus supported by the preference which an executor is allowed to extend to the creditors of his testator, Buller, J., asks, "whether the case of a judgment by ccnfefc-sion against an executor which covers rdf' the assets, and which is frequently given after another suit has been instituted by another creditor of the testator, did not govern this case;" as we may, I think, with the same reason ask, Tf that case does not govern the present. The reason that so much stress is laid in some of the cases, relative to the parting, by the debtor, with idl the property', is this, that the greater suspicion of an ur.- fltir assignment is thereby excited. And in Hodgson v. Newman, cited in the last case, Buller, J., says, that the bill of sale Avas not of certain goods at a stated price, but a general bill of sale of all the grantor's efiects without any valuation of them. "Whether such a fact would, at the present day, render the assignment i-.bsolutely void, may be questionable. But that is not like the case before us. The true question, I apprehend, in both cases would be much the same. From the assignment of all, or what is in reality all, of t!ie debtor's property, does it appear that, after satisfying the legi- tiujate object of the assignment, a surplus would remain for tlie benefit of the assignor in tlic hands of the assignee ; in that case the jury ;.night ceitaiuiydeem the transfer covinous. But if, not- Avithstanding all the debtor's property was made over to one of his creditors, it appeared that it was not more than fairly sufficient to meet the debt Avhich it Avas intended to secure, the colorable prc- simu)tioii is rebutted ; and then Avhat is left to shew the maia fides of the transaction. I think, theretbrc, that tlie Avholc case Avas one of fact for the decision uf the jury; and their verdict being fully supported by the evidence, avc cannot disturb it. The whofe case was submitted 5 38 LAW REPORTS. them, as I collect from the whole charge of the learned Judge taken together; aii.l, Avithout saying anything on the amount of damages Avhich rests so peculiarly with the jury to settle, 1 may aed to be pa.d out of the proceeds after pa.n.ent of the debts under the Ls^^n- nicnl. Anderson, on receivms; these letters, .lid not come un.ler an^ written en-aLvm nt to do sc, but said '^ that without i.eurrin, a„. per.ona, liability, ^ :X ^^^^t had sulhe,. i.t funds, pay the amounts as directed in the lettv,: ■ Ii was decided that rw. proceeds ut these effects in the hands of Anderson, (not beinp sufficient to meet the an.ount relerred to n. those letters,) could not bC att.u;hed in his hands as the goods ere- dus or cllects of Haivie. hooas, cie- A writ of attachment and summons was issued against John Harvie as an absent and absconding debtor, and John H. Anderson was summoned as his factor, agent or trustee, under the abscondin- debtor's act of this Province. A copy of the writ was served upon J . II. Anderson on the 1st Apiq, 1834. J. 11. Anderson appeared m the term of Easter, 183-1, and fded Ir-, declaration. Upon his examination, and after argument, the court adjudged that they had jurisdiction. The plaintiff, in Hilary term 'last, recovered final judgment in this cause for X107 Os. od. ^ John ILuvic and the iiim of Harvie and Stamper, about the 20th March, V6U, assigned to J. 11. Anderson all their real and personal property and eflccts to indemnify him for certain debts and liabilities incurred by him. After the payment of those debts and liabilities, and also of three other claims against Harvie, nnd after deducting the expenses of management, there was a balance in the hands of John H. Anderson of JL'li) 4s. 7d. After the assi.'u- ment, and beK)re the service of the process in this cause, J H Andertion received the two following ordery ^-r lettcri? of instruct tiyn from Johri Harvis i-^-* J earned Judge 'i>e amount of settle, I may ell have been LAW REPORTS. 39 gned to Anderson isequi'iit to tliose Ilurvie by iilaintiff er creditors, whose 3 under the assign- ritleii eiigiigi'mont Duld, provided ho decided that the :icnt to meet the xs tlie goods, cre- gainst John i. Anderson 3 absconding- served upon on appeared Upon his lat they had )vered final ', about the sir real and srtain debts those debts Jar vie, {iihI / balance in the ashign- uise, J. H. of instru«-' " Mr. Anderson, — Under the peculiar circumstances in ^vhich Mr. LaAvson \? placed m reference to the ^150, I do hope you will consider it as one of the hrst clamis against my estate. As Mr. L.'s indulgence to me was entirely from the confidence reposed in what I '])ad said to him, ]t 13 my distinct wish and desire that this claim be first con- sidered. Your's, Halifax, 22d March, 1834." '^'"'^ ^^'''^'^• John II. Anderson did not come under any written agreement or make himself personally liable to pay the sum of X150; but considering it as an appropriation made by JoJm Ilarvie, intended, if he incurred no personal liability, to comply Avith the direction to pay the promissory note held by Mr. Lawson, jr.. afterpay- ment of his own debt and liabilities. After delivery of the note or order, anc. before the service of process in this cause upon J. TI. Anderson about the 24th IMarch, 1834, the followin-. letter or docu-.ent writen by Harvie, and addressed to J. 11. Anderson, was presented and shewn to him : ' ''Sir,— John Leunder Starr, Esq., having joined me by .way of security and accommodation, and without any benefit or profit to himself iii a promissory note, for .£200, and indorsed for mo another note'for Jji^O, 1 do hereby authorize and re(iuest you to pay to him the said two amounts, making together i:320, with interest thereon out of any residue that may remain in your hands or under your con- trol of the various securities, stock, real estate, and debts, belomz- ing to me or to the firm of Ilarvie & Stamper, held and of ri-lt claimed by you, under the assignment and judgment in your fav'^or or otherwise, after satisfying your own claims and personal liabi- lities for and agaiust myself and the said firm. And likewise three . dier claims which you have promised, at my reciuest, in the next place to (lischarg-e so far as the aforesnid fununts to Mr. Id remain in ias a balance lerson should He had no were drawn. iisive on this ^rcat lengths )n legal and ■h are much :e relative to transfer has and particu- the assignee rs, assignees n this point, a debt was :o re([uire to '( the assign- Jolly, (the iw or equity n the order, bad a right )f Bailey v. 1- ii& Ad, i'eu to oqui- whf.'Vfc! the LAW REPORTS. 41 assignees take under a statute, and hold as trustees for the benefit of all the bankrupt's creditors, the courts thus decide, much more will we decide so in this case, where the plaintiit has no property vested in him by the operation of a statute, and where he comes to take the whole in exclusion of the other creditors. Then the (juestion here is, has an equitable assignment been made of these funds by llarvie to Lawson, -^nd could the latter, according to the language of Bosanquet, J., in Crawford v. Cur- ney, compel llarvie in a court of equity to give him a formal as- signment if any more formal one were necessary. There can be no doubt that a court of chancery would so order. The lancruaae of the case is, that Anderson considered the funds that were to come into his hands, :f any did come, as appropriated to the pay- ment of the order given by llarvie in favor'of Lawson. It is true that he says he declines becoming personally liable ; but if the funds were so, that is sufficient,— if they came into his hands, whatever he might have considered, a court of equity certainly,' and perhaps even a court of law, would have compelled him to have paid them to Lawson. Here no dissent was given— there was no rejection and repudiation of the order. In the case of ex parte Alderson, [1 Mad. 53,] there was no actual acceptance of the order, but it was retained to meet funds when they should come in. So here the order was not returned, but retained by LaAvson until Anderson should be in funds to pa 7 it ; and it is clear that Ander- son, Harvie and Lawson looked to these as the funds out of which Lawson was to be paid. The case of Williams v. Everett. [14 East., 581,) proceeded entirely upon the ground that the defen- dants ;•^//^wf/ to act upon the letter of Kelly, although they ad- mitted its receipt; but here Anderson, far from refusing, expressly assents to act upon the order, and would, as he says, have paid the money over to Lawson, had not Metzler's attachment inter- vened. Under our act, the funds attachable must be absolutely, not conditionally, those of the absconding debtor. These funds were neither absolutely nor conditionally the funds of JIarvie. They were appropriated— they had passed out of him, and he was irrevocably bound in equity to throw no impediment in the way of Lawson's receiving them, and a court of equity would have preven- ted any attempt on his part to lay hold of them. The attacher has no right to step in and abrogate equitable rights existing be- tween the absconding debtor and others of his crtiditors, haviu>r, to say the least of it, as much equity as the attacht/. Without the statutes compel us, why should we aflbrd facilities to the plain- tiff to secure his whole debt in exclusion of others ? That part of Anderson's declaration as to his refusing to become personally !'! 42 TiAW REPORTS. liable, appears to me nothing more than a refusal to accent the order in writing under an inipr^^sion perhaps that he might thereby be held liable, though funds miglit not come to his hands, but what passed bound nnn undoubtedly in equity to pay Avhen in IZ t/ t''-''^^ '•' '^'T'"'^-^ ^"^"^^^ ^^'« authorities are that J^ay. Ihen, if m equity, Ilurvie would be bound to give a more formal assignment, if necessary, -if Anderson Avould, wlien in tunds, be bound to pay Lawson, supposing this claim had not been made its appoamnce-that is quite sufficient under the authority 01 trawloru /. Gurney for this court to hoM the plaintiff not enti- tled to recover. The payment of tins or.ler was not to depend upon any contingency except that of their being funds, as was the case in Carvalho v. Burns. It was not to be plid, provided other sources of payment should prove unavailing, but it was absolute- unconditional. In cv pane Alderson, the order rested upon the same contingency as this, that is to say, the receipt of funds. inn^' IT^? '^'f' ' • "PP""'' ^^'''^ ^^^« ^'^"<^-« ^^«rc equitably ap- propriated before the issuing of the attacliment, and upon that ground alone I found my opinion, that this plaintiff c.nnot disturl) the equitable rights under which all the parties acted, and that there must be judgment for the defendant. Buss J.-My mind h^.s tluctuated a good deal since this case was first mentioned. At the former ai^ument. I confess that I ■VV.IS disposed to consider that the process against Anderson, the agent, would take effect upon the funds in his hands, so as to inalce them aval able to respond the plaintiff's judgment against the ab- conding debtor, his principal. A more attentive co'nsideration of the case itself very much weakened that impres.sion : and the autho- r ties which have now been referred to, but which were unnoticed ma great measure in the first argument, have led me, after the fullest inquiry, to an opposite conclusion. If the letters which were addressed by Ilarvie to Anderson were merely tte of instruction, and were, up to the time of tl^ piocess under the absconding debtor act, still revocable by the for- mer; then as in the case of bankruptcy, the process a-^ain^^t the agen may be considered a revocation by operation of law, 1,3 Mer. 004,] and the property in his hands must be held bound by that process to respond the plaintiff ^s judgment against Ilarvie • becau e m such case it was clearly the property of Ilarvie in the'h aSsof us agent, Anderson. But, on the other hand, if these letters am not be considered as merely directory, but amount to an appro- pmtion by Ilarvie, of the expected proceeds of his property in his agent's hands, and were no longer, when the process issued countermandab ft by Harvie tbon tl-^ • „■ >.. "'', ^-"™ issuea, - -J xidivie, inen ihe.y were not subject to the pr efl th wl pa Tl ar bii th po sti ap ar< to' fro tio cas an t wh wh 1 one )/li to accept the iniglit thereby is hands, but pay Avhen in •ities are that give a more lid, wlien in liad not been the authority ntifF not enti- ot to depend Is, as -was the rovided other IS absolute — ed upon the pt of funds, equitably ap- d upon that innot disturb ed; and tliat nee this case onfess that I nderson, the as to malce inst the ab- iideration of id the autho- e unnoticed le, after the ' Anderson, time of the by the for- against the iw, (o Mer. Did by that ie; because le hands of ! letters are ) an appro- property in !ess issued, ject to the LAW REPORTS. 43 process ol the plajntiff, because they could not then be the Koods effects or credits of llarvie, in the hands of Anderson,— who, luoad tliese, was no longer the factor, agent, or trustee of Tlarvie but who, thenceforward, must be deemed the agent or trustee of the party in whose favor such irrevocable appropriation had been made. J. he Counsel for Mr. Lawson, both in the forniev and at the last argument, contended that the plaintift' could not, by his process bmd these effects, if there even were an equitable assi^mment of them to Lawson, or such a right ac(|uired by him as would be sup- ported by a court of e(iuity. ]\Ir. AVilkins appeared to admit tli.-.t stjJl the assent of the agent would be necessary to perfect the appropriation made by his principal ; but the Solicitor General argued that the assent was unnecessary. If wo were called upon to decide this case upon this point, and were obliged to exclude from It the fact of any assent on the part of Anderson to the direc- tions contained in the letters of Harvie, I should have thought it a case of more difficulty, and should pause before I pronounced such an opinion which seems to me contrary to tlic cu/rent of cases which have been dci-ided in the courts of law. But the case upon which our judgment is to be given, furnishes, I conceive, (uiite enough to meet the doctrine contained in the authorities and esta- blished under the facts set forth, such an interest in Lawson as must be held irrevocable by Harvie, and consequtntly by the pro- cess of law. I shall now turn to some of the authorities in support oi this position. In Crawford, assignee of Streathcr, v. Gurney, [.» Lmg, 372,J Strcather, to whom the defendant was indebted in a balance not ascertained, and who was himself indebted to Jolly and Sons, gave the latter the following letter addressed to the de- iendant : '' I shall feci obliged by your paying to Messrs. J. Jolly and Sons, the balance due to m(! fur building the Baptist Collco^ Chapel, Ac, and their receipt sh:dl ])e a sufficient discharge ?o you." Jolly k Sons inclosed this letter to the defendants, re- (juesting to know when such balance would be in course of pay- ment ; to which the defendant replied, that he should be happy \o make the payment to them instead of btreather, as requested, but W!is ignor lit then of tlie amount and of the time it would bc'pay- ablo. Streathcr. after this, liecanic a bankrupt, and assignees l»iought an action against the defendant to recover the balance due him. The court held that the assignee could not recover. Tindal C. J., remift-ked : '•' ilmt ihc (kj):„daiit Imd 44 LAW REPORTS. to compel 11 formal assignment, jind no answer couW have been ^nvcu to sucli an application; and that Ijcinn; jin t'(|uital)lc asH<'u. ment, the assigns must stand in the same situation as the bank- rupt." The language of Uosancjuet, J., is still more express : " If Jolly had any right in law or e((uity against Strcathcr, upon the ordei-, the plamtitF cannot recover." A'lderson, J., referred to the ease of Hodgson v. Anderson, [8 B. & C, 842.J the decision in which 13 thus expressly stated by him, and is conclusive upon the point of revocation : " Although a creditor had a right to insist on payment to himself or his appointee, yet having once given an order for the payment of his debt to a third pcrs(;n, he had no right to revoke that order, provided there was a pjcd^e hu I he inrsui, (n whom (he author ill/ was nii-cn, that he Wi.iii.dpay the diht aaoranivr in the authority:' The case of AVilHaius v. Evc- iitt [14 East., 582, J is, in some respects, like the present in one particular, which, however, did not enter into the* jud'^ment. The analogy was striking, but upon the main point now'^undcr consideration, it falls far short of the case before cited Kelly remitted bills to the defendant, with directions to apnly the proceeds in payment of certain of his creditors, (amon./others XoOO to the plaintiff.) who should produce letters of advice from him on the subject. Before the money was received on these bills the proceeds wei'e attached in the hands of the defendant under the process of foreign attachment, but the decision of the case did not turn at all upon that point. The plaintiff brought his action for money had and received. It appears in evidence' that when the plamtifi applience given an on, he had no ilfd'^e hij Ilic rould pay the nianis V. Evc- 10 present in he* judgment, nt now under cited. Kelly to apply the uuong others, 'f advice from on these loills, -'ndant, under f the case did ^ht his action that Avhen the came due. re- rectiug ^300 h1 to them an r the bills to act upon the lat the plain- ;lirected to be I not recover, iidant to hold , but, on the so, — that no agency was ;hercfore that stand in such could be said The decision and the case 10 fust argu- ment, ) as decided upon the same grounds. But in this case of \\ ilhan.s V. Everett, Lord Ellenborough lays down, in very dis- tinct terms, the rule of law which I think applies t^ the present case, and governs it. He says : " It lies with the remitter to cive and countermand his own directions respecting the bill as often as he pleases, and tlie person to whom the bill is remitted may still Hold the bill till received, and the amount when received for the use of the remitter himself, until, Inj sonu cu^arrcmmU ,nfn:d into hij t/temsclvcs mth the person who is the objcet of the remit- ter, they hace preelnded thvmsehes from so dowj, and have oppra/matrd the remlttanec to the use of such pel-son ■ after such a circumstanee, they cannot retract the assent then hace once^ o-rren, bat are bound to hold it for the use of the aLohi- tee. IJus doctrine is precisely similar to that of IIod4on v Anderson as stated bv Alderson, J., in Crawford v. (Jurney. I he case before us differs from each of those in that very impor- tant circumstance, which relates to the conduct of the agent upon the order of his principal being produced to him. He has not sim].]y agreed with the appointee to follow them as in Crawford v burney, nor has he refused to do so as in Williams v. Everett" lie has taken, as it were, a middle course, between both certainlv much more inclining to the former, for the case states that when the hrst letter from Ilarvie was delivered by Lawson to Anderson the latter did not come under any written agreement or make iumself personally liable to pay the said sum of XloO • but " he constde,-cd It as an appropriation made by Harvle, and intcn- ^er/, if he incurred no personal liability, to eomply with the duectums rontalned In the said ./. Harries note, and to pan the promissory note held by Lmrson after payment of his owl dtM and habilities in case there were funds for me' par/wse'^ And It IS further stated, after the second letter was shewn to Anderson, written m favor of Starr but repeating his former direc- tions respecting the debt to Lawson, he was requested to accent tlie same, but refused so to do, stating - that he Avould accept no order to pay any further sum than he had already accepted, and become liable to pay, but that, without Incurrlun- any personal Imlnbty, he would, prodded he had su[jlclentyunds! ivn, the amounts as directed in the said letters. ' This conditional under- taking tlie plaintift maintains is sufficient to vest an irrevocable interest in Lawson. That Anderson did not thereby become per- sonally liable, and that it could not be enforced at law. Can there be no valid and binding assent given by an agent to the orders of his principal, except a perfectly unconditional one? Must it be one that cannot fall short of a personal liability, or be none at all' 6 46 LAW REPORTS. Looking at what did take place, it certainly appears that, excepting only ilia Iieini,^ niado personally liable, which an a<^ent nii;,'ht naturally be most an.xious to guard against, a full and iiiKjuiilified assent was given by Anderson to the parties in whose favor these orders were niade, that he would comply with them. JJocs, then, this stipula- tion respecting his personal irresponsibility to neutralize or destroy this assent, that, coupled as it is with this condition, it could not be enforced against him in favor of Lawson ? The intention of Anderson may easily ho understood. It was at least indifferent to him who obtained the i-rofcrence among llarvie's remaining creditors, and he was willing, indeed he could not with propriety refuse to pay those to whom llarvie gave a preference, provided he himself was involved in no dilliculties by it. Perhaps he may have anticipated what from llarvie's con(hict wiis probablo, the very circumstances which have occurred, and may have fluircd that if he promised unconditionally to pay these orders, in case he had funds, til!.-* this would not protect him from legal liabilities at the suit of others, and witli proper caution he stipulated for an exemp- tion from all personal liability, lie docs not refuse to pay, if he shall have funds hereafter, out of which it may be done ; on the contrary he docs proniise, in that event, to pay, provided he could do it with safety to iiiinself. His answer, in fact, amounts to this : I will i\ot l)ind myself, but 1 Avill bind the property of Harvic as far a:} I can do so ^vlthout bimhng myself, and this was all that llarvie's orders did or could reijuirc, and the assent is therefore given as fully as the appointee could urge. It meets, thev. the lan- guage of AMerson, J., before cited : "It is a pledge by the person to whom the authority is given, tliat he would pay the debt accor- ding to the authority, ■ and the authority, then, was no longer I'C- vocable, Amferson being in a situation Avhich prevented him from altering it, because, as the case states, he considered it an oppropri- (It ion hij llfirvie, and in feuded out of fhr funds h, pny t/ipnnlers. thus agreeing, even in the letter, with" the ruK; stated by Loit] Ellen- borough, in V/i!liiims v. Everett. It canno^ I think, admit of a (juestion, that such a conditional undertaking might be infe)'red provided the parties sought only to make the funds in the hands of the aij;ent a\ailal)le for that purpose, and could shew that there were sucii funds which could be psiid to him with perfect safety ))y the agent, without the risk of personal liability. The responsi- l)ility wliicli the agent avouM incur, by refusing to fulfil the contract, according to Jus own terms and stipulation, when it might be done safely, is not the exemption from liability against which he could have meant to guard himself: for then he might retain these funds though he incurred no possible hazard, and put the party entitled I that, excepting iii;^ht naturally fied assent was so orders were 11, this stipula- Vize or destroy it could not be 3 intention of 'ast indifferent ie's remaining ivith propriety !c, provided he rhaps he may probablo, the ive feared that n case he had abilities at the lur an excuip- ; to pay, if he done ; on the t'idcd he could lounts to this : ' of Harvie as 3 was all that t is therefore ther". the lan- by the person le debt accor- no longer inc- ited him from an ni>propri- rnj t/ipnnlers, y Loit] Ellen- ik, admit of a t be inferred, in the hands ew that there feet safety by rhe rosponsi- l the contract, night be done lich he could n these funds party entitled LAW REPORTS. 47 j to them at defiance. It would bo enough, under the case of Craw- tord V. O'lrney to say, that his undertaking might be enforced in e,.y the money when no personal liability mtcrfered to present his doing so; thou-h it is not necessary to decide this point. E:v nartc South shews (2 Mad. .|o, o bwaiist, J*l»2,l that courts of equity carry the doctrine fur- ther than the courts of common law, and that if a creditor -ive an order on his debtor, mul Ihnf order is shewn to th(> dobto? it Din.ls him. A : -Q are now iu a court of law, I prefer rostin.>- mv opmion on authorities from those courts which I think support it At the same tnie I must add, that Lord Eldon appeared to think the mere holding of an order by an executor until the a.ssets should enable him to make payment, wou.ld. even in the courts of l^w, amount to such an assent as would bind him. Carvalho v iiurns was i;e erred to by the plaintiff s counsel, as an authority in his tavor. Ihe decision m thiit case went vas"not necessary to decide whether the assignees would not tak>^ as trus- tees tor the defendant under the alleged assignment, hct in this case, under the absconding act, it appears to me, we must decide the question : for the plaintiff claims, under his process, to bind the property for his own particular benofit-to respond his OAvn judgment-and to exclude any beneficial rights which others may have acquired The agent in whose hands the property is placed submits himseh to the decision of the court. It. «Pems tn .^^x -itb respect to the question, we are exactly in the situation of a court 48 LAW REPORTS. of efjiiity v/ho Avould he oalU'd upon to decide between the assignee of a bankrupt and a crcchtor under such an assignment. The attaching creditor takes the property of tlie debtor in the hands of hia agent, he must tak<; it JNsf ufi U is in his hands : and, then^foi-e, subject to all the liabilities and rights which others had ac(piired in it, I cannot .sec how he can ii.C(piire rights beyond those of his deljtor l)y this process of law. w divest the rights of others in that property. We are therefore bound to inquire into the situation of all the parties as the; are disclose time of his shipping (inth April, I88a), until the voyage on which he shipped terminated, 2nd July, notwithstanding he performed no duty on board the ship after the 8th of May ; and 1 am of opinion tiiat the defendants ought to pay him the full amount of the wages. Merchant seamen have always been considered as a meritorious and useful body of men, on whose labor and exertions *he prospe- rity of every mercantile state rests, and all coniivx:'. touching them have been construed favorably towards them. The contract between the master and seaman is a peculiar one, reforiible to, and to be construed by, the law and custom maritime, "^hese impose severe duties upon the sailor, compelling him even to peril his hfe for the benefit uid safety of the ^bip, but they also look with favor on him if he has faithfully performed or endeavored to perform his duty. To ascertain, then, the right of the plaintiff to recover the full amount of liis wage," we must look to the contract, and con- strue it according to t-ie usy merchant and the ^ustom of Mari- time States. The case states that the plaintiff received the injury which deprived him of the power of continuing his labor in the service of the ship, and while be was emplo^^d in loading her. Now, in Miege's Laws of Wisbuy, IG and 19, it is stated : "In case a mariner falls sick, and +^ at it is thought convenient to carry him to shore, the law is that the said marhier shall be there kept and maintained as if he were on board and attended by a ship boy. If he recover, his wages shall be paid him fo iJic full due, and if he dies his wages shall be paid to his widow or to his next kin.'' It is not certainly .-,uid here that v/ages shall be paid up to the ter- mination of the voyage for which the mariner shipped ; but it does appear to me that the words '• shall be y>aid him to the full" can mean nothing else than his wages for the whole voyage. If it was intended that his wa-es up to his leaving the ship should be paid, then the passage would have so expressed it but trie expression is general and strong — his wages shall be paid " to the full.-' Here we see also how careful these laws were to iruteet and guard the seamen. He was not to be left on shore in a sickly and helpless state, unprotected ; but he was to be maintained and attended on in his sickness. Malyaea, who himself vvas a merchant, in his Lex 60 LAW REPORTS. Mercatoria, treating of the duties of masters of merclnnt .Tiln, and quoting the Laws of Oloron, has these word • " S T i^:^ fal s sick, the master shall cause him to be lai.I in a hr 2 with sustentation necessary :ind usual in tho .l.in ] nf c ii ! su^iu the ship until he b/healed; l^^ " ^e ^ ef 1 11 tlSfri nS "^-Vlf iHie die shall give it to th:.;^^:; neaiebt inends. J3ut if the mariner be not hurt in the shin's so- inui, as lb«0, the opinion was, that if a mariner fell sick or wi^ utylt Jr '''"\^';Pi ''''''' 1-ventedhimfromdoh.gl • utj on boaid, he was entitled to maintenance on shore and his. it i les s^ieu th fl '''"'^ ''f ''''''''' ^^•^'^^'^ ^^' «« ^^t^tled out it does siien that he was entitled to wages for some time whiJP tRM-irr ""1 '" '^T' "^^ '' ^'^^ -^t shew r.S p the right to transfer ceased. In Cutten v. PoAvell lO T R S^T which was an action for seamon'^ ,..^.. -^ ,">hji, (u i. k.^^U.) opinion s-ivs- " Thl T ^^''IJ'Z °^'^' ^'''""'^^ '^•' ^^ giving his opinion, scijs. I he Laws of Oleron are extremely favonbh^ fn seamen^ so much so that if a sailor who is agreed fm^ a voA ' be taken 111 and put on shore before the voya.f I co-mhted T. ^ of Oleron with ^V^^J^-JZ^^!!:^^^ fl^^ ly m po nt. Ihe voyage m tliat case was from Lon.Ion to Ho„ d u-as-thence to Philadelphia, and thonce back to E "la ,d A, s tVe vSS t/''™""' 'T " """^ --i™3 onboani was entirely d saWed, and was put ashore at Philadeloliia and tl„ wages were paid hiiu to the time he was nut ashow r Ltl borough who tried the ease, was of o^nira l"' rati t ft a:!; eiciuiton his part, he was not entitled to wa^es for the whnlp The jury gave .ages .p to the time the shipV/phltletrL JJond, feerjt, on shcAving cause against a rule to set ■ s^e\ t verdic and grant a new trial, contended that the plaStift w as titled to wages for the whole voyaiie-first because I vZrnil law no contract for wages was a^portionall :^^^^Z particular, by the law marine and usage of the sea conLts for se-f men's wages, such wages could not be^pportioned an d Xted" among other authorities, Malyre's Lex Merc, and Me e" l"w of Oleron observing that these were received by' all thSons^f Fu rope. The court said that clearly the law n^ni-rino ought " be foT LAW REPORTS. mercliant ships, " And if a ma- aid in a Ik dse, t, but shall not recovers health to the Avife or ; the ship's sor- So far back. ell sick, or was 1 from doing his shore, and his« deron does not, be so entitled, 3me time while at what period OT.R., 320,] • , in giving his ly fiivorable to or a voyage be )n)ph;ted, he is !ting what has otes the Laws and I feel dis- Liction of these k, COGJ, cited thority direct- ulon to Hon- i'ngland. At ved on board, Iphia, and the Lord Loug- il, that as the 1 without any or the whole. Philadelphia, et aside this .intiff was en- ^ the common 7, because, in racts for sea- id lie quoted, ge"s Laws of itious of Eu- dn to be fo) lowed in the construction of the contract, and before coming to any decision they directed an eufjuiry to be made in the court of admi"- ralty whether, according to the usage there adopted, a disabled sea- man in similar circumstances would be entitled to wages for the whole voyage, or ordy up to the time when he was so disabled. On a subsequent day the counsel for the defendants stated that he had made the enquiry, and that in every instance there to be found, a seaman disabled in the course of his duty was holdcn to be entitled to Avages for the whole voyage, though he had not performed the whole. 1.'he rule obtained by the defendant to set aside the ver- dict was then discharged. The court, in this case, adopted, recof'- nized and acted upon the practice of the admiralty, or the law ma- rituTie, or they must have made the rule absolute. ' The jury have found contrary to the charge of the court, and there can be no doubt that if the jury had ibund for the whole v;ages, instead of taking the middle course, the verdict would have been sustained. Indeed the same principle that would have sustained the one, would hiive sustained the other, viz., the right of the seaman to Avages beyond the period when he was disabled from performing his du"ty. '2 Danes Abr., 480, Avas cited at the bar in support of the right of the seaman to his full wages ; the words are : " A scan: xn is' sent out of a ship on special service— is taken and made a slave- falls sick, &c., his ransom, care, and expenses, are to be paid by the master or owner, as also his full wages for the voyage.'' And Kent, in his Commentaries, [3 Kent's Com., 18(),J not only quotes it as the practice of the English admiralty, but as obtaining gene- rally to allow full wages tliough the Avhole voyage may not have been performed. " A seaman," ho says, •• is entided to the whole wages for the voyage, even though he be unable to render his services by sickness or bodily injury happening in the course of the voyage and while he was in the perfoi'uiance of his duty. This is not only the invariable usage of the English admiralty, but a provision of manifest iustice pervading all the coinmerciiil ordi- nances."^ Chancellor Kent, no doubt, in referring to the practice of the English admiralty, had in vieAv the case of Chandler v. (irievcs, and intended to apply his observations as Avell to cases of sad(>rs Icavi .g the ship and being put on shore, as to their remain- ing in the ship. If the plaintiff in the case before us hiid remained in the ship during the Avhole voyage, his right to full Avages is hardly doubted ; and 1. can find no authority or reason for holding him disentitled to them in conse((uence of Li., being put and left on shore, but rather the reverse, —for in the one case the presence on board of a sick seaman might, and doubtless Avould, be very incon- venient to the mmti^v and mariners, and in the other case they 52 LAW REPORTS. would be entirely free from such inconvenience. In uphoklin.^ and protecting the nterest of seamen^ we best subserve tife i te ^^ est of the mercantile world who employ them ; for what can be a greater inducement to a sailor to entez- the n erchant serv ee and aitliful ly to perform his duty therein, than the knov leXe ttr^ he should be disabled in the perfbrmai'ice of his duty inTle c^'i a voyage h, is still entitled to his full wages. This unfortu m e p aintift, while toiling in the ship's dutv-while occupied in a spv vice calculated to induce injurieiof the^lescriptLS^^^^^^^^^^^^ ]": In ife St /' 'T' r'^^ • ^'^ '' ''' ^^- -aritiine bt; iKit he shall be turned on shore in a foreign country, and lose his ages lor the rest of the voyage ? On tht whole, ttr'fbre upo ole^onw " ""'' ^ '^""^ '^' P^^"^^^^^« ^"^^ti;d to recover Se wiiole ot Ins wages, amounting to £9 7s. 6d But another question of more importance and difficulty presents n ho ^TT^ '^'' P^^^"'^^' '"^'^^^^ '^ f"" ^v-ages for tL voyage W '^'^'f'^''''.''^ ^'^ ^3 against these, the ?xpenses incumd by them m he ma,intenanee and care of the plaint ff after he left the ship and was put ashore ; or, in other words, is the mastc i ^ th ^.st^ ^rr ^"' ''' ^" '''''-' '^ -' --- «s^ thirnnh.f T \- r '* "^.^«^«ary to come to a decision upon W of he 'fl'oc^.r''^'"^" ' ''''''? ^^=^^"^g ^"^^ inclinatioif in aid W I ^f 1 ' T'^'fl ^" ''''^' maintenance and medical aid. ^\c shal , however, be able to dispose of this case withou eciding on this right, and leave ourselvel unfettererl nZ T^ ngly unsettled point. 1 would throw out, however, thit the Lavs of Uleron and Wisbuy to which I have already referred ould J Imik, sustain the view I at present take of die ^uestio The mr j^;t^- "ir'^' '^ ^t' ^t'^ ^'-^^- m--- orshn-sbn.h.^: 1 ^"'^^-"^^r bemg ashore about iiio masters or ship s business, happen to be ^vounded. the ship shall be at the charge of lus cure : but if he went ashore for his pleasure th 11 ..ot be curc,l at the expense of the nuister.- Agiin • - n c- e laariner falls sick, a, -.d that it be thought coiivenie^.t, ('as in ho ca,? b .ore us ) to carry h.m to shore, the law is that t e said ,• n y a ship boy. L he recover, Ins Avages shall be paid him to the In ■;- f i T"'i'';' ^''''^ ? *" ^' ^'i^^ ''^''^ .maintained on shore and IS to be attended by a ship boy. He shall not be left w tS «uppor or attencknce in his sickness. In the margin, \' ne S ns note from Meige's Laws of Oleron : - Or elsS rcfbrr nf n biidll likewise give him such diet as is used in shin -m.l th. ... quantity that was allowed him ,vhou ho wL i„ LS! iX "'u LAW REPORTS. In upholding serve tlie inter- Avhat can be a iint service, and owledge that if ty in the course .'iiis unfortunate cupied in a ser- he received, has iritime interest y, aiid lose his therefore, upon I to recover the ficulty presents I'or the voyage, enses incurred t" after he left is the master 2iinm\ situated decision upon 1 inclination in e and medical i case -without upon a seem- that the Laws '•red, would, J. Liestion, The dg. Mariner s t ilio master's ihall be at tlie isure, he shall : " In case a as in the case said mariner and attended id him to the led on shore, 5 left without , Yiner add;, (referring to id him. He md the same th, unless it 63 please the master to allow him more." IMolloy, book '> c Jj «A ^. Cites this passage from the Laws of Oleronf " If mariners irei drunk and wound one another, they are not to be cured ai the charge o the master or ship, for such accidents are not done in the service ot the ship: but if any of the mariners be any ways wou ! dec, or do become ill in the .service of the ship, he is to be p ov - ded ior at the charges of the ship ; and if he be so ill as not^o be ht for travel, he is to be left ashore, and cave to be taken that he hath all accommodations of humanity administered to him • and if the ship be ready ior a departure, she is not to stay lor him " Ihe spirit-the letter of these quotations, in my mind, appear to be in suppm-t of the position that the mastei- is bound to affi su - tenance and medical aid to a seaman who has received, in the ser- vice and duty of the ship, any injury or wound that prevents ^his reio^.t T -^i ^^'^' of humanity themselves Z^U seem to revolt at the idea or this unfortunate seaman, with a broken le^ being thrust on shore amongst strangers in a strange land without aid and without comfort: and the law of England ii? no dcparSnt ot It upholds any principle directly at variance with the laws of tinmanity It may be asked, until what period is the support and meaical aid to be afforded. I answer at all events until the teri^ nation of the contract between the parties. Then the hardship of imposing such a burden upon the master may be urged, but this ia incident to the peculiar situation of the contracting" parties The seaman undergoes all hardships and dangers by sea and nhdit-at home and m foreign climes, for the benefit if the ownel He 3oks naturally to the ship and his commander as his ref"e and home m the hour of peril and sickness ; and how much harder -ould It be on the sailor to permit his being turned adrift w.tlloul aid, than upon tne owner being compelled to afford it during the continuance of the contract. The 20, Geo. 2. cap. 3^ ha« been uy mind bear upon the question, or at least affect the right. It H an act for the relief and support of maimed and disabled s^-,- nien, and widows and children, of such as shall bo killed slain tr drowned m the nierchant service."^ The object of this tatute wa provide a fund for the permanent relief of the person nane<^n the title : but as I apprehend it left the right of the sailo to -up untouched. Ihe sailor was Ijound to pay so nmch T)er month fr> ™is the fund contemplated by the stat4, and /^r"de ^ ^; t such payment he was entitled to certain advantages ^nUelef under it. But there was no intention of enacting a.fy nlue in terfermg with the then existing rights between m.^tor ar^ m!^ "ner 4 54 LAW REPORTS. Our decision, however, may be safely rested on the (ground that as the defendants have voluntarily provided the medical aid and attendance on shore, they shall not now bo permitted to deduct the expenses thereof from the wa.cjes duo to the plaintiff. The case (loes not state any request made by the plaintiff to the defendants tor the board and surgical aid : tiiey appear to have been pro- vided voluntarily. There wa.s, I tliink, a, moral obligation upon the defendants to make this ju-ovision: the dictate.'? of humanity itse t would seem to declare against this seaman, injured severely m the ship s service, being put on shore without any obligation on the part of the master to look after iiim in his illness. ThedefeT^- dants felt the force of this obligation, and obeved its dictates • and even adnntting theie ^Y;ls no legal, liability, fet if there was a moral ong, and the money has been paid, it cannot be recovered bacK. In Bizc y. Dickson, [1 T. R., 285. J Lord Mansfield says : ihe rule has always been, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back." 1 think the defendants were bound in equity and conscience to furnish the aid inentioned in the case, to the plaintiff: and having done so, they shall not be permitted to open the transaction and recover back the money paid. There does not appear in the case to have been any intimation given at the time to tlie plaintiff that he was to be held responsible to repay the defendants the sums laid out. or that thev were to be deducted from his wages. IJpun the statement annexed to the case, it appears that the wliole amount of the wanes due the yj^aintiff would not cover the sums claimed bv the defendants for the expenses incurred in Ijoard and surgical afd, the amount of the orraer being ^9 7s. 6d., and the latter ^18 Is. Od.. leaving a balance m favor of defendnnts of M 13s., which sum the defend- ants would now, as plaintitts, be entitled to recover I)ack from the present plaintiff, uidess this payment shall be held as one made voluntarily and upon a good moral consideration. Indeed the de- fendants stand in no other light than as plaintiffs seeking to reco- ver against the sailor a sum of money paid without his request or desire— paid by a master for his servant under pecuh'ar circum- cunistances, and without even a hint that the seaman was to be ultimately held responsible to refund. The surgeon was called in by the defendants themselves and was probably their familv sur- geon; and the nurse was employed by them. A n^aster i.s held not to be liable to furnish medical aid for liis servant, but if the ma,ster voluntarily wills in his own physician, and directs one of ins own servants to administer to and attend on another servant in sickness, no case can be found ir.atliorizing the master to deduct ( ground that Jicul aid and to deduct the T. The case :ie defendants ve been pro- ligation upon of humanity irtxl severely obligation on Thedefen- its dictates ; ■ there was a be recovered nsfield says : ly paid what at in equity I think the rnish the aid one so, they )ver back the -ve been any IS to be held or that they lent annexed ages due the lendants for mount of the I. leaving a the defend - :.'k from the LS one made deed the de- ing to reco- s request or liar oircum- n was to be ■as called in faiuily bur- ster is held , but if the rects one of r servant in r to dfidufit LAW REPORTS. 56 i I from the wages of the sick servant tlie expenses incumd Tt wn, was not intended as s,c Ct ,.tT, )• nf ''' '" "'' ?"«"'■ have reten.ed. advertinHo tS'dil^tl^ 7^.? H"Lu,dtt/ The ma\l t ,"■''' ""'"■'' "'" ?=""<"■ P''^^"" «<' «"«« l™ 'iJoT-' the sW? dieran',rtr''-'™ "'^T^^ •» ""<»*• *» ™l«- beyond luowa foe to be ," ade rZ?" "nf ft" •' '"'T^f'S 'hi. .Jfl^. .hedefe„da„tl"d:?s„;x sSiuti^tair: i^;,^:irr;h:: «*. e the sador was ashove, for the whole oharle for I oarf is^mde On tie whole therefore, I am of opinion that the plSiff is emi tied to our judgment for £ti 17s (j,j jua.ntra is cnti- has thus necessarily been put ashore, olm recover the wtTefinoun volved in this c,«, is, as I vie.- it, of some impoWlce'^ ^ tec' < ems the whole shipping interests of the area commemal natl" outtsTrictSl^!"'' 'f *""«'' "-^ *^' "(^^^^Z nghts ot a hardy and meritorious class of persons whom noli^v humanity and .justice alike commend to our protection ' ^' Xhe hrst remark that has occurred to me in lookin.r i„,, ,, subject arises from the insufficient aid with whi h wta"l &n,i;i Ml by those authorities to which wo proneriv leso i-t^n?) K , ■ v alone w. can be governed. We haveTce vfer ■«! to he LTtt an eminent lawyer of the Uniteci States, fronrwl, ch it wo, d tif pear that this question had been fully settled in that countrl bv : Judge of great reputatKin and of/uUties well "ualSlt task hi Kent, Com. 142, cites judgment of Jiuke Stow 1 w! must always be happy on all occiioL to avail oSLS sud! fnt£.r„"; "bT "• "i '" ''"'l'^ *^"- ^'^■""wXTen auu learnmg. Uut even if wp. onnl^ v'^""-")'"' fi- - • > • r that decision, we ought fl.t to hav; W S'rubmitt:^' toT :[ LAW REPORTS. large, (and I am not aware of its being within reach), that wo may know what are the precise grounds upon wln'ch it is founded, and how far thej are applicable to ourselves. The Ene;lish authorities are strikingly deficient on the subject, though it might be supposed that the question would have been of frequent occurrence and hav"^^ ^"^^ '^ '^ '^« longs : and the expenses of t ' ^°'\'" ''^''^ ^^«^ ^'^^^^l be- to such por^Lt eSinl ^ "''"'T '"t ^^"^ '' ^^^'^^ P^^son dent and direi at the nifnVr"' f' '^^V'' P"^^ '^^^ ^^^ P^^^i- 80 Amoved anCn '' twTf tr^"'" '',"'^? P^^'^^" «^^^" ^^^ tion on the part of the shfn or out''! '""" '^-TI^ " ^^^'^^ ^'^^^'g"" reh-ef of the seanl therein ^'' '^'' '''' '"^'^ ring others toTo this mn^hf ' ^T "^"^"essity for requi- wag^. of thc^lttTSS^t "xX Vu^t t; T ^^^^ tingtoiotclL'n se mrt^^l.:^^^^^^^^ ^^^ ^-- -I- sent. The 18th secrvtafsttl^ ''f ^''■'' r ^r xK'i?rn ^^^^^^'^^^ ''- ^^^^^^^ chant service be irfm-wf'^'T'" ^^P^"^^^ '" ^he mer- the United Kiidom to a»v^^^^^^^^^^^^^ that every ship sailing from keep constantly fnToaJd IP ""«• ''""' '^"" ^""" ""'^ suitable to acddents Lid dis^^^^^ ^^ «"ft<''e^^t supply of medicines Bhall be renewed'L fme to^t^^^ ^^'^^'^^ and in case any defauh shall berlT '^'", '' ^''^"'^ ^^^l^^^^^e; plied such mecSr r n et any 0? Tf "^ '' ^T^ '''^' any hurt or ^niurv in the sPrvL. ^?^*i? i 'T""^" "^'^^^ ^'^^^iv^^ vicling the necessSy sur'ic^rfn? a- '?'P\'^' ^^^P^"«^^ ^^ V^o- and medicines Xdithf?! ^^f^^^al advice, and attendance shall have be ; eted or s SlTav'. f ''"f 'V'^ '^ "^^^^ ^^^ part of the UniterKingdom ,harbp r ''''"^^, ^''^ '' ''"^^ master or owner of Sror on. nf ^r' ""^^^^^^''^J^^ by the tion whatever on that accZit from tLT' "'"'^'''' '^"^ ^^^"^■ clause makes it obligatory on the Lne^ To '""''' • ^f' ^^ '^^' medicines, &c., for the seaman LT? I ^I^''^^^ *^^ necessary the ship, ;s dire d by tCcTa'useC^^ ^'' "^'"''^'^ ^" seama/is not brought^bLk if hTCnVh^ t^^^ ^t^ ^ be cured, it does most undnnKfo^i/".!? f.v''"^ '' K^L abroad to be cured, it does most undoubtedly estahlSh « rvijr uiuciwii rule aman or other i)er- ihall, in doing his [• be otherwise hurt ) be taken of him, [governors (of the London, and tlie hereby required person so hurt or ch hurt as to be 1 such vessel be- n or otlier person aid by the presi- le trustees of die ■person shall be Y a legal obliga- br the care and Jessity for requi- uction from the —if the law im- >f parliament |t> ; the laws rela- sases as the pre- "And wherea-s or the preserva- ed in the mer- ip sailing from I shall have and ply of medicines voyages, which bund requisite ; )r keeping sup- 1 shall receive senses of pro- lud attendance !ed of until he back to some Jfrayed by the ut any deduc- ages. If this the necessary s provided in ises where the left abroad to vuuciwiii ruie I LAW REPORTS. 59 from that cited from Molloy. By the 44th section it is enacted, that when the seaman is left ashore at any place abroad, from sick- ness, &c,, his master is to pay Inm his wages up to that time. Taking these two clauses together it would seem that a now rule was then established deviating no less from that settled in the case of Chandler v. G reaves than it does from the ordinance as cited by Molloy. This statute does not extend to the Colonies.— it has been re-enacted in part ; but though the 18th section of the Eng- lish act is to be found in ours, the 44th section. I know not why, has been excluded. There are, no doubt, many considerations which entitle seamen to a more favorable regard than domestic or menial servants : yet it may not altogether be inapplicable to tliis subject, to see how the law stands with respect to the latter. For- merly it was held that they were entitled to that right which is now claimed for the seamen. In Dalton's Justice, (p. 129,) it is said: " If a servant retained for a year, happen, within the time of his service, to foil sick, or be hurt or lamed, or otherwise to he- come jum potens in corpore, by the act of God, or in doing his master's business, yet it seeraeth that the master must not there- fore put such servant away, nor abate any part of his wages for such lime." And in Seaman v. Castill, [1 Esp., 270, | Lord Ken- yon held that a master was obliged to provide for his servant in sickness and in health, and was under a legal as well as a moral obligation to provide him with necessary medicines, and to pay for such as were administered to him. The moral obligation none may feel disposed to doubt ; but, as Lord Mansfield said, in a case prior to this,-- Newly v. Wiltshire, fl Esp., 739,]— the question now is^, what is the law I and it was decided by the whole ('ourt of King's Bench that the master was not liable to the overseers of the parish for money expended in the cure of, his servant. In Win- nail v, Ackny. [8 B. & P., 247,] the same doctrine was held by the Court of C. Bench, and the opinion of Lord Kenyon — who, it was said, was misled by his humanity — was overruled. The observations of Kooke, J., in this case, may, to some extent, be applied to the owners of vessels, at least of coasters and small craft, upon whom the law must equally operate. •■ If," says he, •'the general principle contended for by the plaintiff were to be adopted as a rule of law, many persons who are obliged, for the purposes of their trade, to keep a number of servants, would be unable to fulfil the duty imposed upon them by the law. It must be left to the humanity of every master to decide whether he will assist his servant according to his capacity or not." It is, however, but proper to add, that in the decision of this case, a reason is given for fixempting the master from this liability to provide for 60 LAW REPORTS. his servant, wliich is less applicable to the casP nf th. cV • and seaman, namely, that by holdbl the master not t^TT servant is not necessarily leff destitul^,, a "the u ^ of ho' parish to provide relief, and more for the a.lvanta.rnftV,? tliat their claim should be i(r«m«f Ihl '"'vantage ot the servant to remove then. But I think ami r 3 7 ™*"'™' "u'horitjr .hat 1 an, .,„t called «„«: ,;'S\£^^T;Lrpl^ tilt required from the n urv receivpH hv l.;,r, .'''*"'. ^°^ P'-^^n- That obligation has been con Swthn^^^ '"""'" ni«}mri °in. .« ''^^•iipiiea witli, and those necessaries fur- nished, ihere was no contract between the mr*.V« tK.!r/t: i money, therefore, expended by them as it iouuZTl } g-onnd oi- an action ..insttheLman ranlufalW^^^^^ tev of set-off against his claim; and m this view nf thl ? supported by Mellon v. Norman, [4 C & P 8^1 !]? t T ^^ xXisi Prius case, it is true, is expilssly m point ^^ Tbif ' '^^'"^^ " tion of assumpsit for .ages, t^hth "unT the pY^^^ he same defence was set up as in this case ; and C^'elee J b^ fore whom the cause was tried, thus expresses InWlf'^' ' not prepared to say that a master is bouS To P o^- df « J ""J their menial servan^^d^ titnl 1 tul t l^rS t saying that they aie bound so to do. But if J SJT I judgment for the whole amount wWefhe^iLs '""""' '" 1 f the ship-owner r not liable, the the duty of the ;e of the servant idvantage by no i not only with lade these ohi-ev- l respecting my Hcient authority in so thinking, lis point. With voyage, I have t'd. As to the ation on the de- ies of the plain- 1 their service necessaries fur- ' that the plain- tt-'d in the caso the part of the w will raise an "or them. The not form the illowed as mat- the case I am hich, though a hat was an ac- plea of set-off, iaselee, J , he- rself: 'a am vide a menial servants he is oy masters for authorized in laster, when a n, 1 think he wages, unless d servant that cannot make is entitled to (U LAW REPORTS. lilLLliNGS vs. RUST. lliiunj 7'vnjt, 18^)8. Whi'i-.,. n,ni,>n f„u.i.l(;■ ''™''"" icT t^cfolW, tho nlait^t »■ notes 1, , .^ '""" ™">i"nfe' to the Ict- .«Imi»»i,,noftl,ec,.crt"Xrr,n ","' ^"'vut.tages tl,„t suel, 'lef.-n,l™fs „«.n Td™i «" f £'i '^ Lt'tl', ':'?'« '"" '"' "'» uiipjiid. ^^"^*^ ^"^^ ^""t the notes were (luctualincr. ' "'"''■' """' P''n<''plra, laivc been very debt wa. unpai 'riiu " r'';;:ir:„^'T,'"",' """ ''f; struct iustici V icK nortc.rai '"'" T^' ■'^''''''''''- '^'^'' •^'^■ adhere to it un I'^^iT Lni .^ ^''^ '^'' ^^'"''^« ^« benefit whicli tliis u eflil sf t', to ''^'Pl-;'''^'" ^'^"^"^"nitj of the • it ; indeed so mc u ^erSl ^ ' f 'f'"^''^ '' ''''''' "I'^" the nice distii.ction Xch l*^ ^v=^« "itrodueed ,n eonsequencJ of whieh presented the nsel vos Lt f W uT^ 'I Circumstances whether the statute av.s not "li \""-^*J^^^''^ ^<^«" questioned for before it ^std eZ iL'^tTt f "^""^ "'^ Z^'^" ^^^^ ' simple contract debts, ho^wem- tr/Mhev n ^l ""'"^ ''• ^'"^ ^''' paid : but whether the statute ™n "^ " * ^'''? ''"'='"'«'^ """ or not, becan. a .^tr::?::;:.^!;^^^ ^^ ^ '^^"^^ ^- ^- 4;rtX;^^S:^r!;!L^^^^^^^ -- .ears a,o cording to the circumstances of^S i i^ r .? '^" J"^^!^^^' -c- them; and have Lnaduallv adontnr! . P'^ticular case, Avas leading with the practical" good he Sto w . ? T'l '"" ""'''' ^'°"«'«t«"t . ference tJ the ubstS Vu ?ice wllh i " '"'^'."^ I' T'^''''^ ^'^ 1"'^'- statute must sometimes viohtV A ' I "'*• ^' '^''''''^' ^hat tl-. pn-ncipal cases de.S unda the .^^"^m-'^A '''''' '^ '^^' In lleylin v. IlastinorVdrP^I l \Vw J"'^'^->' ^^^^'«^ ^^^^^^^ ^oods, butsaidt^'i^ rof^uch^-af ^"' '" ^T'' ^'^ 1-J you,'- was held by .dl he Jud es f ^1^^/''''^ ^ ^^''^ whose opinion was not ^iven to t ke 1h .l" u^ 'l"''/?''i''* ""''^ on proof of tlie delivon/ of fL i \t '^ *'"^ "* '^^^ ^^'itute thuU hare acLtled^ ;!;" of H.f V '"^^''l^^' '' ''"'' '^^^° ^'^I'l which the jury nnght find ,t verdict fo/thl pluh'tift! ^ '"'' ''' LAW nBPORTP. 03 ^rulant himself 10 notes wt'jo ' they remain in^' to tlie Ict- 5'es that Huch "g out of tlic le notes were n out of the r'O been very 'hipscd, ixiy. tted that tho law would n. The ab- he courts to unity of the confer u|;on isecjuencc of to make in rcumstances questioned than good ; 1 to pay his niained nn- ncc for hira years ago justice, a'c- ras leading ! consistent ice, in pre- d, that th'^ luc ')f the remarks. I'd Kaym., receipt of md I will xcept one 30 statute also hold did not of I'ornise on In Yea V. lurrakcr, (decidcd-1 Geo. 3.) [2 Eurr, 1000 | it was ruled hy Mr. Justice Noel, upon tho circuit, and confirmed hy the court without argument, that an acknowledgment of tho debt after the commencement of the action, takes it out of the sta- tute ot nmitations. In Quantoch v England, (10 Geo. :?.) [5 Burr, 2(;;}0. Gown, .»48,1 Lor.l-MnnsfieM .=ays : "The slightest word of acknowlcd.^I nient wdl take it out of the statute." wifll^j^v''''^'"" Vr^^'^i"' ^^- P*^'^' ^') f^^^"'-' '^^''J evidence that, withm SIX years, defendi-nt .said to a man whom he met at a fair hatheeame there to avoid tho plaintiff, to ^vliom he was in- •lehted, was held sullicient to take the case out of the statute of iinntations. ovdt.{^W''?T'''"'^' (-^^««- 3,) [2 T. R., 7(10,1 a nonsuit ouloied by Lord Kenyon, where the plaintilf produced a letter (^ l aftor«™b, (5S Geo 8^ .>hc>,a,,,,l,c,l to tor payruout shoni;- l.oloro tl,e aeti 1 Im-,' ' w^^uV.^' :;„'',:".'';'';''■• ',"",' "f ,"""-^0 then, beciLa ;;; 1 i Elh.noorou«n, at the trial, hei,! ,he wor.is suf&ic, £ to t\i , ' / case out ot the statute, -au,! i„ deei.ii,,.. n„on , r I „ ,i i; < hot or p ai,,,tiir aside, ho said : " As tj th'^suiVe'i ■ f ™;: one the pron„se, n was an aekno>vlc,Iy,„c,u hv I't dl „l'„ t that lie liad not paid the liill, and that he e?,ut,| rot „,■, i the Inuitation ol' d,e statute is only a pi s i.^ i " . " , m 'fZ ^^a«Wledgn,ent that ho l,asL, [.aid hJsho.i.ii'S '[^ piamtilf s , emand was founded nnon an a.-eountahle nwint •'< ,1 August, 180a : " Keeeivod of J!r T. W«v<:,^ tm tT? " " or on demand- A witness proved tha i .LSU ,',0 aS''"; delendant tor plan>tili; shewed him the reeeipt, am as] d l if l" admi ted h,3 signature to the receipt. \Vitnoss s-iid •»,.!, ,, yon have paiil it.;; defendant said ",i„, ™: i iievi , d and never wonhl ;' and a.lded hesides, " it is „„t « ,1. n „ ' hiw shal nialje me pay it.'^ It re-iui es so, e le y ^ in ' ' " ^ »nht oty,) to distinguish this ea'se froni lip" .' T, t oi ' , e 1 ayley in lb]_: yet in tins latter case tlie decision was in f.vor « the defendant. Ji,,. tlie courts had then h,..-an to e le ner ple..ity into which their o,,«it.,Ue decisions we, eietdinfn,^;': LAW REPORTS. 65 'cs t!iti:^r(f. it Ujijon tlie ''uie igaiii said, the (nor Iheir a/il- :jct, it was no- frorri Avhicli, 1 i'.as not quite taken of those to llie prc3e- (r>3 Geo. 8,) iction brought ;lanc. ami !is in favor <•! the per- ling them. The Court of Coi m :>mmon Pleas had declared the year before, (ISlo.) ^ard V. Hunter, [«] Taunt., 210,] Uii.j the defendant also prevailed und.er his plea of the statute although ;i dividend had been paid within six years upon the bill upon which this action was brought against a solvent partner out of the effects of one of the drawers, who had become bankrupt. In this case, Lord Ellenborough made some very forcible remr.rks U[)on the evil consc(|Uonce which may iioAv from the principle esta'- bh'shcd by Lord Mansfield, in )\liitcomb v. Whitney, '[Douo-. C>r>2.\ viz., that a joint contractor may be deprived of the benefit' of the statute by an act of his co-contr' tor, which amounted to an ad- mission that the dol>t was unj --a ])rinciple. however, that almost necessarily arose from the doctrine that th true construc-- tion of the statute was to presume payment 'vrter six years, and thrt \vhenever that {)resunjption was rebutted, ti.e law at 'once rnisod the implied promise to inxy on the part of all who were ori- ginally liable as well a.s on the party making the acknowidgment. Loi-d Elleal)orough left the bench on the" following year.' Had he remained he would probalily remedied, judiciallj^ an evil, for which his successor wisely provided a legislative reuiody in 1S20. In Gibhuns v, McCasland, (1818), |1 13. & Aid,, (il)0. ] where the guarantee on whicl. the action was brought was shewn to the defendant, he said, " he remembered it perfectly well, and Avhcn he was ol)le it should be arranged," held suifieient to take the ca.se out of the statute. iN^o (juestion ^ras then made about the neces- sity of proving the plaintiff's ability. L( Swan v." Lowell, (ISIK). |2 B. k Aid., 750,] the action was brought upon a note of hand to which the statute was pleaded. When the note w;u^ exhibited to defendant within six years, plain- tiff said, '• You know your own handwriting " Defendant looked at uie note, and rej)lied, " You owe me a great deal more money, and I have a set-olf against it."' Plaintiff said, '• furnish me with your account." I should be sorry to swear to a debt if I owed you anythin.g. If you do not furnish me with vour account, I sliall put this ir.to the hands of my soxicitor." Deikidant replied, '■ you may do as you please— I sJiall defend it. Bayley and IIol- royd, J's., held this not sufficient to take the case out of the sta- tvite. Best, J., was of a diHerent opinion. That lea)ne AIil., 141,) which action ■ Klinissioii to take the casn'onT "^77"°': i'°"'"'' ""^ "'-ceptor, the action. T^is wiV t h™ 'l V '''' "'"^ ™''<' strangers to tlie a verdict' Mh"t,'c "j, ho„"*:i'".!-C' ."r P''™'»-°t'^'™'l protect persons wlii we.e s ,nm!',^ ',„ , " '""'.»'\™ P-«seJ to have lost the eviclenco of s & Tt ''•■"' *"' ''"'"'"" '" no such tliin.» for tlicro I, TjF \ '•'■'•'• ''O'^vcr, there is tence of ,hc=d b hin si. tl7 f^'fS"}"''' »? the e.is- "■ raise or,V«,/« ..o^lr^^rX"^,^^^^^^ '"'"'' "^ '""'' '' SnS;:(lH2f):trB'';^ P^;;^ 'r^l -3-.-= -. banner v. him in Mountstephen V Brook 'J "" "■'"" "'° ""^"^^ -^"l ''^ aone : and Ba^, J^l^fert^li^f^, ^troTu 'i'c Trt'" in HiUoy s V. Shaw. fV Taunf fi19 ] ,?i " i , ^' '^- ^^''^'^■^' (courts had not confine tio^n :i vl . ' I "'" ^ ^'^"^""*« ^^'^'^ the notices the cases in w ich hot S>i ? ' 7^^ 1 '^'' ''^'^''^ '^"'^ Bajs Gibbs, C. J - nt if o ; y'\^T ^^''^^"- " ^ ^g^'ee." coild see ail the con e ^t !" n^^' "^"^!/^ ^*«P«- ^-^^ seen it better to adhere to tlio mtn J f'''f\^^'^y would have n:.e,npt to relieve ^n'X^::L:''t^ZSfrfT ud.is ]n the same case of Beale v Nin. tl t1 "^ •^' r' ^"'■^*'^'" case out of the statute .s upon the St ft ,1^ .H t?^ '''^'"^^' '^ IS the worst description of ovUUnnJ! ' f . conversation servation to which,^I Si'i ^v rT X^"" " ' ^■"'r^^"-^^' «'> Pittam V. Forst^r, OM^ ^ B^^^ Sf'r^ ""'?'''' the courts ^vere still Voino- hiX tn tt. ' "T ''/\'^ shews that had they adhered to the "mW ni '''!'" ^^ ^^^^ ^^'-^t^te, for Brook, ^eve^ll:;:;,^^^^ ^ntsteph^ v. Iwlgment of the existence of the ,)^l>f , ' ! ' ' ™ aoknow- .-ix years would of itsellWain V'h^ • If *" ■' '"'""S'"- '"thin have resorted to t f^e S, tbrX't T™f "»'> ^'''i'''- againat tlie husband and ,vi b too 1 ten " f", "'1 '^*''"' "»» .W«, the aok„oivl«;.nnent of tZ b,; I , ? ''' '^ ""^ '"'" ''""' "itZ^ aft.. t.,e=n, ™L,t ^ tSSe^ "'^ ^^^' "^ ^'"' .at^o'dis ositio'rt'lre'JeiLt C?' !f'! "^'^-'^ "« bation, .«^ Lord KHoaho^S hl^or^^o;^- f ^^^^^^^^^^^^ c. awards (1825,) '^•, 141,] Avhich lie acceptor, the contained in a 5tran,frers to tlie iaintiff obtained was passed to ;he debt but to vvever, there is Jnt of the exis- 'f- of which is ■, in Tanner v. ibove used by position to ad- lad heretoforo 1 C. J. (;ibbs, ents that the e statute, and ;o the defen- /'I agree," oir steps, and / would have atute than to 7) '^-j further 5 of taking a conversatmn ct."— an. ob- aspont. ' shews tliat ' statute, for ntstephen v. an acknow- Lnger within not, I thir.k, action was e wife dffm 3bt was still inifests the ^vith appro- hitcomb v. LAW REPORTS. 67 S* Y?) ''' ^'''? wr!^ ^' l^^'^^''"" ' ^-^"^ '^'^ ^^'^'"Ic court agree ^tgh^niirtoT :sr - ™^^'"^^ '- '-^^ ^'^ ^^-^^^^^ ^^'■- Jl^u^^l'' ""-j^''''^ Z^^-'"^)' f'^ 1^^"S- 280,] the words proved ^vele : I know I owe the money, but the bill 1 -rave is on -i ro acknowledgment did not take the case out of the statute. The ob- servations of Best, C. J, to winch I before alluded, were : - I am sorry to be obhgcd to admit that the courts of justcc have been dcservc.1 y censured for their vaccillatory decisions on the 21 Ja c. 1. He subsequently adds : "The mere acknowledgment of a debt IS no a pronnso to pay it. A man may acknowledge a debt ^vhK• . he knows he is incapable of paying, and it is contrary to a sound reasoning to presume from such acknowledgment that he promised to pay it; yet, without regarding the cir?amstances ui' ler which an ackno^vledgment was made, the courts, on proof of it have presumed a promise." "It has been supposed '• he con- inues, -that the legislature only meant to protect persons who had paid their debts out had lost or destroyed the proof of pay- ment. From the title of the act to its very last lection. evcJy Avor.l ot It shows that it was not passed on this narrow ground '^' In tne case of Scales v. Jacobs, (1820) [i] liiiur. (147 | Parke' J makes similar observations: "It has been truly ob'servcd "' ho says, • that the conflicting decisions to be found in our reports upon the statute of limitations, reflect no particular credit upon Westminster Hall: and I am very glad that the courts of law seem inclined to retrace their stops as far as possible, an.l to o-ot back to the plain construction of the .statuto Ilavir."- tliis vi'Jw niysolt, 1 was happy to concur with the Judges in A" Court v Iross, 111 endeavoring to assist in so desirable an object " In Ayton v Bolt, (1827,) (4 Bing. 105,) the words proved were : • I would be happy to pay you if I could. If yiu will recover a debt due to me from Gueiney, you may therewith satisfy your own debt." Here the defendant both acknowled<^cd and evinced a desire to pay it at the time he made that ackiTowlcd-- incnt, yet his plea of the statute protected him. '^ InCollegev; Willock, (1827.) [4 Bing. 313,] it was decided til, t where a debt which had been barred by the statuto but revi- ved by paying the principal part of the debt into court, l- o claim tor interest was not revived. r ^;:;IT"''; •'■/• f"'^f; (^^^-o n^ ^o^. & By., 540, & b. & <-,(.)o.j which, Lord Tenterden says, was decided with much consideration, (sec his declaration to this effect in Brv.hn.s v iiumpton, 9 Dow. k By., 740,) lias put the quest ion arising'upon m 68 A*' LAW REPORTS. a mere acknowledgment at rest. The words proved to take that case out of thestatuie, were: -I cannot pay ti.e debt at present, hat 1 wdl pay it as soon as I can/' The jury -avc a verdict for tl»e p amtiii; and that verdict was set aside beivl^i it lastm I be only a conditional promise, on which the defen.lant could not recover without pro^•ing the defendant-s ability to ,;ay LutKobartsv^Kol>arts {im, just before Lird Tenterden-s actO (^ ^f- A: P, 2lKy,] displays the determinaiiou of the courts o =K here, I i^nght ah-iost say rigidly, to the statute. There the plauit.li produceu the following paper, signed bydeiendant: "I owcyou.4iU0 diaries Jiobarts. SOtir July, 3821 August lah,--.Leceived, £,ij. Charles Robarts '• ' The action ^w mmglit to ix)cover botii^ins. _ The defendant pleaded the statute Jie nis deinanu of £m), six years not having elapsed since the receipt oi the second; and, notwithstanding l^odi were written Z!^'-!''!'"' f^''^ '-'f '^' "<^J^owledgment of the first debt must Ime staiea him in the lace when he signed the receipt for the £oO Lorough, J , wiio tried the cause, told the jury to find for thedexoi.lant upon tne demand for :W00. lie suidi " It is now (.ecided that tiiere must be a, positive promise : I held out a-^ainst .1 as long as 1 could luit it having been so decided 1 cannoT now put thcM.uest.on to the jury The jury found a verdict conform- ably to tne learned J udge s directions. Leave, however, was given to the piainthi to move: the motion was made in the ensuing term, but die court retused to grant a rule Nisi thereon UouW V bhirley, [2 Moore & P., 581,.] subsequent to Kobarts V. .woail., was (ecided upon the same i.)rinciple : and the cases of TT ^ u'f'i ^^'^!"^-,^^'':l and Edmonds v. Downs, 12 Cr. c. Ma., 4oJ,j decided under Lord Tenterdcn's act. shew that the courts continue to exact the same certainty as to a specific uncon- uitiona promise m writing under that act, as they had latterlv uecmed necessary m {.remises made verbally. _ It appears, then, thai the court at VUvstminster. by a train of de- cisions commencing in ;i61o, and continued, with /few .occasional but not recent exceptions, to the present day, have established tlie l)u,suiy' lord Tenterden"ri .ion of the courts ;utc. There the ' deiendant: " 1 3 821 August rJie action ^vas iaded the statute g chipsed since ^tli were written ; iivst debt must receipt for the jury to find for tid: "It is no^v leld out against d I cannoi now •erdict conform- ever, was given e ensuing term, -lent to Robarts md the cases of Downs, 12 Or. shew tliat the specific uncon- \y hatl hitter] v y a triiin of dc- il'W (jccasionid established tlie !iee of a deljt, de under cii'- ihe ])arty ma- ia.y it, will not further, th .'■ ii plaintifi' ni'ist ional promise, lie to set aside lonsuit, should ^ LAW REPORTS. The letter proved by Coffin, which is much better 69 evidence than me loose conversation upon such a subject, on which Bayley, J., m Beale v. iSlnd, casts so just a slur, shows the extent to which the defendant was disposed to go respecting the notes upon which this action was brought. The conversation which is stated to have taken place about the same time, is (^uite reconcilable with the let- ter, and there was nothing proved that could sustain the action upon that letter. Independent, however, of the letter, to what does the verbal de- claration, stated by Coffin, amount .' " It is very hard, (the de- fendant says,) to call upon me to pay these notes. Harding ought to pay tliem ; but if I must pay them, (i. e. if I can be compelled to pay them.) I will if I have time given to me." Can we find in this declaration either a positive promise to pay, which Borouf^hs J said was necessary in llobarts v. Bobarts, or was it made" uider circumstances which indicated the defendant's willingness to forego the benefit of the statute ;-I think not. lie declares that another ought to pay ; and even his conditional promise to pay, if he has time given him, is founded upon the basis of a liability which did not then exist. I have already said that the plainti.T can derive no additional advantage m tins case from the admission of the .a-contractor • mdeed, under the view which the courts now take of the statute of limitations, I do not see how the position that the promise or ac- knowledgment of one co-contractor shall bind the othei-s, can here- after be sustained. If we are to look to what the defendant upon the record himself said at the time that he acknowledged that the debt was still un- paid,— and if, notwithstanding such acknowledgment, the plaintiff may fad, as Lord Tenterden said in Tanner v. Smart, then I do not see how any acknowledgment of one co-contractor can deprive another, who was not privy to that acknowledgment, of the benefit of that statute. I do not apply these latter observations to cases where payments have been made by a co-contractor. Payments are much stromrer than mere verbal declarations ; and although I think the observa- tions of Lord Kllenborough upon Whitcomb v. Whitney can never be satisfactorily answered, and that nmcli of the hardship of makin- co-contractors, who would otherwise be protected by the statute^ liable because payments have been made without their knowledcre by one for whom they might only have been sureties, yet that cale IS still law. "^ The decision in Burleigh v. Scott, (1828,) fS B, & C. 361 dis- tmctly recognizes it ; and Manderston v. Robertson, (182U,) 9 n LAW REPORTS. [4 M. & Ry., 440, J was also governed hy it ; indeed, in Lord Ten- terclen ;s act, wfnle co- con tractors are sheltered against each other's promises, the eflect of a payment made by any person Avhatever is Jett precisely as it W!is before the statute. > lIiLi., J —The decisions upon the statute of limitations have been anything but satisfactory, 1 had almost said intelligible. 1 ley have been jarring and contradictory; different Judges have ^iken different views of it, and its policy; and. in fact, the same -Judges have seen occasion to over-rule their own decisions. On the argument a multitude of cases have been cited on both sides ujiiny, it not most of them, having a tendency to confuse rather than attorfl light. 1 shall, however, without examining all the cases— lor 1 tJiink It quite unnecessary— rest my opinion on the case of lanncr V. .^mart, [6 B. & C. (103,] decided in 1827. In this many of tlic former decisions are investigated and examined, and tlie dootrino in it is most consonant to principle, and ought to .ro- vern tlic present. That was, assumpsit on a promissory note, da- ted ll»th January, 1816,— payable 30th Noveml)er next- plea iiwtassumpsfi wfra sex atnios. The plaintiff' proved that, in Ibl.i, tile note was produced to defendant, ond payment of it de- manded, and that the defendant said, "I cannot pay the debt at present, but I will pay it as soon as I can." There was no proof 01 any ability on the part of defendant to pay. A verdict havin- been found for the plaintiff, a rule to set aside the verdict and grant a new trial was allowed. In giving the judgment of the court, Lord Tenterden, says : '■' The (juestion in this case was, whe- ther an arhioirhdqmmt which implied that the debt, for which tnc action was brought, had not been paid, was an answer to the statute of limitations,— whether this is such an acknowledgmpnt aji, without proof of any ubility on the part of the defendant, takes the case out of the statute. There are, undoubtedly, authorities that tlie statute is founded on the presumption of payment — tliat whatever repels the presumption of payment is an answer to the statute,- and that any acknowledgment which repels that pre- sumi)tion, IS, m legal effl-ct, a promise to pay the 'lebt.-aml that thougli such an acknowledgment is accompanied with only a comli- tional promise or even a refusal to pay, the law considers tlie con- dition or refusal void, and the acknowledgment of itself an uncon- (ht cmal answer to the statute." His Lordship then adverts to the conilicting authorities and to the statute, and says, "that thou^di al tae actions mentioned tlierein -trespass, detinue, trover alid others-are put on the same Iboting, yet it is only in actions of assumpsit ta.'t an acknowledgment has been held an answer.'" He says, '-that Lord Ellenborough, in the case of Ilurst v. Parker, I LAW REPORTS. d, in Lord Ten- iiist each other's ■son whatever is imitations have aid intelh'giblo. nt Judges have I fact, the same decisions. On 1 on both sides, fuse rather tlian all the cases — on the case of 827. In this, examined, and iid ought to go- issory note, da- )cr next; plea, proved that, in ^'ment of it de- iiy the debt at e was no proof verdict having he verdict and dgmcnt of the case was, whe- lebt, for which answer to the ^knowledgment efendant, takes Ij, authorities aymont, — that answer to the oels that pre- ibt, — and thi\t 1 onlj'' a condi- ijiders the con- self an uncon- ad verts to the "that though ic, trover and ^ in actions of answer,'" lie rst v. Parker, gave the true reason why an acknowledgment in trespass was inap- plicable but applicable in assumpsit : because in assumpsit an acknowledgment of the debt is evidence of a fresh promise and that promise is considered as one of the promises laid in the decla- ration, and one of the causesof action w\ioh the declaration states/' J lis Lordship concludes : " All these cases proceed upon the prin- ciple, tliat under the ordinary issue on the statute of limitations an acknowledgment is only evidence of a promise to pay : and un- less It IS confornnible to, and maintains the promise in. the decla- ration, though ]t may shew to demonstration that the debt has never been paid and is still subsisting, it has no efleot The Muestion then com. •. to this : is there any promise in this case which will su[)port the promises in the declaration / The i^romises 111 the declaration are absolute and unconditional to ]iay when there- unto requested. The promise proved is, ' I'll pay as soon as I can ; and there was no evidence of ability to pay, so as to raise that which, in its terms, was a (jualifictl promise, into one that was absolute and unconditional. Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay mav and ought to be implied ; but wh'3re a party guards his acknow- ledgment and accompanies it with an express declaration to prevent any such implication, why shall not the rule express /an J arU ces- suretacaum iii^ply:^ The court made the rule for a new trial absolute. I do not find that in any of the cases since decided, this doctrine has been (luestioned, certainly not to introduce one more flivora])le to the plaintiff, for the courts have been leaning more and more against permitting stale demands of this kind to be set up and thus, in some measure, annulling the statute. This very feelinr/ was the cause of the passing of Lord Tenterden's act in 1828" \\hippey V. Hillary, f5 C. & P., 209,] Edmun.ls v. Downs [2 1? ' '*ro^J-^''"S ""■ ^^"'^^-y' 1 2 M. & P., r,81,j and Li'nsel V. Bonsor, [2 Bmg., N. 0.,] decided in 1885, are all in accordance with lanner & femart. In Linsel v. Bonsor, the language was, you know I gave up all my affairs, and therefore I "consider I have nothing to do with your claim, nor shall 1. I wish you would make me a bankrupt,— this is in your power. I reiet your arresting me. You had the same as the rest, wliy should I pay you in preference to those who have executed the deed I had rather go to jail than do so. I shall rely on my own integ- rity. Imdal, C. J., says; "Is there any acknowledgment''/ A distinct and nm/nalified o.rknmrl.edus to his lea- less Rust had mt may actu- 't, there is no t LAW REPORTS. 73 promise in this letter on the part of Harding to pay, and if so, it can have no effect as a promise against the defendant. But if there is no promise to pay in this case, is there not a dis- tinct unqunlified acknowlele. " Character here, i:3sa,d, " was the only point in issue ; that was public opi- of imiuiry. He therefore thought, that what the public thought was evidence on the issue as i' then stood." ^ Nothing in the above case would warrant putting a (luestion re- unon^a tbir"'"'" ^f^^"'^ ?fP°^^'"^' thi existence l>f that fLt upon a third person s having told the witness that it was so. Had n^r'nlT r\f '"'i'-* t™ generally reputed and believed m the place where the plaintiff resided, that she had had connexion ll h /' f^j} """"' ?"' ""«^'* ^^^^^ ^«^^« ^^'ithin the rule laid down by Lord Kenyon, because that would be testimony respectin-. the character which the plaintiff bore in the community in^h ch she resided-of which any competent witness might give testi- mony ; but as It respects a particular fact that can only be proved by the parties cognizant of the fact, and not by one who received his information from the party who said he was cognizant ofTIi a^party to it, I think therefore the Judge properly refused to allow the question to be put. The second all'thLl St' .Sv themselves into one, for if it was right to receive the evidence of the T)lam iff s pregnancy in aggravation of the damages, then the Judge's directions to the jury were right; if it was Simg to re^ erne such evidence, then of course it was wrong for the j'udge to tell the jury that they might consider it. Seve?al objections have been made to the reception of this evidence in aggravation of Z mages : 1st that the plaintiff is herself particr^^cnmiuis ; 2nd that It will have a very immoral effect if we allow damacres to be increased m consequence of an act to which the plaintiff herseU consented ; 3rd, that the parent or master of plaintif! with whom she was ivmg, might recover damages, for this injury, in an action per quod servitmm amisit, and it would be unjust to allow double damages to be recovered. I suppose it will scarcely be denied, let the law be as it may, that in point of fact it is a greater injurV to a woman for a man to refuse to fulfil an engagement to marry her after he had got her with child, than it it would be if he had aban- doned without disgracing her ; and as the action itself .or breach of promise of marriage is maintainable, the jury in assessing damages tor the injury will m this, as in all other cases, consider all o.imut. s that the plain- ed to prove that ■where she lived to state what he lould not be al • 50113 ; but Lord i. " Character was public opi- i a fair subject public thought I a question re~ nee of that flict t was so. Htid d and believed had connexion 1 the rule laid lony respecting unity in which ?ht give testi- )uly be proved ^ who received lizant of it and 3fused to allow actions resolve he evidence of ages, then the wrong to re- the Judge to bjections have ivation of da- imiuis ; 2nd, amages to be aintiff herseK iff with whom /■, in an action ) allow double be denied, let ater injury to to marry her he had abau- lor breach of 3ing damages ir all circum- LAW REPORTS. 75 stances of mitigation or aggravation which may lawfully be submitted to thetu. Now, as in the very nature of things, a woman thus aban- doned in a state of pregnancy, is, in point of fact, more seriously injured than she would be if not left in that state, it rests with the defendant to shew us that in point of law she cannot recover an increase of damages for that aggravation of the injury. No case has been cited to shew that she cannot. The case of l*aul v. Fra- zier [3 Mass. 11., 71,] only shews that a woman cannot sustain an action against; a man for seducing and getting her with child, when no promise ot marriage had been made. But in that very case, Parson, C. J., says: "damages are recoverable for a breach of promise of marriage ; and if seduction has been practised under color of that promise, the jury will undoubtedly consider it as an aggravation of the damages." Neither this observation nor the case itself bind us, but it has been brought under our consideration by ooth sides at the bar, and we willingly avail ourselves of the able opinions of such a man as the late Chief Justice Parsons, of Mas- sachusetts, upon (questions decided under laws so similar to our own. It was clearly his opinion, then, that although seduction of itself, when there was no promise of marriage, could not sustain an action by the person who had consented to be seduced ; yet, if it had been practised under a contract of marriage, for the breach of which an action would lie, that it was an aggravation of the damages ; and the note of Mr. Christian, in 3 Black. Com., to which we have been referred, shews that he considered the law to be the same in England. In thi^ opinion I fully concur, as it re- spects the argument to allow women to recover damages for the voluntary sacrifice of their own virtue, will have an immoral effect that applies well to such a case as Paul v. Frazier, where no con- tract of marriage existed ; and it is well commented upon by Par- son, C. J. But we must consider Iioav great a difference such a contract makes in the situation of the parties; ; — they meet each other with greater confidence— their intercourse is conducted with less reserve ; and a woman may, with the most innocent inten- tions, admit of endearing fiimiliarities from a man to viiom she is betrothed Avhich might sometimes lead to a loss of self-command, and betray them into a breach of chastity which neither contem- plated and which both may deeply deplore. Such rai occurrence may be attributed rather to weakness than depravity. Let me not be understood to be an advocate for undue lenity to such trans- gressions. Both will deeply pay the penalty of their misconduct in their loss of mutual respect and their degradation in the eyes of the virtuous members of the community to whom their misconduct becomes known. But. as in such cases, the man must be nrpsnmpd 76 LAW REPORTS. to be tho insti^utor to the offence, it cannot afford him any ex- cuse For not fulHllin.,' his ongagoniont— on the contrary, renders tho perfonuiince of his pron^se still more imperative, and tho non- performance ot It a greater injury, rcijuiring at the hands of a jury a greater compensation. ^ As such an nnfortunate occurrence a'j j>regnancy takintr nlace after a promise of marriage may, in my opinion, he given 1/ evi- dence in aggravation of damages, go do I think it might be g.ven in evidence in mitigation of (hunages if extraonhnary circumstances should enable a plaintiff to give such proof If a man after having promised to marry a woman he thought possessed 'of the usual delicacy of her sex, should discover her to be so wanton as to court his embraces, and pregnancy on her part should be the result of an intercourse which she herself had sought, most persons would think him prudent in declining to take such a woman for the partner of hjs bosom ; and although it migh* not fully iustifv rescinding the contract, as the proof of intercourse with another man wou ! do, yet, I think, if such an extraordinary case were proved a jury would think a plaintiff entitled to but little dama- ges. I mention this in support of what I deem a just and creneral rule, that, wherever an action sounding in damages is sus'* .ined everything immediately connected with the transaction, which is 110^ of Itself a distinct and substantial cause of action or a distinct and substantial matter of justification, can be given in evider -e in aggravation or mitigation of damages under the general issue un- less there is some positive law prohibiting it. I know of no posi- tive law prohibiting the proof of this fact. It is in the nature of things an aggravation of the injury attendant upon the breach of the promise of marriage. The evidence, therefore, was ri^rhtly received and the jury were rightly instructed to consider it, unless tl\^ third objection must prevail. Now, I cannot see how the right of this plaintiff to receive such damages as a jury think that she has sustained, can be affected bv the circumstance of another person having been injured by the same occurrence. If a man by one blow should injure two per sons (which might happen,) would he not be liable to both 'If A. should throw a stone at B., which should pass throuirh C 'a carriage and bre..k the platc^glass windows of it on its passage to ±5., would he not be liable to B. for the blow he received from the stone, and to C. for the injury done to his carriage .« If a man beat my servant an- deprive me of his services, may I not sustain an action against hini for the loss of service, and the servant for tlie assault and battery.' And if it be the case that any other person than the plaintiff has been injured by the defendant's con- (1 him any ex- uutrary, renders e, and the non- hands of a jury cy taking place c given iu evi- might be g.vcn y circumstances f a man, after )03sessed of the be so wanton as should be the it, most persons ch a woman for lot fully justify se with another nary case were )ut little dama- ust and general 38 is susi ined, iction, which is on or a distinct in evider 'e in leral issue, un- ow of no posi- n the nature of 1 the breach of c, was rightly isider it, unless to receive such be affected by injured by the jure two per- ! to both ? If I through C.'a its passage to 2ived from the 3 / If a man I not sustain e servant for hat any other Pendant's con- LAW REPORTS. i I duct in this transaction, in such way as to enable such person to sustain an actii :i against hirn. the court and jury will decide upon that case whenever sue'- a- i.-., js brought; but the right of such party cannot and ou; uL Tiot ♦- aft'ect tlio rights of this plaintift'. Should such action be I-rougl t by a father or relative in that form in which a jury may ta! •♦ iijju -ed feelings into consideration, there can be rso doubt th:A they >' also take into conP'"deration what the dprrjudant may have alrei' 'y suffered in conse(iuence of his mis- conduct, so that ext'innit.ry damages will not be twice awarded against him. It is not in the powei of c-i'-ts to sift too nicely the motives which actuate juries in the jury room ; it is our duty to see that the action can be sustained, and that nothing but le<^ai testimony ib produced in support of it, or to aggravate or mitigate the damages. When that is dont, it is their province to decide upon the (juestion of the damages ; and I think it will generally be admitted, that in 9!) cases out of 100 they decide justly. I think that the rule for a new trial should be discharged. Hill, J. —On the argument for the rule, it was held by the court that the evidence rejected on the trial was properly rejected, and the plaintiff"'s counsel was relieved from any argument on that part of the case. The defendant's counsel then insisted that the verdict for the plaintiff, in this case, ought to be set aside, and a new trial gran- ted on two grounds. 1st. The improper admission of the testi- mony as to the pregnancy. 2nd. The misdirection in instructing the jury to consider that fact in estimating the damage's. These are resolvable into one, for if the proof of pregnancy was properly admitted, it would follow that the fact was also properly left to the jury. Though this is, strictly speaking, an action of assumpsit, yet, in reality, it rounds in damages, and is intended to afford a remedy in damages to a party not only whose pecuniary interests have suf- fered, but whose feelings have been lacerated and wounded ; and no one can deny that the wounded feelings have been constantly given in evidence in these actions, and that you are not confined to the bare proof of the contract and of its breach. You may she\v, for instance, the peculiar circumstances under which the promise was made, as that it took place in the presence of many of the plaintiff's relatives and friends ; as that the plaintiff declared, at the time, his intentions were never to fulfil the promise made — merely to wound and delude ; or that a refusal to fulfil a promise, made in good faith, took place under circumstances that must of lecepity deeply injure the feelings. It may undoubtedly be shewn, and it is every day's practice to shew, that after the refusal to per- U ,^ IS LAW REPORTS. mav t7Tr' '^1 P^''"^^^ P'"'^^ "^'^^^ •'^^^ languished. You r5,e infLt'''l'' or any aggravating circumstances attendant dan?s CO. '" V ''' ^''"'^ ' ^' ^"' ^"" ^^"^^''^ «'^^^ the defen- hoo ,1 J^'- ' r^ Pfg"^"^.' '-^^ on« of these circumstances, th.hr f '? "'^'.'^ ' \' '^''T^'' «^"«t be the necessary result of the breach of promise." Now, I say that pregnancy is one of the ZZ^7^ f f'^ "^^' ^"' ^"^ -i;.onnecLd^ith [he p, W not leasonably o be separate.], and ought to be considered • unless l"Z\Z.T^ Jown by some stubborn^rule of law as to be^onE the onnov IT f'f '^' 'T''' ''""'^ ''' ^'''''^^ ^"^^ ^o be denied he 'km 1 I ^ of ^l^ewmg the cn-cumsiances connected with them, the damages here are the necessary result of the breach of promise nofolT/rf fV. -^^- promise was proved to have bee'n mad the defrn .n./! f ' t' fl i-^r?gT^-^ ''■'' discovered, and after of mom^^' ,ri' ';\«f gr^^^-^t!"P^^«"«'stance attending this breach b shuTr. of " • ''' ^^Tf'' '^7''''''' '-^"^ justiccM-equire it to be shut out of our view. Is tiiere, then, any principle of law recu '- nng us to exclude such testimony.' I find nc^ie : rfor ha anyXe been produced to us diat could lead us to think that sucTt Ti r^io^;^ ':i^" ^^'^^^^^- , ^^.^^^^^^ ^^-^ -« actions. llw tn V ^r' ''^''•^ '" *^^' "'"" t^^^^^'^^l distinctions of the law— to be, in effect, actions on the case fo. the recovery of dam- ages to repair, as far ..s the law can, the wounded feel iL of the emale, and to punish .he author of them. And will anyone sy that to gam the affections of an innocent young fema"J imder^; promise of marriage, to ruin her in a too Lfidlnf momem ^^^ be admiS ? TH "" ^''" ^'""J^ "' ''^''^' such testimony has been fZLd ' Jn " TT' '' '^''' ^^' '^'''' ^"^ "^ ^'^i^H it ha. •SssS 1 -r '''° ^''? '''S"ed, that if such testimony be admissible, you will permit the plaintiff", indirectly, to recover damages for a cause of action which the lav would r;o permit her recover dn-ectly • that an action of seduction will not^l e a th^ suit of this plaintiff. '' The fact of pregnancy coulu not " Ls t e ^Ttli^"^^^ "Lavebeenex^anLlon'thisrecoii; uTouM thilfa t mi ht nnf 7' T' ^ ''" '''' '^r'' Pr^P^^r^^ t^ «-y that t s tact might not have been put on this record properly for a ats?f^'3^^^^^ ''r T^ '\^" r'"^^"« ^^ -t'- ^"^ f-'-i^ clnno ' n.t ? 7' '"''' ^'' ^f'" "" Pr«"""«« of ^"arriage, secondly does it follow, necessarily, because you could not have alleged the pregnancy in pleading, that fact Zy ;.ot be gtn n LAW REPORTS. guished. You mces attendant says the defen- circumstances, ssary result of y is one of the the promise as idered ; unless to be confined id to be denied ted with them, ich of promise ive been made red, and after e. Is not the ng this breach e require it to s of law requi- ' has any ease it such testi- actions which ictions of the very of dam- elings of the any one say, nale under a moment, and I its author ; to be made, estimony has which it hag testimony be ', to recover >t permit her lot lie at the Jt,'' says the I'd ; it would to say that operly; for, I to a female )f marriage, been. But Id not have be given in 79 evidence ; or is it an inflexible rule that damages can be recovered for that only wh:ch strictly falls in with the allecrala. Take the action on the case brought by the parent, or one standing u^ lorl C!.T/M 1 ''""' r ''"i ''"'''"'''' «'«'^'^- '-^ha" action, strictly speaking, goes for the loss of service; and you must, to sustain It. ^'ve proof of service. But who ever dreamed of con- hnmg the damages to the strict letter of the declaration. The lan- guage of Lord Elden, m Bedford v. McKowl, 13 Esp 119 1 is explicit that you arc not confined to the a/krraL 'Aat was an action on the case for seducing the daughter of the plaintiff'. The plaintiff s counsel were proceeding to examine witnesses as to "the general good conduct of the plaintiff's family-what other children tl V V'"J \''\ '^' 7"', '^^''*'^ ^y ^^'' ^"J»^y complained of. Shepherd Serjt., for defendent, objected to evidence of this nature, lie sau ,t was an action for loss of service, and that the evidence should be confined to shewing how far the plaintiff was damnified by /OSS of service. Lord Eldon-" In point of form, the action only purports to give a recompense for loss of service ; but we can- not shut our eyes to the fact that this is an action brou-dit bv a I>arent for an injury to her child. In such a case, I am ot" opinion that the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent lo. ng the comfort as well as the service of her daughter, in whose virtue she can feel no consolation, and as the parent of other chil- " drcn whose morals may bo corrupted by the example."' His Lord- ship summed up to the jury accordingly, and a verdict passed for X4UU. Hei-e, then, the eminent judge refused to confine the plaintiff stnctly to the nature of the case, or to what was expanded on the record. It will not be said that any pleader, in such a case, a leged in his declaration that the defendant got his daughter with chi d whereby the morals of his otb.r children were corrupted and he lost and was deprived of the society of a virtuous dau-Ater' Ihe action professes to recover damages upon no such ground yet ( amages are constantly given upon those very grounds. ^ The same doctnne was held in Irwin v. Dearinan, [11 East, 2r.,J wherein XlOO was given for five weeks' loss of service of an a.lopted dau-h- er and servant. Lord Ellenborough says, - the loss of servicJis lie legai oundat.on the action : and though it may he difficult to reconcile to principle the giving greater damages on the ground of the servant being the plaintiff's adopted daughter, yet th? prac- tice is become inveterate and cannot now be shaken ' Jo confine the proof; then, strictly to that which is alleged in ho declaration, is not the rule in all actions: it is not so i?i case lor the seduction of a daughter. Then, why make a rule in the 80 LAW REPORTS. present case. "We shall inflict a wound upon public morals,' urges the defemlant's counsel, " if we sufter the plaintiff thus vir- tually to recover damages in a case where she shews herself to have been guilty of a breach of the la,ws of morality."' The inadequacy of the law to afford proper security to females in such cases, has been a subject of regret, as remarked by jNlr. Christian and others ; a circumstance that ought not to induce us to narrow the grounds of relief and protection. An action for seduction, unaccompanied by a promise of. marriage, will not certainly lie at the suit of the female ; the law has so sottled it, and perhaps wisely, and I am content to take the law as I find it. Perhaps it is pro- per to refuse to entertain an action for seduction merely. It mi'dit be a want of that strict care we arc bound to have over the public morals, if we Averc to alloAv a female to come into court, and, with- out setting forth any extenuating circumstances, shew she had per- mitted herself to be seduced, and claim damages against her sedu- cer. But the present action, I conceive^ stands on different grounds ; and the plaintiff, though not justified, yet shews a case that all must, I think, admit, is extenuated. Surely the unfortu- nate female who has been betrothed, and has yielded to the impro- per solicitations of the man under a sacred reliance that he would make her his wife, stands on different grounds from one to whom no such promise has been given, and who had no such expectations. I can see no danger to morality in our letting in the testimony given in this case— no fear that temptation may thereby be held out to incontinence. Every case nmst be decided on the facts proved in it, and the jury weigh the testimony, and award dam- ages commensurate with the injury. I find, then, neither case nor principle against the plaintiff, and on that ground I should be con- tent to decide. But we are not left without both case and principle in favor of the admission of the testimony : j\Ir. Christian, in his Notes on Black. Com., (3 vol., 143,) has this strong language: " It appears to be a remarkable omission in the Law of England, which, with such scrupulous soloitude, guards the rights of" indi- viduals, and secures the morals and good order of the connnunity. that it should have afforded so little [)rot('Clion to female chastity. It is true that it has defended it by punishment of death irom force and violence, but has left it exposed to perha})s greater danger from the artifices and solicitations of seduction. In no case whatcer. unless she has had a promise of marriage, can a won.an obtain any reparation for the injury she has sustained i'vom the seducer of her virtue.'" Here, then, we have the authority of Mr. Christian, and no mean one surely, that a female wlio has had a promise of mar- riage, may obtain, in an action like the present—and in that only, ^S LAW REPORTS. Liblic morals," intiff thus vir- ticrself to have he inaileqiuicy uch cases, has 1111 and others ; w the grounds inaccompanied 3 at the suit irliaps wisely, haps it is pro- ely. It might ver the public art, and, with- V she liad pcr- inst her sedu- on different shcAvs a case y the unfortu- to the impro- hat ho would I one to whom 1 expectations, the testimony ereby be held on the facts 1 award dam- ;ither case nor hould be con- and principle ristian, in his ug language : ' of Eiigland, ights of indi- e connnunity, nale chastity. ith irom I'oi'ce f danger froui ise whatcer. in obtain any seducer of her .'hristian, and mise of niar- in that only, reparation for an injury/ done by her seducer. But, we are asked, still further to leave the sex unprotected, and to deprive them of their only refuge against the wiles of base seducers who are to be permitted to do the Irst injury to female character, and to go un- scathed. But further, the case of Paul v. Frazier, (3 Mass., R., 71,] (which, in the absence of any conflicting English case, and taken in connexion with the opinion of Mr. Christian, may, I think, be ftirly considered an authority,) expressly recognizes thf^ pro- priety of the reception of such testimony. The declaration, in that case, set out that the defendant began to court plaintiff under pre- tence of marriage ; having gained he affections, got her with child, and forsook her ; whereby she was greatly injured in her reputa- tion, and hurt in her peace of mind. The plaintiff obtained a ver- dict in the Common Pleas, which the Court arrested ; and from that decision the plaintiff appealed. The court were of opinion that judg- ment of the Common Pleas ought to be affirmed : and the judgment was accordingly arrested, because the action was not given by sta- tute, and there was no principle of law to support an action on the case against defendant for seducing plaintiff under a false pretence of courtship and intention of marriage. Parsons, C. J., in giving judgment, says : "As the law noAV stands, damages are recoverable for ;•. breach of promise of marriage : and if seduction has been practised under col')r of that promise, the jury will undoubtedly consider it as an aggravation of the damages. So far the law has provided, and we do not profess to be wiser than the law.'" For the reasons to which I have adverted, I retain the opinion I origi- nally held, that tliis testimony was properly received and put to tiie jury ; and, therefore, that the rule should be discharged. Rule for new trial dischari^ed. KEYS vs. POLLOK. y^<^sVr.7■ Term, 1830. Wlivri- ■u.'tion uas brnuidil n i [■.oinissmy Note lliirtcon years nid, held that tUe following answiM' to a qunslion rcspeclniji' tin; Notu : "I have hiul considerable accounts with the pliiintilT, iinil if, up .n llitmc dealings, thore is iuiythiii(j due to liim, I am willing to pay -itn," will not be a sullicicnt acUnowIedgmeut to lake tlie case out of the statute. Assumpsit .. a Note thirteen years old. Plea, statute of limi- tations. Halliburton, C. J., said — I have looked in vain for a promise to pay this note in the report of the evidence given at the trial 82 LAW REPORTS. upon a promise to pay whatever shall h!'., ^^e defendant rests tlcalings then alluded to S^ i i ^"■^'''^ ^"^ ^^ ^'^^ "P^n the ture of the c^^er'at on' in wh ^ fi?''' '* ''• '"^'^'"^ ^^°^ ^he na- ascertained SucTf mo^^. ^ P''"^^'' ^^' ^«« "«t then nude thirleen y^s beTr^ IfTi TT^ '''T T'' ^ "«^« a case the plaintiff must mov/tVo '5 *^.'"; ^^^"^^^^'^ ^» «"ch blish the bflanc Lrre ifeeln l?n'''""T* '" ^"'^ ^^^^«' ^"^ esta- of Tindal, C. J. in &;!"; wXm's'aS^' /? ^" ^"1">"« that "when the action is brou^h ftT,' ^ '^ ^^ ?^"g' ^^^^'J (iuent acknowledgment of thr^!? f «'\ycars, and the subse- a^etion, the plainlZLf tfk: ^1;;^^: J^l^^^' f ^^^ 2-0 the acknowledgment witho^ a^^ S c ^.^S of accounts^arnorr;;': iThLr'"^^"^- ^^^"^^"'^'^^ before. ^ -^ ^^® ^* ^'^"•^* g'ven thirteen years uld not pay; and ins^T^ p^S^ h. seeming injustice of particular cases to induce them^o resor" to astute reasoning to evade the provisions of the statute, they en- deavor to make the decisions conform to its import and spirit so as ; can^out the mtentions of the legislature L\ not T^^Z ' dtrnntl ^YTf ""i *^"' "^'"' ^^^ S'^J'^itor General has 1 ll ;-;f' ^T?*^' '^''•"'^^'^^'^ "«t '^Pon an acknowledgmen , of debt from ;vhich a promise to pay may be inferred, but upon a : aistmct promi.. to pay. The decision of' the case, tWore.^rests upon this question : has such a promise to pay been proved as will avail the plaintiff and bind the defendant, .fotiithstaSing the stl tute and compe him to pay this very stale demand? Here.er- ^nnly It cannot be saicl, that there is proved any unconditional pro- unse to pay. If there is any promise at all, it rests upon a Ton- tmgency of their being anything due. There is no proof of any specific certain sum being even r^emanded: the whole conversation nnl l^ V' *' ^««;""t\"i^^ettled, and any payment is put upon the contmgency of anything being found due on a settlement. It has been admitted m the argument, on the part of the plan.tiff hat no case precisely analagous to the present, is to be fbund in Uie books. 1 he Solicitor General commenced by citing, and ended oy dec armg his chief reliance to be placed upon*; Heyling v. Has tmgs, [Cow 54 Lord Ray., 389-421. j But that case is e'uirely distinguishable from this, and seems to be rather against than for the p am iff. It was assumpsit for goods sold. After six years, the plaintiff, executor of the person who sold goods, went to the bnf di'/"? f'^'^ff '^ T""'^^ "^™'^S '^^ ^^«""* for them ; but defendant denied that he had ever bought the goods of plain- wm mv ft ' ' 'n "'"i ^^''^'''- " ^^ y°^ «^" P^'«°« yo^r debt, I Tn lis r , ^^* V;^?.^e court were of opinion, that this promise, on proof of sale and delivery of goods to defendant, took the case M m J LAW REPORTS. out of the statute; though Holt., C. J., doubted whether the pro- mise ought not to have been declared on specially. Now the de- fendant did not refer to any unsettled accounts-or to any pay- ment raade-or to any offset ; but wholly denies the receipt of the goods and myites the plaintiff to prove that fact if he could, and t/ieuAxQ would pay. The plaintiff took upon himself the onus of proving ever,jthh>rr that the defendant disputed ; there was no call upon the detendant to shew anything There was, in fact, 7iof/nn <>■ m dispute but what the plaintiff took upon himself to prove and did prove. According to the statement of the defendant himself he must have been indebted to the plaintiff The delivery of goods being proved It was utterly inconsistent with the defendant's own statement ot facts, that he should not be so indebted. I have said the onus IS on the plaintiff, and that he has no right to call upon the detendant to be an actor. Has the present plaintiff borne this onus / Has he shewn to us that there is anything due him ' burely it is impossible to say that proving the handwriing of the defendant to the note shews that upon a settlement of accounts anything is due ; for it is manifest that it may be perfectly con- sistent with the state of facts as proved, that Keys is now on a settlement of accounts, indebted to Pollok. Taking all the con- versation of defendant with Logan, can any one say, with any show of certainty, that Pollok's account is not greater than Key/ It will not do to say the defendant might have shewn it, had such been the case, for I repeat, everything lay with the plaintiff It would be equally inconclusive to urge that the plaintiff could not go into these accounts and shew where the balance lay, for that would place him merely in the position of other plaintiffs who are una.ble to prove their case. Suppose that this promise had been declared on specially as Holt at first thought ought to have been the case m Heyling v. Hastings, how would the plaintiff have stood / VVould the proof here given have supported his case as the proof m Heyling v. Hastings certainly would on a special de- claration. In the case of Tanner v. Smart, [G B. & C 603 I the promise was, " I cannot pay the debt at present, but I'will pay it as soon as I can." The plaintiff gave no proof of the defendant's ability ; but the court held, that without such proof the action could not be maintained. The existence of the debt was admitted but the defendant was called on to shew nothing. The promise proved in Tanner y. Smart, "Pll pay as soon as' I can." as Lord lenterden says, " was in substance saying, prove that' I am able to pay and then I will pay. That would have been what the mo^ mise was taken to be in Heyling v. Hastings-a conditional pro- mise, and when the proof of ability should have been criyen and U^f^-^.--"-:^"v%^'^C^ '^ -v-^ vhether the pro- Now, the do- or to any pay- le receipt of the if he could, and elf the onus of ;here vias no call in fact, 7io///ino- f to prove, and 3ndant himself, ielivery of goods defendant's own d, I have said it to call upon intiff borne this ling due him / dwriing of the snt of accounts perfectly con- 's is now, on a ig all the con- say, with any ter than Keys', vn it, had such e plaintiff". It ntiff" could not B lay, for that intiffs who are )mise had been t to have been plaintiff' have ed his case as n a special de- C, 603, J the It I will pay it he defendant's Dof the action was admitted, The promise 5an," as Lord bat I am able what the pro- nditional pro- en given, and LAW REPORTS. not before an absolute one." Now, the promise here was equivn- 5 lent to sayjng, prove that anything is due on these accounts and I ^ will pay you, which is conditional ; and when proof was given that ^ anythmg was due, it would be absolute, and not befbr? If the ^ plaintiff here, instead of producing and proving a note, had exhi- bited an account containing many items of charge for goods sold I and proved the sale and delivery, would it be said that such proof I would shew anything due the plaintiff' on a settlement of accounts I between him and defendant. It might certainly shew the char-es I correct upon the plaintiff''8 side, but it would give the go-b^^to I that of the defendant, who expressly and directly refers to boththe ; accounts of plaintiff' and defendant. In all the cases at all similar to the pi;esent, I find that where a defendant resists payment upon some affirmative or conditional excuse, the plaintiff' is always held : to negative, m the most positive, distinct and clear manner the grounds upon which the defendant rests, or to shew beyond ques- tion the condition performed, Thus, if a condition or qualification 13 annexed by a defendant to his admission of a debt, as A-h-re he states It waj discharged by particular means or in a particular way the plaintiff must negative this ^lost clearly, and the defendant must refer to the means so that there can exist no mistake la Leale surviving partner of Long, v. Nind, [4 B. & A., 5G8 1 to take the case out of the statute, it was proved that Nind went to iiea e s office, when the latter said, " Mr. Nind, I believe there is a bill due from you to Long & Beale." Nind said he believed there had been a bill, but that they had received the money and tliat there was a balance due to him from Long's executors Loner was a partner in a banking concern with which Beale had nothinS to do. At a subsequent meeting, Beale said to Nind, '-If vou have paid this bill to Long & Beale, I have received no account of it and I shall not be satisfied till you shew me the receipt ant iiailey, J., impossible that any mistake should exist. Now It IS not only not impossible that Keys may be indebted to Pollok according to the proof in this case; but, taking the admission aito' I 86 LAW REPORTS. gether, I thmk it highly probable that, at all events, the whole amount of the note is not due ; for it is manifest from Logan's tes- timony, without referring to the admission of Pollok, that there were accounts entered in the books of plaintiii' between these par- ties. Logan says : " I was employed by plaintiff to make up his books and accounts. But we are not at liberty to resort to con- jectures or probabilities; the plaintiff was bound to give us cer- tainty ; his evidence ought to be clear and special ; ambiguous admissions are not now permitted to obviate the wholesome effect of the statute. The conflictinrr decisions in England gave occasion to the 9 Geo. 4, cap. 14, a wholesome act, which sweeps away the effect of these loose, verbal, and most unsatisfactory admissions often made upon a sudden, and unguardedly, and without the maker being aware of the true state of tie facts ; and compels a written promise to take the case out of the statute, and to bind the promissor. The writing, then, speaks for itself, and is not liable to have that coloring given to it, to which hasty conversations are so subject. Time is given to a party to examine, reflect, and de- liberate. If, then, in cases where the debt is actually admitted to have been due, and alleged to have been discharged in a particular way, the courts have, so strictly held plaintiff to negative the mode ot payment alleged, and have not called on the defendant to shew anything, how much more necessary is the call on the plaintiff for certainty in this case, where there is no admission of anything being due. If it should be urged that the co' versation referred wholly to the note and not to the account, I answer, that assuming It to be so, It would make no difference in my opinion. Had the defendant said, " If there is anything due on the note. I will pay," the case would still be within the statute. Keeping in mind the lan- guage of the court in Bealev. Nind, it would have been incumbent on the plaintiff to have shewn that no payment had been made. Can we, with certainty, say that Pollok has not made payments on this note which the plaintiff has both omitted to indorse and to give a receipt for; or if a receipt were given, it has not been lost through accident; and shall we put the defendant in such a position, that, trom this conversation, the whole laboring oar shall be thrown on him. Had the plaintiff exhibited this note to the defendant, and the latter had said, ''you know I have made payments upon this note, for which I have had no credit, but if anything is due I will pay," could we let the plaintiff recover on such an admission as this, the face of the note ; if he could not shew the payments alleged by him in the admission, upon which alone he rests for placing his case beyond the statute, must they go for nought 7 But has not the defendant, in substance, set up payments ; has he not referred to ■ ,;,,j:, iv:j,::. i LAW REPORTS. 87 ents, the whole »m Logan's tes- llok, that there iveen these par- to make up his resort to con- to give us cer- al ; ambiguous holesome effect J gave occasion veeps away the ory admissions (1 without the and coaipels a and to bind the id is not liable nversations are reflect, and de- Uy admitted to in a particular ative the mode endant to shew n the plaintiff )n of anything •sation referred that assuming ion. Had the :e. I will pay," 1 mind the lan- )een incumbent id been made, e payments on e and to give a ■n lost through position, that, thrown on him. and the latter note, for which ay," could we is, the face of ;ed by him in icing his case it has not the ot referred to his considerable accounts against the plaintiff Lechman et al. v. for.d to ' nl^^V f '^'^ '' ^"/"PP^'-^ '^ ''^'''' I h-ve endea- vored to shcw^ Ihe defendant and one Fulljames were indebted to the plaintiff in £250; the plaintiff wrote to defendant claiming hat sum ; ami defendant wrote plaintiff a letter, in which he said^ fulljames had managed the cash concerns out of which the trans- action arose; ' and added, '-I will at any time pay my proportion 0/ the debt due, on application for the same,"' It /as^bjected, that no amount was specified in this letter of the defendant. The court held that it was competent for the plaintiff to shew the sum ./M... the letter, the statute 9 Geo. 4 not requiring in terms the amount of the debt to be specified. Bayley, B. , in givincr iudc- ment, says : - Suppose a debt of considerable standing and (lefen- dant were to write, I do not know the amount as we^have had no settlement: nothing however, has been paid, but if you ascertain what the amoun is I w.l pay you ;' I think the plaintiff might shew the sum due.' Now, here Baron Bayley puts expressly ha the defendant admitted there had been no payment ;^nd if ^at had been omitted, it is clear it would not have been competent toi the plaintiff to shew what was the amount of his account only 1 found my opinion, therefore, upon the ground that the plain- tiff has not proved that anything is due, which he was bound to do under all the cases similar to thi. ; and which he must have alksred m his declaration, and proved, had he declared specially. The rule, therefore, ought to be made absolute. MOORE vs. POWLEY. Hi/ari/ Term, 1840. ''TJo!'T'"" ''""" ""' ''' parties, aaer having examined thewitne.se, on both side, sdected an nmp.re, refur,e,l to have pla.ntiff'. witnesses re-examined before .he umn^r;' This was a motion to set aside an award on the ground of im- proper conduct on the part of the arbitrators. First -Because plaintiff was not allowed to be present at the examination of his own or of the defendant's witnesses. .Secondl,/, -Becmse the aibitraUirs called m a third person as umpire ; after which, plain- tift requested this umpire to allow certain of his witnesses to be i is LAW REPORTS. examined, but he was not allowed to bring them before the arbi- trators ; and because, after the umpire was selected, two of the defendant's witnesses were examined before the arbitrators. Bliss, J.— There is nothing in the iirst objection It is com- pletely answered by the defendant's affidavit, which states that the arbitrators heard the statement of both parties, and then re(|ue8ted them to withdraw during the examination of the witnesses, deem- ing that the most advisable course ; to which neither party made any objection. The arbitrators had a full right to proceed accord- ing to^ their own discretion, providetl they acted fairly to both. Though I see nothing so improper in their examining the witnesses theniselves, I cannot say that 1 approve of the exclusion of the parties during the examination : but most certainly, where no ob- jection was made to the course at the time, it cannot be raised afterwards. (2 C. & P., 57(3.] The party takes hJs chance of having an award m his favor, but being disappointed, ho complains of that to which he before tacitly assented. He cannot do so. [1 B. & P., 91. r)B& Ad., 488. 1 I am dispo.sed to give more weight to the other objection. It is true that the plaintiff's affidavit does not disclose the fact relied upon with as much distinctness as might have been done, but it conveys to my mind suflicient certainty. I collect from it and the defendant's affidavit, that the two arbitrators first heard the case and examined the witnesses, when they called in a third arbi- trator to join them : that the plaintiff reijuired certain of his witnesses to be examined before the three arbitrators, which was refused, notwithtanding which, they did examine some of the defen- dant's witnesses. Is this allowable on the part of the arbitrators ? It is not like the re-examination of a witness by the same arbitia- tors, as in Atkinson v, Abraham. |1 B. & P., 175. J The tribu- nal had been reconstructed— another had been added to it who.'^c opinion was likely to have influenced the others : for the two hav- ing called him in after they had themselves investigated the case, shews that they had some difficulty wliich reciuired his assistance to remove. It might have been sufficient if the evidence which had been given had been stated to the third arbitrator ])v the other two without a new examination of the witnesses, as ni Hall v. Lawrence, [4 T. R., 589,] ; but even then, if either party had rc- {{iiestcd him to hear the evidence anew, it may be doubted whether his refusal to do so would not have been a good ground of objec- tion. \iJB. k Ad., 495. J But here the arbitrators, after they had been joined by the third, must have felt the necessity of a fur- ther examination, for they did examine some of the defendant's '1 -U LAW REPORTS. 89 before the arbi- cd, two of the itrators. 3n. It is coin- fltate.s tliat the then ie(|ue8te(.l itnesses, dcem- ler party made proceed accord- fairly to both. g the witnesses :ckision of the I where no ob- [inot be raised his chance of .1, he complains cannot do so. bjcction. It is the fact rehed in done, but it ;t from it and first heard the n a third arbi- certajn of his ors. Avhich was 10 of the defen- lie arbitratoi's ? 3 same aibitra- • J Thetrihu- ed to it Avho.sc rs. after tliey 3ssity of a fur- le defendant's I I I I witnesses : and to refuse the plaintift''s application to have his wit- n(!sses examined under these circrmstances. appears to me perfectly unjustifiable. It was not fair dealing. If the same course had liocn pursued befoe the two arbitrators, and they had refused to examine any witnesses tendered to them, there can be no doubt it would vitiate their award. [8 DoavI., P.O., H61).| The case ap- pears to me to be the same where witnesses are rejected after the third arbitrator was called in. Who can say that his mind would not have been dillerently iniiuenced if he had heard the witnesses on both sides, and that through him the two others also might not have decided differently. The hearing on which the award was made, has been t.r pd/tc. The trial was not conducted fairly and impartially. I cannot, upon the statement of the plaintiff, unex- plained and uncontradicted by the defendant, support the award. ALMON vs. TREMLET. Ea.s/nr Term, 1840. WhiJiT (li'lL'iiiiiiui,'s dorvaiil puruliased a quantity of coppur I'rum iilaiotiiV, for cash ; and having received the money to pay for it, fraudulently retained it to his own use : held that plaintilT could not rcc'iver tlie i)riue of tlio (ti)i)per, it having ecme into defendant's possession with- out \\U beiiitr aware of the fraudulent conduet cf liia serrant. This was an action brought by plaintiff against defendant, a merchant in Boston, to recover from him the price of a quantity of copper sold and delivered in Halifax, to one Lane, who com- manded a vessel called the Acadian, belonging to defendant, and engaged in trade between this port and Ijoston. It appeared in evidence, that Lane was in the habit of purcha- sing copper to realize freight ; and that in June, 1888, plaintiff's man.ijj-ini' clerk met Lane in the street, and asked him if he wanted a lot of copper. Lane said he would purchase it, if the price would admit of its paying freight. I'laiutiff-s clerk named lOd. Lane said that would not do for the owners. On the afternoon of the same day the clerk again mot Lane, and offered it for 9d. .; which Lane agreed to. The copper was sold for cash. The bill of par- cels was made out on the 11th of June. There was some uncer- tainty respecting the time of delivery of the copper. The witness at first said that the copper was delivered on the following day. IMAGE EVALUATION TEST TARGET (MT-3) "/■ ^ < *ii i< % ^^ ''^^O (/. t 1.0 I.I 11.25 2.5 2.0 il III 1.6 =1 PhntnnrQTiViir» Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 iV '^ V s^ ^x '^ «C' ^ ? .^^i^ > 90 lAW REPORTS. ■Lane's certificate at the Congulnto „«:„ i, Hth On the ,an,e dl the M^h r '"' t""*™"-' ""^ ^^'^ ">« Starr, the gonerai alT^ „f th /r^^""' "''^"'^ *" *'^^'™- W the pWntiff for f,tr 1 . f ^ ' '"''•''' ^"^ """">y ^ gave Lane a ehe.k forVloHn L ' , • "'" ^^^^ ^'°" The Messrs. Starrs haclbe eque teat; C 7/" ""^ '"'^^'■ thority to make the r«,n.<., ' T "^ •'^ ^"P'' '''""^^' ^^"^ m- owdetL to JL^zrri^iiirt" r-^ "^'"^ advance money to Lans t„ ,,,. T ' °'"""' "^ » ''essrf, tc . dant. I^nepCisZenlain -ff! """T °" ^"°""»» "^ ««- Acadian sailed; "^ !n^f '^ ^^J"' ">'™PI»^ before the the .one, from SUr 'kt^ iTi^ h Tl """ '"' *" *" «»' »d ei^ht o'clock in the morni^^ ottie mh "^i"" ''^'™'" '^™" Just after she had got out of "1 V ,' '""'°'" P*^"'S «»• '*• the Messrs. Starr afd asM if wi; Z', P.'*""*''^ "''''' «'■"« >« topayforthe copner TwInP f^^^ 'f any money with them by Lane as the property of det^t Th T'."^ *'''^'' ""' Boston on the 20th June thr'! ^'^^'^'^ ""'^d >t defendant, at the ens o"' hous tW™ T'^' *^' '"='^' ^"^ «■« ■■ecoived by him. By the fi sVmd ' I'T ^'°^''^' ™J plaintiff sent a bill o/JluZ T "^ ""' '^''*" "^^^. drew upon him for the'^rl t\7^' *" *^ ''^f''"'''"". ""d the same opportunity ,LX^; :':"'' ''^ f"»' '» P^y ,' and by advance the money to L,™ Lb "l' '""^ ^'"' "'"' '^''^ ^^ defendant, in replyf to ,1 "„* Y.""' '"'''' " '° ^'"'<"' ^ ™oae trans- there any proof of 1^22' '" '"' ™r''""''^ P"'"'" N«r«aB it did appL that ZeeS:?' "''"''''"' '"^™°; *'»"g>' here, and was in the hab 2lh "'' ""Z^ '"' "«' ''"f™''-"' articles for him with cth ^'"""'"'"''S »'-''™»d and other small la supporting the plaintiff's cWm. the Solicitor «ene«l. his LAW REPORTS. 'r, was dated the ipplied to Messrs. •c, for money to »tifF; and on that lie Messrs. Starr ' for the copper. Jones, whose au- ' appears by tho Jr of a vessel, to count of defen- opper before the at he was to get between seven It paying for it. 3 clerk came to oney with them iven the money ivas cleared out ian arrived at bat day, by the property; and cadijin sailed, lefendant, and pay; and by that they had Almon ; and to make such charge, on a l^ear. There he plaintifF's ' those tran^- •" Nor was 'g; although 'e defendant other small »encra], his 91 counsel, diu not contend for any general authority on the part of Lane to make purchases on the credit of defendant. There was not a shadow of proof ty support such a claim ; but he contended : 1st, that where there is no such general authority, if a party is sent to make purchases for another, and after the purchase is made, and the goodh received, he who sent him gives the money to him he sent to pay the party from whom he received the goods, and he does not pay him, the loss falls upon the purchaser who employed the party, and not upon the vendor of the goods. And he con- tends, that as Lane received the money from Starrs, (defendant's agents,) to pay Almon for the copper, which had been then deli- vered, and Lane did not pay it, that the loss must fall upon de- fendant, and not upon Almon. Halliburton, C. J.—I think there are two objections to plain- tiff's succeeding upon this ground. First.— Neither the defendant nor the Starrs sent Lane to make any purchase for them. The transaction commenced on the part of the plaintiff, whose clerk met Lane accidentally in the street, and offered the copper to him for sale. This is not an unimportant distinction. If I want an arti- ticle, and send my servant for it without the money, and he brin<»s it to me, it is unquestionably my duty, after receiving it, to see that it is paid for ; and if I then give the money to the servant to pay for it, and he misuses it, 1 must bear the loss ; it is my con- fidence he has abused. But if, without sending hun on any such errand, he is accosted on the street with the offer of any article I am known to use, and on his communicating this to me I give him the money to pay for it, and the article is delivered to him without JTisisting on payment, whether that delivery was made before or after I had given the money, provided such delivery was made unpaid for without my knowledge, I am not bound to sustain the loss ; the confidence was reposed in the servant by him who delivered the goods, as I had not sent him abroad to procure ^oods on ?ny credit. Now, all that the Starrs (defendant's general agents) did, was to give money to Lane to purchase copper for cash. Starr expressly negatives Lane's having any authority to make purchases of any kind on defendant's credit. The plaintiff's own witness proves that no credit, (in the mercantile sense of the word,) was given to any body in this transaction. It was a sale for cash ; but, untbrtunately, the plaintiff reposed confidence in Lane that he would bring the money for it, according to the agree- ment made with him ; and the article was delivered to him with- 92 LAW REPORTS. out exacting the payment from him at the time. Now it was the plaintiff who reposed that confidence in Lane : and if Lane abu ed It, he mu8t take tlie consequences as far as this pa t of the case goes Secondly.-It is by no means clear that^ the copper w-s de ivered before Starr gave Lane the money to pay for Tt The date of Uie Consuls certificate of the shipment on'tlfe 14t ' is no? • ZZ1% ^?> '^^"^'''^"S '' '' ^^=^^^ ^^^^ J^J^vered on t ' T4th the check for the money was given to Lane on the same da? 1 .t< re the bank closed ; and there is no proof as to the riority of d e to facts which It was incumbent on che plaintiff to establlh o su .- port his claim upon this ground. ^''^uumi, w sup- It is next contended, that the defendant, by receivinrr the con SL\ rn??^^^^^^^^^^^ authority of Lane to Jake thr^^rchLTn ft s account, and that such recognition is equally bindin.. urjon him as If he had originally authorized Lane to'mak^e the pm-cE In McLean v. Dunn, [4 Bing., 722,J Best, C. J.. Lys f Jn my opinion, the subsequent sanction of 'a con ract siS l)v.n agent, takes it out of the operation of the statute more sSLtXiv than an authority given beforehand. When the authon-ty Wven beforehand the party must trust to his agent: if it be Xen*' ub sequently to the contract, the party kno^v^ that all hasl^een done according to his wishes. '' This reasoning is as sound as it I iust but, IS It applicable to this case. Under%vhat circum tan es dM defendant receive the copper? ^^"ui&iances uiu Lane, the captain of his vessel, not authorized to make pur chases on credit for him, but occasionally buying articleTfbr fl" with cash, purchases this copper from Almon tbr defendant Z agrees to pay cash for it. He receives the money t pay for t from defendant s general agents here-ships it on defendant's account-sails without paying for it) on thi 16th of W and delivers it to defendant on the 20th of that month a Boston There is no proof of Lane's communicating his own ro^uSy o him, nor does it appear that he was then made acquainted S i? through any other channel. He, of course, then receive t 4 s's owri property, which had been bought and paid for with hs own funds Nor can the mere reception of the copper, under the eel cum tances, amount to a recognition of Lane^ .^thority to pu -" chase the copper on his (defendant's) credit, when, in Lt as I have before observed, it was not sold on the credit of any plson fnc'e'L W" ""^^^*^-*^'^ ^^^---^ -^^er a misplacyconfi: pla]^;2?lS:d:St^:i^tj^^^ ^^^J the be m^e on dehvery of bills of parcelTy t^^'St SoT lo^ LAW REPORTS. 93 the satjafaction of the sellers, not exceeding three months' date to be made equal to cash in four months from date of ternjs. Lliyd and ^^ ilham;?, brokers at Liverpool, Avho were frc(iuently employed by defendants to purchase ivory for them, sent one of these cata- logues, with the conditions, to defendants, who directed them to buy certain lots for defendants, which they did. At the «ale the auctioneer made the following verbal alterations as to payment • ■■ Pay mem by known buyers, the usual credit of two and two months; by strangers, as in condition annexed to catalogues" iho ivory was delivered to Lloyd & Williams on their own account and charged to them. They transmitted it to defendants as bought ot plaintiffs, payment equal to four months cash, and then drew upon the defendants a bill for the amount at four months' date, adding orokerage and commission, which bill the defendants accepted and paid. L. & W. stopped payment within two months after the sale ; and the plaintiffs discovering that the ivory wu.s purchased for and received by defendants, brought this action aganist them .for the amount. 'J^hey were non-suited by Parker J at tiic trial, and on arguing a rule AV.s'/ to set aside the non-suit' Lord Tenterden said that '' the plaintiffs, by circulating a cata- logue with c^r.ain conditions of sale, naturally led the defkidants to suppose that Lloyd and Williams could not have received the ivory without giving good bills on London for it, and that there- jorc they might properly accept the bill drawn bv Lloyd and Williams for the amount; and if we held that the acceptance and payment of that bill did not exonerate the defendants, it would be an exceedingly hard case." The mere reception of the goods, therefore, does not amount to a recognition unless they are received under circumstances which authorize an inference that the party receiving them wants to recoil- nize the power of another to make purchases on his credit. Now, here a party who liad never authorized Lane to purchase goods for hmi on credit, but was accustomed to receive goods from him out of this vessel bought for him with cash, receives this copper from him out of that vessel in the usual manner. Can that amount to a^recognition of a purchase made on his credit / where. I repeat it, that purchase was not -Tiide on the credit of any one, but was really a swindling transaction committed by Lane upon Alnion. .But this case is subse(iuently put in a new light. Undei- what- ever impression the defendant may have received the copper, we are tola that before he had sanctioned the advance which Starr 'had made to Lane to pay for it, he was informed that Lane had not paid for It , and we are now to be led from the direct (mestion be- tween Almon and Tremlet to try a coilateral oiie between Tremlet It \i-, m LAW REPORTS . an.l S^irr, and to decide whetlicr Starr, as Tremlct'g ^encral agent here was authorized to make tins advance on TrJrnlot's account Now, this is a course upon which, I think, we should m" U ^^^^^^^^^^ Tr . ^' " «-^-'^tedly true, that if go'Ss .nc sol,I and de hvered to a factor, wIkmc principal is unknown to he ,^ndor at the tnne, that the vendor nLy resort to that p nc ! p tl for payment when he discovers that the goods were >-eally pur- chased lor hun ; hut if at the time of the Jale the vendor knms he pnncpa , and elects to give credit to the agent, he cannot Xr ^la report to the principal. This doctrine is'ful ly established in Patterson v. Gandesequi, fl5 East., 02, j where a^new 1 v^ granted expressly to try whether the plaintiff-the vendo -cM not know ot tho principal at the time that he gave the credit an charged the goods to the agent. If he did, the^ourt eoncurmU deciding that he could not maintain the action, No' ircanno ho dispute.1 that Alnion knew that the owner of the Ac d an S^. de endant) was the principal in this transaction, and that the cop- per w,^ t.) go to hun. The bill of parcels delim-ed to Lane ^ tnis sa e>/- ra,„ was Diig Acadian and owner: and it is equally ck.u-.tha .my credit that was given was to Lane, .ho vnX^ mtted to take a^v.vy the copper, upon a promise tha^ he would my lor It before he sailed. The plaintiff sent to the Starrs, not to^;e'^ quire the.n as agents to pay for it, but to in,iuire if Lane w'loin 1 aintiff had trusted, had left any n.o.,ey witi; thein to pay Th , hen, upon he transaction as it stood between Alr.on ami la le t he time of the delivery, the defendant was not in point of w able, because the copper was not delivered on his c edit, but o he credit of L^ne, can we go into the equities of the ca e o fix um with a subsequent liability. I do not find that suel a cour e Avns pursued lu the case of Patterson v. Gandese,.ui. No in vvant TO buy goods on credit, the former is lijible for whnt is bought by the latter, thongh without his authority : because the genei!.: principles of justice would point out that he who accredits another, must take the effect of that credit. The seller is not to make en(iuiry. in such case, whether the purchase was made with the sanction of the master, for that is fairly to be inferred from the general tenor of his actions. But if a master has not sanctioned any dealing '.pon credit, from Avhich a seller might honestly infer on author. r-r. a p.xty trusts a servant at his own peril, and the servant u'n\,..is rvi responsib") prr;son, the master l)eing lij)]e only for what coi .jf, to his usp, and not fur that, if he has furnished the servant w'l.i mon y befo/ohana to p^y for it : for whenever it appears that lup master has b-jfoiehand fu.ni/hed the luoney, he is liable for otK-,:.-. The c, es ciljc! from Feake, Salk., £sp., and the case 01 ihum V. McLean, [1 h. >: P., | fully estaMijh this doctrine. I Imve already said diat no express, general or particular agency ot Lane is proved; and 1 may also say, that the case aftbrds ro proof whatever of Lane's having, previous to June, 1838, made any purchases on credit for the defendant, and of the defendanfs adopting them and paying for them. It does not appear from any part of the case that Lane has ever purchased on ciedit goods for the defendant, and therefore, as far as we can see, the defendant has not, by any one act, held out Lane to the world as a person armed and clothed with the credit of the defendant, and therefore I thmk it could not for one moment be said that any implied au- thority to make this particular purchase on credit can be assumed. But it is said and urged with great force, and put forward r.s the main prop of the plaintiff's case, that the defendant has actually received and used the articles, and by such reception and use has adopted the act of Lane. The answer to this seems to me conclu- sive. No credit, by the plaintiff's own testimony, was given either to the defendant or to Lane. The sale was a cash sale, and the cash of the defendant was actually in Lane's hands to pay for this purchase. The copper was delivered on the 14th or loth of dune, and the check of Starr was given on the 14th. At the time of the purchase, the clerk of the plaintiff was referred to Mr. Starr a.s the agent of defendant, by Lane ; and the clerk himself applied 08 LAW REPORTS. to feurr as si^ch agen to know if Lano had left the money with him for the phnnt.fl. The entry of the sale was never posted, and ..c whole testnnony puts it beyond a doubt. I think tluit it was a canh and not credit sale, and that Lane was in cash furnished by the defendant. 1 he receipt of the copper would, at the utmost Sd rno^'^^'r^"'' lmnt. The money was paid in the t us suppose that :hat on the arri- d the £\)7 10s. ise recover from such an action. le master is held 3, they ^vere sold the master was sold for cash to .fa party thinks goods on credit > pay ; ^ut if lie iks to and treats t, 1 think, abide the article, I do nan, of whom I and delivered. Lane, the mas- eudant was the Lane, and con- cquently came, !■. If the case jimply whether , by the defen- articles, so as t(i make him liable for the price, no doubt could be entertained for :i moment. The law is plain enough, that if one purchase- goods for another without proof of any express authority, and these floods are received and made use of by that other, he will be presunicd to have authorised the purchase, and be liable for it.— fPeake Cases. t- (lient in the transaction— that upon which the master's liability wholly depends— is wanting in such case. It may happen— as it generally does when a defence of this kind is set up to rebut such a imina facie case of liability on the part of che defendant, from the recognition of his servant's purchase,— that the fact of the money having been previously given to the servant was unkno-vn to the vendor at the time, who may therefore have been deceived by the misrepresentation of the servant, and have trusted him with the goods in the expectation of being paid by the master. But much stronger Avould the case be against the vendor, if he was infbimed, at the time, that the servant was provided with the money to pav for the goods ; for he only suifers then from his own imprudence in parting with the goods before he received the price.* In tlio former case, however, where the servant has pledged his master's credit, and the the master, by accepting the articles so fuinishcd, establishes a prima lade case against himself of having given au- thority to his servant to do this— the vendor having no I'cason to doubt it, — the master has the onus imposed on him of shewiiio- that he did not give such authority ; and he can do so, by shewing that he had furnished him with funds beforehand to pay for the goods. But when the defence rests not on a fact within the master's own Imowledge only, but is derived from the transaction itself, it can- not be necessary to make out that the defendant had provided the servant with the means of paying for the goods, in order to shew 100 r-AW RKPORTM. .at he K.,! no au,l.„>Hy to pledge his (the riefondunts) cmht lor nmsict on tho veuuor must have known that the servint -o . , I uuo M „o such authority, then the whole fbunV REPORTS. xireliund, although fter the purchase It all events, that i credit, and that case, it is proved he defendant, had the money, if it to M'hioh they as- aaid for at once ; le delivery of the ich they had en- property vv'ithout g him that he was got it. He sails tiey ; and just as jvv first a^vake to to know v, hether lie copper. Can tion of the copper be privta facie rchase on credit, ing. Under the is now made still itifF; the implied dit is completely ice. are with the tie's misconduct, »ut did not, pre- 103 niid psrUy far a "laim ^d fi.i- wlioii;»uii. sworn to be issued, a Bpecial • l.ie affidavit wns for i3804 interest thereon, and £630 3s. for damages sustained by plaintiff's property in the hands of the defendant as his agent, through negligence. The writ was endorsed for ihe sum of ^1487 IGs. 7d., being the amount shewn in the affidavit. There was an application to sot aside the process and proceed- ings. F,W TV iT T '•-'^r ^^^^-Tl^ere are two questions in this case : ltor. It is now, 1 entitled to any r,'"" will embrace the views which f this description 5conding debtors, inals in the Uni- )untry, I always preside in those ved much as.sist- inced upon casps which it is dia- led country like in this case, for hat any person. , excepting de- assault and bat- ows that every ss exceptions in no exceptions : hatsover," used mited meaning, ill of them the sel for the de- d to extend the 3tion of actions tion nust arise illy exclude all r compensation irokeii heart- - pally be a de- lis description, ceives in other ?en decided in rts established ressions much ideration have but the juris- diction has been restricted to debts and demands for liquidated suras.^ Such construction I should give to the words used in the act of 1761, did it stand alone ; but when I turn to the act in amendment of it, passed m the 1 & 2 Geo. 4. I find the le^Hslature prohibiting the issue of any process under the 2nd section of the hrst act, until affidavit is made that the defendant is justly indebted to the plaintiff in a sum to be specifically mentioned and set forth in the affidavit. It is objected that this 'is a process of attachment issued under the first section of the act ;— the answer is that it was not necessary for the legislature to have extended the prohibi- tion to the first section, because, although the act of 1701 which authorized the issuing cf attachment under the first clause made no mention of an affidavit, yet by the long established and invaria- ble practice of the courts as well as under the acts relative to bail no attachment could issue without an affidavit of debt to a ^-oecifie amount, which must be endorsed upon the process. The 1 & 2 Geo. 4 Avas not passed as a declaratory act to re- move any doubts in existence as to the nature of the actions to which the 1 Geo. 3 extended, but, as the preamble states, to re- medy an evil arising under the 2nd section of the 1 Geo. d, which enaliled creditors, by the mere service of a summons on an a<^ent to_ attach the goods, effects or credits of absent persons in the binds of such agents to an unlimited amount, without making any affida- vit that a debt was actually due to them by such absent person They did not extend the remedy to the first clause, because the. evil did not exist under it ; for, as 1 have before observed, no pro- cess could issue under that clause without an affidavit of a debt due. It is clear, therefore, that no proceedings can now lake place against absconding debtors without an affidavit of a debt due by the absent person under either the 1st or 2nd clauses of the 1 Geo. 3. Process of attachment against persons present or absent Avas never issued within my recollection, which extends nearly over half a century, (commenced in 1791,) without an affidavit of a debt actually due. The person may be held to bail by a Judo-e's onler, under the special circumstances of the case : but I know of no attempt to extend that, practice to the taking of property bv attachment. The first clause, therefore, of the 1 Geo. !], wdiich auiliorizcs an attachment, sanctions no such proceeding as this. The 1 & 2 (^eo. 4 expressly prohibits the issuing of any process under the 2nd section of the former act, without an express affida- vit of a debt due. These proceedings, therefore, as far as respects the tort, are not sanctioned by either clause, and cannot be sustained. Upon the second question,, whether these proceedJngs can be %. TOO T^AW REPORTS. The eases are c,uile o earT nf u? ' ^''^ /' ^^**'« ^^fficu'ty. bail under simila ' fida t' e b tvT''' r'^? ^'''^ ^'^^ ^" ii» the.o cases, it is true th d'f^ ? J'"' ^'scharged m /o/.. enter au appearance : b^il t^^. t ^ fh :T ""^^"^^ *^ served witli the i)rocess Ijiit L .' e.u- '^^'" personally F'-.^onal service las Sen vhL V'f °^ th,s nature, ^vhcre n^ Hnd effejs of the ^Wnt e^^^^^^^^^ 1^1 ''' '"'r'^'^'^ "^' *^^ ^^«^^'>« decisions alluded to ^7^' t do . '' "^^^ * '" ""^^'"''^^ ^^ the .-dto^ether. ' '^ '^^~'^ ^^«« <^"r hold of the cause J^^:^ls:i:^^' p--^ -«^ ^^ -t aside, a positive and certain debt swo r n n 1 Y'} P'^^'"^' ^^ere is lm\ and received, and S^, ^e ', n ?-"'"'^ ^T'' ^''' ^»«"«^J an.! then ^lo^s\. s^Z^^J^T '^ ''I -^^^^ l^^- 7d • "Of .onee and xniscLduc^i'S^' fr :?:;ich: ^'^"'^"^ ^"^'^ have ansen to the plaintiff of the u he Tu^ of Jolo^'. '''"'!] the endorsement on the writ is for /l487 l7v -i t, '^'•.' ''"^ amount of the two sums tot was certain. If we once stoi) be- yond this line, there is no possible case of uncertain dama.^es to vvnich the remedy by attachment, under this act. may not iii.,)lv and It could then be resorted to in all cases of broacli of contract' or torts and trespass, though I do not know that a more extreme case could be pu.t than that now before us. It would be quite a perversion of terms to call the plaintifl' a creditor, and the deien- dant a debtor, in respect of such a claim for damaircs. It was even m the hmited view to which I think it must be confined de- viating sufficiently from the law of England : but 1 cannot brincr myself to believe, and the language of tae act does not compel m? to it, that the legislature could authori^ the attachment of the property ot every absent or absconding person, to answer the uncertain damages of any one who might have a possible claim or supposed cause ot action against him, and that merely upon his own simple allegation ; for at this period it does not appear that any affidavit was required previous to the issuing of an atti)>hmeut The act was passed in the fourth year after the Province possessed a legislation, and appears to have been the very earliest one in which tlie process of attachment is mentioned. The first act which gives the form of the writ was 6 Geo. 3. This was amended, how- ever, by 11 (jeo. o ; and it is somewhat remarkable, that it is to a temporary act, long since expired, that the writ owes its ori.-rin Ihe act ot 8 Geo. 3, cap. (,, also a temporary one. appears to'^be the hrst which recjuired any affidavit to sup},ort the attachment Jiy that the sherift was directed to attach no more [)roperty than the simi sworn to and endorsed on the writ. Next followed the act of J 8 Geo. 3, cap. 6. This act is coi.clusive. in my opinion, on the subject. JN either bailable process or attachment can be issued under It, except when the plaintilf can swear to a sum certain • the only duty of the Judge being to endorse the sum so sworn to on the writ ihis act authorwes no specal order—invests the Jud.re with no discretionary power either to hold to bail or to attach : and if he 108 LAW REPORTS. cannot endorse the wnt hs the act directs, he caniiot endorse it • 11 1 he can make a special order under this act, so car a Just ce of tne Peace in the absence of a Jud^^^e. for the ame power sSven one as the other, and the latter would then be -,u£ZdeSv to order a defenxlant to be held to bail in special ca.^s T^^l?^ never suppose this could have been contemp ated by the act O^r provir^ial act is substantially like the English statul'o 12 Geo 1 '•^'P. 2d, vlnch re,(un-ed an aflidavii; before bailable proces^could sLie and winch would have limited that procesfto^ ^ fwhe e he debt or damao-o Avas certain if the jud-c had not -i nownVlf f"> Idnig to bail iiHlependontly of the staiute" [8 tr 864^ Anc[ so ho may do here for the same reason. notLl^h ndin ' the mo vmcial act IJut tlie process of attachment owes t Sri'^n ami ;.Uns^f^h^^^^^^ Whenever, then,, tiie ..se J's^tf^t if Sa^jZ^^:: ^i I>< issued a specia order of a judge would be re(,uir^d then I Ton sider tluit the writ of attachment cannot be islued T L being of that description, it cannot be upheld ' '''' BROWN vs. BOOLE, AW/tr Term, 1840. Where the deposition of a ^v.tness had been taken h„t not u.ed «t lir fir.. . , Of wuness b.io, ab,o, t,, ntton.., ,.„, a new tri., havi^ "e;^.!,, , 7,' ,' th " ?""'""" previrus to si„-h nmr iin;,i, lidd thi.t tl>.. ,i^r •. ■wanit.,i.,-ina the witness djing second ,rial. '" "^I"'^'""" ^"a^ receivable i„ evidence at sucli d,n?'' h"? k- ""'"" '"'■ '"' '""^ "'^™P»'"'"'- ^''"*'=' !■«'■ defen- dant. Uuhhm to set a.ide verdiut fo,- the ad,„i,sio„ of i,„pr„n„,. tesumony .„d .usuffieiency of tho notice to ,,„it. The no eo o ,«.t c„d not nan,e the day on which the tenincy tcftninate b« wa, .,.,,^y . nottco that tho tenant would .init^;,, the Jl^'l .M Thl ' ! "'■ ""."'"""' "" '™^"«.^ -'-".V <-"» - nh r' A ■ "•" ^'™" ""^ *' '"'""' ""■'« ^'Oiths lH,fove the un ot April. LAW REPORTS. 109 108th of the month, IlALLiiJuiiTON, C. J., said— The testimony deemed to be inad- ini^.ab e was tlie deposition of one Haley, taken under the provin- cial act, authorizing the examination of aged and infirm .vitnesses, or of those about to depart from the province. (14 & 15 Geo. 3, There was no objection to the regularity of the exaiaination, but his cause, after Haley's examination had been taken, had been brought on for trial as a summary cause before Mr. Justice Bliss at a precedui- term, when the ^vitness Haley, being then present' was examined vn:avore^ the statute requires. He died between the first and second trial, which was directed to take place before a jury. Plaintiff s counsel contended that the Judge's minutes 0. the evidence at the first trial, or the testimony he then gave proved by a witness who heard and would verify it on oathfwas thc^only proot that could now be received as the testimony of If the grounds of this objection had been reversed, I should think the objection more tenable. It is certainly true, that in case of the death of a witness who had been examined on a former trial of the same cause, between the same parties, the evidence he there gave may be introduced upon the second trial by either of the modes nientioned by tae Solicitor General as was raised in the case he Cited from o launton-l Mayor of Doncaster vs. Day, 3 Taunt., -b^.j J^ut particular rules are only the exemplification of gene- ral principles ; and the general principle is, that the best evidence which the circumstances of the case will admit of, must be pro- (hice(l. And the reason why the evidence of a deceased witness on a former trial can be thus received, are clearly stated by Pliil- lips : Ihat such evidence was not given in an extrajudicial man- ner, but upon oath, the parties to the suit were the same, the point in issue was the same, and an opportunity was given for cross- n ;''ll °" w^l^Y- '" ^'^-l ^^^ ^«^^' '^ tl^^«^ reasons equally apply to tbe deposition admitted in evidence ; and, in mv opmicjti, testimony taken as this was would probaldy be more accu- rate than the minutes of a Judge taken during the hurry of a trial on tlie recollection of a witness who was present at it. The Soli- citor General, mdeed, admitted this at the argument; but said hat the testimony given before the court was of a higher order tlian that given before a Judge under the statute. \V hat weight this argument would have in deciding a precedencv !n i'Jrr'!r,'^ ^'P-?' ^ ''f ""* '^'^^^™'"« 5 b"C Avhen we Je to look for the best evidence, I think we must give the preference 14 no LAW REPORTS. to thufc which is actually the best; auJ, therefore, I think the plain- tiff cannot aucceod upon the first objection. I have looked into all the cases, Avhich were cited at the argu- ment, to support the second objection ; but 1 think they have been a<,'ainst it. It is true Phillips says : " AVhen the notice to (juit is not on a particular day, but in a move «,'eneral form, as to (piit at the expiration of the term or current year; such notice, however the teniint n)ay a.s^;erit to it. affords no kind of information. Other evidoice, therefore, will be nMiuisite as to tlie re^'ular timoof d on the one or the other of those days, his lonlship sa'id he was not bound to give any such evidence. It was sufficient for him to prove his having given six months notice. But in this case the precise day was proved by the plaintiff himself. In the defen-jc of Bedford v. Knightly, a notice served just be- lore Michaelmas, 17*.>5, to quit at L:tdy-day, which will be in the year 1705, (an injpossible day, as Lady-day, 1705. was then past,) was held to be a good notice for Lady-day, 1700, because the words " which will bo'" shewed that it avi>s prospective. Now, this notice could only ho,ve been upheld upon the ground that it; conveyed sufficient informatio)i to the plaintiff of tlie real intention of the plaintiff; and when it so clearly appears in this case that the tenancy expired on the 7th April does not a notice that the tenant will .juit in April convey to the landlord due infor- mation that he will (piit at the end of the then current year of the term. In Lord Iluniingtown v. CuUifoid, [4 Dow & By., 248, J the language of the court was very strong. The objection was, the notice might be construed as a two days' notice only. Abbott, C. J., says : "There is one rule of construction in cases of this nature, which is no less sound than ancient, namely, to give such a sense to ambiguous words as will eflcctuate the intention of the parties. Applying that rule to this case, it appears to me that the words ' at the end of your current year' may be construed to mean the end of th.e current year, ending at the c'lsiiing liady- day. ~ ' . think the plain- N^ ow, nil the LAW llEl'OitTS. ly we not say, upplyin- that rule to this 111 cause, (lu not . I'iiyh'y, J., says i.i the same case : " Whoiv 'rcn^.i-.l L.n «, niMnsiDic and he aikled, "lie mtem e..l to -ive an ciYy'wut iho case of Campbell v. .Scott, [G Dii.,.,] pvoccodcd UDon thn same reasonable principle. There a wcokf/i.Kr as nS.l to qint on l^nday, or otherwise at the end of his tena y nox ft one; week from the day of tlio notice. It was ..bjeS Int t le notice ought to have specified some precise time for mi in or t have rciuired the tenant to quit at he end of the cun 1"^^.! !>ut the eourt thought the notice sufficient "' '^''^^ ' In Ihnde v. Vince, [2 Camp, 25(3,J a notice to quit at Michael 1 .^ loits is a irilal or imrlial one. I'lii- Bciioojii !• .)osi|i!i * P'iiio hail struck on rcckn, in an expoauil sitimtion, on tlio lllh Novcin- ln r, IHilU ; mill, notwillruuiilinK uxortions ol i ri.vv ami iier^onH I'roni tlio sliorc, was iilian- iliiiicil liy tliu cww on llie l.Mli. Notice of uliamlontiieiil was given to tlie unilerwril'rij l)y the lusureil, on the I'.itli. On tlie UOtli, the umlerwrilers accepted the abandonment. On llie 'Jibt, a liiiivy >;.ile lilted her otl' tin: ro' Ksi, and she waa brouKi.t safely into |>ort, where ujion the underwriters, on the 27111, (.'uvi: notice that they would nni accept the abaiidiin- inent. U was lield that, lhou;;li at the tiui<' the notice of ahandHninent was ):>ven, aul acccplel by the luiderwrilers, the abandcniiieiit was well uiade, yet, that subsquiMit events Imvint? made that u partial whicli was formerly a total Ioms, the assured were only entitled to recover as for a partial loss. This was an action to recover the insurance cf the schooner '•Joseph Albino." At the trial the plaintiffs obtained a verdict for a total loss, upon the Ibllowing circumstances : The schooner, tVeiglit and cargo, Avere insured under a policy dated 21st October, I, Sol), on a voyage at and from Orwell Bay or Kiver, in Prince Edward's Island, to Three llivers or Bedetjue, to coinplete her loading; and at and from either to London. The p .cy, by the terms of it, was to commence from and immediately following the loading of the cargo on board. Tlu^y commenced loading the ves- sel andoned by the master and crew on the 15th, being then, as all supposeil, in a hopeless condition. The crew did not leave till, from her exposed situation and the state of the wea- f I '« H"' %A 114 LAW RUroilTS. thor. It .vas ,W.n.c(l .langerous to ronmin longer oi» Loml SI. ,1 tlio moniiii.- nf tho 21 ^f ^f >v 1 ., ' ' ^^^*^ ^^'^^ «^^'» •>" "-i>ioy-.i I., .1.0 u,„ic.nv ' ir:,r' ;r"' ''t' ''"••" h«yU,- „f Pi,,„„ «':„,:"' ^"f «'"'"'«'■. .''nJ towel h.r inu, ;.1,„ iiii-iuu. i>"t]cc olulsui. eminent wia „;„„„.„. I iviitor., on tlio lilt!, N.ivcmbor T T ^ "'" "'"''''- vcm.1 hri ben bm,..l t in I In"' 'T '"".'"''''' "'-'"'"■ ""'t "Otic. a. „,j,. ;;;::;!;:;, "'^\-;; ;- «■•"; -01. funbe.. >v, itura as.n state tbat tlio, 1,»,1 1, ,''""'"' ■'"-' "'"''-■'- -covdin^to tbo : io" * l''™''"''^' -^"f' '"" !"> »"-toc>l, .-io„ of- the 00 .b™ 1 i'iteJ b" rT '""''■■ ^' "- -l"-' "'»'. « ull events, tbey ,vcro not b'aj fo IZ^TZ"'^'' ' ""' ts:=tbo^st??;^~^^^^ ;,i«i no. v.4.te-,.: "t lat't ;:;: :zi,t ■^-r"-^-*"* ^'>o oro, given tbeir ve,-,liet ib ■ he ill i,"'' V''^ '""^' ''''»"- 'ioi«ht an,l cargo-jioso "' '"""'"' "l"" ""■ vessel, "I.....0., .bat tbo evidence tullv Z; f U" ^""' •^''^^'"'^ "^ LAW REPORTS. 116 negligence in not procuring an anchor at J?et1r<|uc— that the vvssol iiad (loviat corn plctc her cargo) deficient m one ijnehor. From the (kveription given of that place, the owner oi master might very rcasonahlv conclude that there was no probability of procui'ing an anchor of the weight re(iuired, at Bederiue ; and in the exercise of u sound discretion, whether it would be better to sui)ply (aih essential want at Hedeciuc, by remaining at IJedwpie at the risk of :i«nig frozen in for the winter, until he could get one round from Charlottctown hy water, o** call thc.c in the vessel for one, I think he was well warranted in deciding, as he did, in favor of the latter. Tli.- ^M.y were oi' this opinion, and I think that their verdict cannot be" d'-i- turhci' upon that ground In thi;- v'iew of the case the underwri- ters arc certainly liable for the ' jss which has b-en sustained, and it noAv becomes necessary to determine whether tlipt liability is for a total or a partial loss. When I first heard the statement of the dangerous and appa- rently hopeless state in which «he was at the time that the captain and crew, and those who came to aid from the shore, deserted her lor the preservation of their lives, I tliought the owner was justi- fied in abandoning, and might compel the ' underwriters to acj(;pt that abandonment. But, after iiearing the argument, and looking carefully into the ease^ cited at the bar, and into others relating to the subject, I have come to a different conclusion. It is not my intention to detail, minutely, the bearings of all these cases upon the point now under consideration, for that would rather amount to a treatise upon tins branch of the law of insur- ance, than a decision of this particular case ; but to state, as the losult of my investigation, that whenever the vessel is still in exis- tence, and can be restored to the owner in the character of a ihip, or the goods are undestroyed, that the underwriters are not liable hr a total loss uidess the vessel has been injured to a/i extent that renders her not worth repairing, or that the goods cannot be trans- mitted, or have been rendered not worth transmitting to vheir dcs- tin(.'d port ; and that the underwriters are not lialilc for any loss occasioned by retardation of the voyage, or change of niarkct, against wliicli they do not undertake to indemnify the assured. no LAW REPORTS. 'IMio cases of Doyle v. Dallas, and ( iar.lncr v- Salvador 1 1 M -.. 1 Ob., 48, no J strictly adhere to the principle ll' ' si tcJl and although m those cases the property had actually pnsse.ot of the hands of the assured by a sale uk'Ic fur . sn.all un.\ hen the state of it was very hopeless, so that if thev did not recov^^ .•.^'a.nst the underwriters they n.ust sustain a serious loss, vet a was propc.-ly observed, the law of ii.s.nanco did not i-eco^S t OSS by sale. The jury decided in favor of the ui ler v tel tnd tlioir decision Avas upheld by the court. ^> 'Htis, ami rt is true that in the case of Till v. The Iloyal Exchan-e Assu- rance, the assured recovered the insurance ujin fix^i^ht. a tlunHi tlie vessel upon winch it was insui'ed was ii existence ar ,H^ns ^pable of eaniing freight at the tii.ie ti.e action was C^d ^ whirilr r ' T^ "^^ ^""''T «•— tances of the <5se uf^n A inch iJ.jJas C. J., lays so much sti'css in -ivin- the oninior of he court, and iiitiinates that he considers it iSthe^a cSe n nv turn upon that particular ca.^c tlian as coiiun. under - eel pnncpc. The vessel and freight wci-c insured upon a fo 1^ roni (.)uebec to England. She sailed i,i the iall of the year^-n dnvcii upori the rocks near Kauiaiaska, where she lay for so Pe time in an utterly hopeless state. Oiic of the (.wncrs^,)ioce' I fe>m (Mebec to Kamaraska ; surveys were held itpon^ e-- ope of recovering her was gone, aiid it was considered iiievita ' tha she n,ust be swept away and destroyed bv the ice and ton ; of tlic approacnng w.nter. unless she was sol.l as a w,-eck u ere she lay, in which case the per>ple i-esidi,ig in the ne td bo..] od n ight becoiiic the purchasers and iiiake son^) use of her n ite 1 mdev these Circun.stances she was sold. To the suprise o o^e v: body she survived the winter storms, and in the fo iowin^. S. ^•ns iloated and carried up to (»uebec at a great exp se ' S he ..repaired a an expense of about .£odG, and carriec/a full cam England ,n the smniner of that year. Now, althou.di it s^i^s rightly held that insurers do r.ot insure against a loss by dS ye where a sale haj actually taken place under circunis.i^c^s wl^ich ^i^^^^ : :^^''''rf '^ l!'' Fop^-ty so deaily dcinaiidel at the time of sale, an-1 where the pi-cservatiun and r^toi-ation of that property long afte,. the sale was ah.iost mii-acilous, ho fac the sale winch prevented the restoratioii of tlu vessel to 1 e ne might be considered in coi.juiiction witii, and as an aliPos incvi" be consequence of, the occun-ence of the' accidents insii.^ '^ . ' But eve.i under these strong circun.stances, it was nut uiitiF • W a second arg.mieiit that the court decided i,! iavor o/ tlu" ll r d Ihis case therefore, may rather be considci^ed as excepted y its owiM^ccuhar cireurnstaiices from the gcieral rule, than as c^st. hliahing a. conlrary doctrine. ' mdcrwritcrs, und LAW REPORTS. 117 It is, however, o1)jcctc(l, that as in the cases in Moody k Robin- son, it was left to the jury to decide the (juestion of total or par- tial loss, so here the Jury have decided that (juestion against tlio defendants, which shoidd be conclusive,— in answer to Avhich I would oidy observe, 'that however conclusive tlie verdict of a jury may l)c in deciding a disputed fact, or where there is contradictory evidence a verdict cannot alter the nature of things : and as it can- not bo denied that at the time when this action' was brought, the vessel, althougli injured, was in Pictou harbour with her cargo of timber uninjured, it is now incumbent upon the court to decide what the verdict should have been under such circumstances, and not to rest merely upon a iinding contrary to the i'act. Now, wo n ust recollect that insurers do not engnge that the assured shall not meet wi'a any of the accidents insured against so as to become liable ibr tjc whole loss if such accidents do occur, for that would be mere gainljling. They only contract to indem- nify chc assured lor the damages they may sustain by the occur- rence of such accidents. Should ..ny of them occasion a total loss of the vessel or the voyage, the insurers must pay the whole amount covered I>y the policy ; ])ut if a partial loss or retardation of the voyage only }«as been sustained, then they must indenmify the assured to the amount of the damage done to the vessel oV cargo, but not for any loss occasioned by the delay or the loss of nKirJvct; and as Lord tllenborough says, in Brotherton v. Barber, 1 5 M. k. S., 4:io,j whether it be a total or partial loss, must de- pend upon the state of events at the time Avhen the action is brought, and not by selecting any particular pei'iod when the pre- servation or recovery of the [)roperty insured may have uppeaml hopeless. Since the decision of .Cambridge v. Neilson, (18U8,) 1 10 East., o2U,J this principle has prevailed notwithstanding the doubt which Lord Eldon ex[)ressed as to its propriety, nor can its justice or propriety be disputed. As far as indcuiuity extends, the practice of insurance is most l>eneficial. not only to those immediately engaged in conniierce but to society at lorge, as it divides among many those losses which would prove runious to one. Carried beyond mere indemnification, it Avouid j)rovc as pernicious as it is now beneficial. In all cases of this nature, therefore, the (piestion is, what actual loss has been eventually sustained .' not what loss was at one time to be apprehended, or by what means was the danger n,verted. In cases of capture, while the insured vessel is in the hands of the enemy the whole property is taken out of the possession of the owners ; and unless it is recovered, the underwriters must pay for it : but if it be recaptured either by a ship of war, by a privateer, 1 5 V I 118 r^AW REFOIITP. "Pon tl,e capture -.nd rvr.,icuro '" ''^''''''' coris,.v have en' \-'''''/''''''''''/^''' ^o the cen sustained up n C" '!;;:?''^' ^^ (^^'^ ^^ 1-tinl loss onl^, has j"re the second, .r tol^'^t^''" "'''"'? '^^^^ccurred to in- I ^'"Uherefb;e of ;^, \^^ i'f '''^- i!^ the third. not he sustained, an,]^ ^ ^ i ' T''^"'^' ^"' '' ^"^'•^' '^«« can- aside and g,ant a Cv trial '''^"'^"^'' '^'^""^'^ P"'^'^ to ,et it dan ;;;:n.uv^^;;:::;;; f^^ --"^^.t i-, .as tl'y when she sailed fron, l',' L" ''""'"'^ '^"« ''^t seawor- l^^^ving -eplaced th^- hooM-er So'" TT^r'? ''^ ''*^'' "''t viou.ly on her passage "0,^^^ 1 1' ' ""^f' '\' ^'''^ ^'^'' P^<- ^vas not a total loss, and ^^W .n. . v'^' ^'^^^^'^'^T'^l'^^t there The Jirsl may shortly .Z'f^J '^^:i!; ^'"^ ^« /he ju,y. per cpiipnient of anch^ns 1 ^1!. •^'''' ''''''^ ^''^ ''^''- P'^o- ^vlnm she procee''«'"" ■""g, then, opir.ion that the i.e.d.v ^ 1 l. '"' i""^^"";- '^t Bode<,ue, f am of assured to recove^ The in 'l""'*^ ''T '^?'''^ ^^'^' '^^^' ^>'" t^^e ^oanorfhy. rer<-rs to (he e< ''"^? ^'"'^ ^''" ^'^'^'^^"J '^J'"" ^e whoretliloss asl ': 7:;^;;;"^' f '''^' ^"^"«^ ' "'"^ ^^-" PPcnea, and the neghgcnee of tlie master or LAW [lEI'ORTS. nn !»;: ' m m;; l-l™ -°L^,.r" 5[:'f ,!"i- "'« ■"*'™'- have vi""I. loufci,,, it t!,e evaZ: <" ^1!,;.^ c! i" 1 nu'l, if "" '•''"'■ ^mclK,r nt llo,l,.,,uo. it u ,, ' ,V t-i ;, """•" "'i''™'"' ""= .™,k... it ,„.„,„,,„ .i,„t :'s:i[;t,:'' r;:7,,r,r'',;'" '" UK! master ;iii( 1 10 ou-iKM- n,i .i^f i ,, piocurcU Ihciv-. it c.,,,1,1 not inultrx^M- 7 ,;':;■ ',T""r,''\'^ ^»t'"*"' "-' 'lioj must sock to su,,pV .0 lo , '^ : ,,!^ ' '"'" ''-''■"• "'»» was tlicir intention • n„, cu T s v '' .'"''■"''■'"'^'»»". •>s 't appears "I- lolrni,,- an opi,,'io on t ■ • n~ l'""'*'' T\ *''" '""'"-' '"«"•» "..n-se: foritiscvo no 1 " 7 "'7 ";'"i>toa all inipianlc-nt , -ufc,! n, ,1,0 caso Lt cito" , ouH i, tL \w I , ^"""'"' '- tniaf^t;:^^^''-^?---"^--"'^ 120 LAW REPORTS. fully Justified the oficr of ubamlonnicnt of her to the uiulerwiiters. Deserted by her master and crew after evciy exertion had been made, l)iit iiiefVectually, to rescue her from the rocks where she lay. anil when their longer continuance on board seemed but a use- less risk of tlieir own lives ; waterloi^gcd, and beaten by tiic waves, which swept over half-mast high, her destruction seemed inevi- tiblc, and probably no human means could havk-, saved lier. i^hn owed, in fact, her subsequent preservation to a more powerful agency; and that from which her complete destruction might have been expected : the violence of the storm seemed to be thesingular cause of her escape. 'J'o all appearance, then, though she existed as a ship, she was at the time wlien notice of abandomiient was given, a total loss; and the assured were well entitled to consider her so, and to give that notice. J5ut though thus appaiently be- yond aid and ho[)e, contrary to all expectation she did. S;5, | which had been decided a short time before by himself, he ([ualitics the exjux'ssion he had there ustid, " that in case of capture the insured might demand as lor a, total loss and abandon,'' with this proviso, '' that the cajituve or the total loss occasioned thereby continued to the time of aban- doning uikI hr'muiiiM' fit'' (K'lMrii.'' If, then, it should be thought that the case of Hamilton v. Mendes cannot be relied upon as a case wholly in ])oint Avith the present, from the facts being differ- ent, 1 feel myself no hesitation in adopting the language and sen- timent of Lord Mansfield as perfectly applicable to it in the fullest extent; and subsecjuent cases, I think, fully bear me out in this. I-Jandiridgc v. Wilson [10 East.. 82*.»,| approaches one slight de- gree nearer the present case. There there were separate parlies on the sliip and freight on a voyage to liiverpool. The ship was captiu'cd (.>n the 21st J^ejitember and recaptured on the 2;nh, and carried into a port in keland. 1"^ viice of abandonment was given on the 1st October, which was after the recaj)ture but before knowledge of this fact iiad reached the plaintiff. There was there- fore here also no total loss in point of fact when the notice of abandonment was given— the vessel being then in safety, subject to a triilino- sulvage only. But the assured, not knowing of the recapture, was under the supposition that a total loss had occurred, -1 •J^ LAW llEPORTS. »t:uieca but ,y eiicuijKt-iiir-,.^ „.l,f r ^ subsciuiMit c-ireiim- "(•(J.xlsall V. ]!ol,l„ro, T I K-.k SI '",''"'*"'•""' ^■'"■'' ""■' ^•^'«'' i-i'cy.m.i,eiiib„fMj\.i 't^LVon "f-^"' '""■"" ™ '^ ■li'Ul. of Jl,-. Pitt .,„,1 |,,,|- .', { .• '"■' '•'■"'""'•s- AftiT the si8tm.^ cause of actio,, i„ |,oi„t of -,7; /^-'^ '""^ '""' "° »"''- "^■tio„ h,.o,„ht, ,,„, could'" ,t,o,,"Xv ";"• ""■; "'"^ "'■ tl,o dietuu, of Lo,d UukKM \l Tr , ■■ '""' '" "'■'tease l';'>-0 "head, „„tic„,t „"':,' ,/ X '"'o,/- ^r"'"',"'"^" ^ l>:urjl)ri(. ire V. Wilson k t].,. of. V ^"- -^1'*^^ ^uuliority of =^t 11.0 trial of t]K^;^;boteL^;^i 'T ^H^'""''^^^--^ ^'^' Jic expressed hm,ol^'ast^t^ ^^'''^^'l l^ ^^-P. 237,j only at the ar^unient that Kive.f !^^^ ^P'^Hon, and it was rh(nt of aetion was defeate hv '] '^ ^-^'^t'lusion tlwit the ^•-t son^thin, inco a 1.::!^? , ^ ^^l^^^^-'^- ^t i. true decision hy Lord KJ.lon. in Smith vn ''/"'' ^'^ ^'""^ IbU fron. Imn is to be eo. rua . di r''" ' ^"^^ '^ ''^''^ with this case, it is snffid^^; ^.w 'd t^^" 1'" T ''' I'^"'^' '," ^^•'"^••J': With this douot before t er th! 7 7 '"^"" ''^''' ^lowii in repeated instances P.sbv' I '^'"^ '^'^^'^^'^^o is laid son V. Scott (•' 'l\uut ".'• f Y , ^''' f'' '*'• '^ y- 47.1 Par- -'tiH,;,orctliiride d;^t:e;"rtiT'r™' '"'1'^^^ «e"t case. Ti.is ,!„, a polic/o,, .oil ' l,f J' "T' " ""^ '"■<•- Oil the tilth Be,,teu,he,\,i/"l,Srn ;,;■?' "™ "'I't"'™! Sivc, on the 13tl, Octo ha a d bL?" "^ M " "'"'"""'"'t ^"s •Jotoher, tl,c vcss,d was rc-ean ,,,1 n,^ ^ • l""''"'^ "" "'« -Ttl' I'ce.as Lonl l.;iIe,.h«,oth ' t e it . Th '' "f ''T' ^ ^» "'»' "t the ti,„e of ahaudonuu-ut there ,v,s •, , ','?" """'" "''»• """ "!>.;"..l«"'»c„t, a„d that this betTJ' . ' .-" [ f"!? "' "^" ,"' .uose,,uc„t evcts;-. the ,.everso%f w.,ici:'t;ri.t' t 'X^ell^ 1 \ LAW REPORTS. 2'>3 I'.ul y, J., ,s, that tlw. plaintiff cun only recover in resn?ct or ;;i.;ct, but .he .„,,iect i. „• e^lsid n'/^.tln'^e ', /Jl.rc 'rt^'i" ^1 vtn octA\ ten the capture and re-captiiro. Tlie cases I Jr. vo nmn toned wt'i-o -ill r> fn,i „f *i ^ , -iiii/ i^ast.a X ji'" elusive on this noint T„^ , '■ , •'' "J """^'Je"-. 'iH'tc con- ot the ship. The plaintiff, tlierefore, recovered for a total 124 LAW ilEl'ORTS. loss, for there was, in fact, a total loss at t^ -^ time of action ljrou<^lit. ISlie v,a,s a total loss when dcsortcd by her crew. iin B. & C, 71S,| may be referred to as one of the latest cases upon the general principle LAW REPORTS. 126 which we ha\ leen discussing, that the ultimate state of facts must decitle whether the loss is total or partial ; in which Lord Tentcrden, alluding to the doubts of Lord Eldon, savs : " that notwithstanding that, wc consider the point to have been well set- tled, and the rule established, by the authorities which he men- tions, and which have been already cited."' I will only refer to Uie ca.es of Doyle v^ Dalton, [I M. k Ry., 48,J and 4rdner v. Salvador, |1 M. & Ry., 11G,| which were among those cited, that 1 miiy say there is, m my opinion, at least, nothing in them that weakens or is opposed to this position : and it is unnecessary to extend my remarks by examining how far they may strengthen it In the course of the argument much reference was made to the law on this subject as it exists in the United States ; and inde- pendently of the character of their jurists, which is deserving of great consideration, we may with great propriety, and perhaps with advantage too, inquire how such a case would probabiy be viewed in a great commercial country, where the law of mari- time insurance is so conf'nually, and under such varied circum- stances, discussed and decided. Now, though it does not appear to be there held [3 Kent's Com., 270,J that where there has been a total loss at the time, and an abandonment thereupon, subse- quent events will change the nature of that loss, and adeem the plaintiff's right to recover for a total loss ; yet, they appear in a case like the present, to arrive at a similar conclusion to that which the decisions of the English courts would lead us, though by a different way ; for they look to the subsequent events and to the ultimate ate of the case to see whether the loss, which appeared to be total at the time when notice of abandonment was given, was then actually a total loss ; and on referring to several cases of theirs on this subject, it appears that they, too, would hold that in this case the plaintiff was not entitled to recover as for a total loss I will refer to a few of these. In the case of Wood v. The Lincoln and the Kennebec Insurance Company, [6 Mass., R., 479,] the ship was driven on the rocks, where she was overset, ?o that at high water her hull was nearly covered. An offer to abandon was then made, which was not accepted. The vessel being afterwards disengaged from the rocks, wholly sunk The defendants caused her to be weighed and brought to a wharf in her port of discharge fifteen days after the misfortune, and after having considerably repaired her offered her to the plaintiff, who refused to receive her. It did not appear ths^ *he vessel was wholly repaired by the de- fendants, nor what degree of injury was sustained by the" strandinc It was, however, presumed, that it was not such as rendered her not worth repairing, and it was held that then it was a partial and 16 ! ■ 320 I>AW REPORTS. not a total l(,ss^ rarHon, C. J., remarks : '• If the nla.iitJff, uhen he uia.U- the cfior to uhandoM. had a Ivirul ri-/if to ahandon the verdict must stand, notwithstanding tfie ,suhse(,ucrit recovery and arriva of the vessel ; the rjcrht to abandon is a vested risht. and, when legally exercised, the assured is entitled to reeover as for a total loss, Avhidi subse<|uent events cannot prevent uidess with his consent Lut he aftmvanls remarks, that - where a ship is stranded the assured cannot for that cause njcrely alwndon imme- (Imtoly, fur, h,j some furiumUr nn-hteul—h^ the exertion of the crow, or by extraneous assistance, the ship may he again floated and rendered capable of pursuing hor voyage r so that, in truth, It IS alter vkouIh that must decide whether the abandonment were properly made. In Poole v. Suflblk Insurance Company, 1 7 Pick Y' ^' I V"« '« oxpressly stated. The ship in ..uestion was driven cri the.ocks an, received great damage. While she lay there, an otter t.: abandon was made. The defen.lants caused her to be ta^venfrom the rocks, and having made certain repairs upon her offeve.1 to restore her to the plaintiff: who declined to accept her. 1 ark.T, ,. J in givmg judgment, says : •' That the ship at the time of .h(^ oflfer to aban.lon was in a, state of peril h> juslify Hint ofcr, cannot bo doubted. She was upon the rocks, and whether she could bo got off or not was altogether uncertain. Snhspnurnt irai/s must difnrwinv n-hefher the loss mts Ihm tolal or uol. 1 he mere stranding, hoAvever perilous, ia not of itself a total loss tor the vessel maybe relieved and the damage maybe small"' in bewell v (J. S Insurance Company, (11 Pick., 90, j the ship struck a rock on 22nd April, and beat heavily on it for forty-ei-ht liours, w hen the wind forced her on a shoal, and she sunk in seven fathoms water, eight miles from shore, and remained under water si.\ week's. She Avas abandoned to the underwriters 30th April wfio raised and repaired her, and tendered !-. :o the plaintiffs' oliermg to defray the expenses, which offer was refused. After verdict for total loss, a new trial was ordered, on the ground that these facts did not constitute a total loss. In Hall v. Franklin Insurance Company, [0 Pick., 46(J.J Putnam, J., says: "The real .state of facts at the time of abancionmcnt is to govern but that IS to be ascertained from subse(jucnt examination. 'I1ic infor- mation may show such damage as would render it expedient to abandon ; but if it should prove incorrect and over-stated, the aban- donment would not avail. The facts in all of these cases arc ex- tremely like the present, and the law thus laid down with ; ^ard totr.einmtlio.se courts, would be applicable most clearly to this. IJ-.e French hiw appears to have adopted a principle similar at feast in its effects, and leading to the same results. It does not in LAW TvUPORTH. 127 sucii a case, sanction the right to ubj.rfflon. m th.e Code dc Com- merce, [Tit. 10, sec. a8!.),j it is thus expressed: ''Lf.tlolahstme,,/ atilrc d innaciirahUlfv' m: fmif clre.Ja'Usl le mvire dvlumv' jteiit I'Irc reiver;', rvparr cf mis en efat dc enntinner set. route potw la hiu de m destination. Dans re ras I' assure .on.serrc s:ni re- murs snr Irs ns.surenrs jtonr le frais il araiir orcasione's pour I erhoue.nicnt.' As it can only bo ascertained hy future events ^v]lether 'he sliip wliich is stranded is capalde of 'being repaired, the reeovejy as for a total or [.artial Idss in every cnse^of strand- ing inust^Avholly depend upon subs(>(juent circumstances: ami tlnis the law of tins great commercial nation appears in this respect to agreo also with our own in arriving at the same result. It was insisted U])on at the argument, that the Judge, in his M to repair her; nor have they taken exclusive possession of her, further than having brought her into he harbor of Pictou ; the plaintiffs having refused their offers to take iier, she necessarily remains in their hands. They have not as tar as 1 can discover, assumed any control o"er the vessel nr ■ m any way acted at all inconsistently with their declaimer to ac- cept the abandonment. They have not delayed the plaintiffs from repairing the vessel themselves if they had been so disposed nor w iii 130 LAW REPORTS. have they sustamed any delay or prejudice from their conduct ; but even it such a conclusion could be dra^n from the facts, it should have been expressly found by liie jury. It is said, indeed, that tins js one of the issues in the c.'ise, and was so put to them by the learned judge, and that they must be taken to have answer- ed It affirmatively. But does it follow, that under the charge they could not : ave found their verdict without passing upon this pa/. ticular question. If the jury had been of opinion that there was such a constructive total loss as justified the assured in abandoning, and the abandonment once made was not defeated by subsequent events as they were instructed, their verdict must have been for the plaintiff without regard to this particular question. If, then, the acceptance of the abandonment became material, it should have been put to them in such a manner that they must nccessarih, have tound it before a verdict could be supported on that ground. In that view of the case, I think, with great deference, they should have been told that if there was not a total loss at the time when the action was brought, the plaintiff could not recover for a total loss unless they were of opinion that there hod been in fact an acceptance of the abandonment. I do not think the jury would have been warranted in drawing such a conclusion. In sending tlie case to another jury, I think they should be instructed to find for a partial loss. LANGILLE VS. LANGILLE, ET AL. Hilar!/ ^'«-w, 1841. Where after delivery of a Oeed the grantor remains in possession, trespass will not He a.ainsl h.m or lus tenant for cutting trees previous to actual entry of grantee. Alexander Langille, by deed dated December, 183.% granted certain lands to George Langille, his grandson, the plaintiff in the present action. In July, 1839, the plaintiff, for the first time entered on the land, and claimed it as his own. Upon this entry he brought trespass against the defendants, then in possession under the grantor, for cutting wood thereon. There was a verdict for defendant. A rule was obtained for a new trial, on these grounds : Is.- That the delivery of the deed from grantor was a valid, complete, LAW REPORTS. 131 will not He against and good delivery, as a deod. 2ndly--That if so, it transferred ipso facto to the plaintiff possession of the land described therein, and consequently enabled him to maintain trespass, ordly— That no argument could operate as a licensee to enter unless pleaded. Hill, J.— As to the first point, I think there has been sufll- cient evidence to shew that the deed was delivered : and upon the tliird point, I think it clear, that under the general issue the defen- dants could not shelter themselves under any license, for that must be specially pleaded. The difficulty, if any, arires on the second point— the fact of possession. Now, the principle upon this is clear. To maintain tresspass, the plaintiff must not only hav the freehold in law, but an exclusive possession in himself. For trespass qiicmi rla/mim freo-it 13 an action to recover damages for an injury done to the possession only. The freehold in law may be in one, and the law- lul possession in another. The plaintiff, therefore, must undoubt- edly shew a possession in himself, and an exclusive one, or he has no right to maintain this action. It h;is been urged that the deed being delivered, carries with it the possession, so as to enable the plaintiff to maintain trespass ; but this position must not be taken so broadly, because a deed frequently transfers tiie freehold with- out the actual possession, and without conferring upon the grantee the right to bring trespass against a party in possession. This is so in the case of there being a subsisting lease at the time of the deed given to the grantee, and many other cases. In the case of a mere trespasser and wrong-doer, the delivery of the deed may carry with it the possession, so as to enable the tenant in fee to brino- tres- pass. That is a reasonable doctrine for it not to lay in the mouth of any person, without a shadow of claim, to commit a trespass, and then to fly to some nice technical rule to cover him from his respon- sibility to the undoubted and undisputed owner of the soil. But I find no cjise like the present where trespass has been maintained by the grantee against the grantor who remains in possession. This is not like the case of Butcher v. Butcher, (7 B. & C., 399. 1 cited for plaintiff at the argument. In that casv^ the defendant tiad no claim Avhatevcr to the premises, nor ever had any; he was a mere wrong doer. In January, 1827, the plaintiff was entitled in law to the premises, not claiming through the defendant; on the 10th March, 1827, he entered, with his servants, and began to plough— the defendant then having entered, and being in posses- sion. ]S'ow, I apprehend that if Butcher the phiintiffliad derived his title through Butcher the defendant, who had never given up the possession, the decision would have been different. It mav K» 132 LAW REPORTS. remarked, too, that in Butcher v. Butcher, the trespass was com- mitted subsequent to the *^ntrj on the 16th March : in the present case the trespass was committed either before the actual possession or was in progress of committal at the very time. It may have been perfectly understood between plaintiff and the old man, that posses- sion was not to follow the delivery of the deed. Circumstanced as the parties were, I think the supposition far from unnatural. Upon the ground, therefore, that plaintiff has not shewn himself m the actual possession of the locus, but that he has shewn that to have been continually in the grantor, I think that the verdict was right, and that the rule ought to be discharged. '^V: MILLER vs. LANTY. Easter Term, 1841. Where party entered .nto ,K.sBession of land under agreement to purchase fro t: one repr.genting himself as owner under an allotment of ancient date, held that his titl. was Kood as aRainst a grantee holding under grant from Crown, dated four years after his entry, and setting out f«ct of allotment h.v.n^ been made to individual of same name as the person from whom defendant pmdiaacd. Held also that defend.nv's attornment to the lessor of plaintitf was, under the circumsUnce moperat.ve, detendant being under the impression that Miller hay appoint- ment, ut C'randall's. 'f he defendant was not there. Miller show- ed them a grant, })ut it was ordy pii!t]y r<'ud. Crandall told them Miller owned the ianil. and tliey. aiVcr u whole day's conver,sation about it, agreed to give Miller £30 for 100 a(;]c:^ A (duiilar note was left at d'andail's for defendant to sign, which it appears he afterwards did. The Lanty.s Bid)S(.'([uently refused to i)ay these rates. A witness .savs that the deiendant's note was given up on condition that he avouM give up av.d relinfjni.--.li tlie land, 3u!)se- quent to which the defendant signed an attornment where he had heen drinking, adnjjtting himself to he tenant to the plaintiff. Ilia hrothevs were i!i tlse same tavern, and refused to sign any such acknowledgment. The Avituess to the attornment states that he thinks the defendant would not have signed the attornir ..'ut if he had understood it ; and he thought he could not understand the paper, partly from his natural iuoanaeity avid pavtiy from drink. tie added, however, tluat the defendant understood, aiid he (the witness) explained to him, that if ho signed paper, and paid the plaintiff sixpence a week for the premises, he might stay there as long as he pleased, and that lie (the^vitness) use 1 great exertions to induce defendant to sign it. Anotlier of the jdaintiff's witnesses (his son Joseph Miller) says that the attornment was willingly signed by defendant, .vad fully explained to him : that he had been drinking, but winiess thought he knew what he Avas about. These are the main facts 'proved uj>on tlic trial, and by this proof the three facts upon which the plaintiff rests his claim are fully established. 1st. — That plaintiff had a grant of the premises. 2nd. — That defendant attorned to him. 3rd,— That he piomised to give up the premises on his promissory notes having been re- turned to ban. iJut on the part of the defendant it is equally clear tint this tract of ]and had been allotted to one Griffin before tiie grant to Miller ; that a person calling himself Griffin had agreed to sell the whole of it to defendant and his brothers ; tJiat the agreement was reduced to v. riting ; that the defendant and his brothers entered upon the land under that agreement, and had built their houses and cleared upon their respective lets three or four years before the grant passed to Miller, and that Miller knew that they Avere living on the land and cultivating it at the time that he procured the gi'ant. Under these circumstances? T am of opinion that the grant to :c. fifteen or •r four years I that Miller by appoint- Miller show- ill told them coMver.satioii (fiuiilar note ; appears he .0 ])My these fiiven up on i;ind, 3u!)se- here ho liad aintiff. His xn any such ).tes that he tnr^^nt if he lerstand the from drink. ijid ho (ihe ltd paid the ay there as exertions to "s witnesses [IS willingly he liad been *ont. )y this proof m are fully .0 premisew-i. le pjomised ig been re- ir tint this he grant to :1 to sell the eement was jers entered heir houses rears befoie I they Avere le procured \ie grant to T 1 LAW IIEPORTS. 135 Miller is absolutely void. Even supposino- that the man who re- presented himself to be Griffin was not the person to whom this' land had been plotted, (a presumption which. 1 think, we ought not to entcrlaiu without even prima facie proof to raise a doubt of his identity.) yet the defendant and' his brothers treated with him ns owner of the land which had bton called (xi'iffin's for a lon^ course of years. The vendor did not attempt to cajole tliem out of their money ; luit promised to return in tlio fall— convey to them a title, and then claim the payment. In the meantime they enter with his permission, not a,s mere S(juatters upon land without any color of title, but as bai-gainers for ihe purchase of one hundred acres e.uch : and therefore 1 think that the defendant, when ho entered upon this land, Vv'as, by operation of law, in possession ^'f the whole one hundred acres he bad bargained for. lie built upon it— com- menced clearing it, and has gradually extended h s clearing in the usual and customary manner, until he has now fifty acres cleared, It was contended by the plaintiffs counsel at the argument, that at all events the plaintiff was entitled to recover a part of the tract, for the defendant's possession could only pr^..oot what he had actu- ally cleared at the time that ihe grant jjassed. In this opinion I cannot concur. I think that under the proof the crown was out of the possession of the whole tract at the time that the grant pas- sed to .Miller. His very grant recites the pi-ior allotmenUo Grifiin, by whofie name this lot had been designated for many years before! The deiendant and his four brothers had entered under a person representing himself to be GrifTm, and were each of them in posses- sion of their respective one bundled acres at the time the tyrant passed to Miller. If that possession was wrongful, and Griffin, or the person calling himself Giflin, had no right tx» sell to them, still the regular steps ought to have been t;;k^n to remove thjm before the crown would grant it to another, in wliich case they would have an opportunity of shewing their light and traversing that of the crown. AVe had occasion to go very fully into the consfderation of this question in the case of Wheelock v. McKoMn, a few terras ago. Indeed it lias l:»oen often brought tuider our consideration, and tlie court liave uniforndy (h>cided that where there is a plena posse>;sio held against the crown, particularly under color of title, that the crown must re-inve.'it itself with the possession before it can grant; and if it grants while it is so out of posaessior, that grant is void under the s^itutc of 8 Henry (1. cap. 16.— fVid. 12 East., !•(), and cases there cited.] As late as the year Ibi'U, the Court of Common Pleas decided that a grant of Charles l.st. mad.e in 163!. (under which there had been a long enjoyment.) was void, because the premises granted i\ ; II 136 LAW REPORTS, were under lease at the time, and the lease was not recited in the grant. Best, C. J., in delivering the opinion of the court, says : " We take it to be a principle of the common law of this country, tkn if the King makes a grant which cannot take effect in the manner in which it ought to take eflcct according to its terms, we must conclude that the King has been deceived in that grant, and therefore that the grant is void.— [5 Biiig , 848. | IS'ow. a grant from the crown ouglit to 'take etiect by transfer- ring the possession at once from the crown to the grantee, because us the King never gives livery of seisin, his grant conveys the possession to th- grantee as eSectually. in the eve of the law, as livery conveys it to the feoffee. But the feoileo cannot give livery when there is an adverse possession against him ; neither can the grant of the ci'own convey the possession to the grantee, when that possession is at the time actually in another. The grant to Milhir, then, cannot take effect in the manner in which it'^ought to take effect, ^ We must, therefore, consider that the King has been de- ceived in this grant, and that it is consequently void : nor can it be doubted that the crown was deceived in this grant. Can we fer one moment suppose, that if the government had been aware that thors were several houses then built upon this tvjK't of land— occupied by persons who had come in under color of title from one who, if not the man to whom this land had previously been allot- ted, had personated him, and sold or agreed to sell it to those who. upon the flvith of that agreement, had entered, built, and cleared upon it, the King's representative wuuld have authorized the issu- ing of this grant to a stranger 1 We cannot imagine that any ser- vant of the crown avouM have felt disposed so to act; and if he did, fortunately the law will not sanction such an action. I there- fore hold that this grant to Miller is utterly void, and that he took nothing under it. As it respects the attornment, even if it were free from the ob- jections made to it, I should think it couid not, of itself, create a a. title in Miller, or authorize him to turn a man out of his pobses- sjon who did not receive the possession from him. A man in the defendaufs class of life, is assured by the plaintiff's atfrrney a„d others whom ho may well suppose to bu better ucijuaiuted with ,nich matters than himself, that the plaintiff has a good title to the land of which he is possessed, and the title to which he has not himself completely gained. Under this irapres;.ion, he first agrees to be- eoine a puruhaser froui him, and gives his not(;, payable upon rewivmg a good title. This agreement is afterv^ards rescinded, and he signs an attornment acknowledging himself to be his tenant, under the sawit^ impression. The fact, however, turns out to be I %':Cc^'^%. cited in tho ourt, says : lia country, Feet in tho s terms, we grant, and >y transfer- ee, because •onveys the the hiw, as give livery er can the , when that t to Millftr, ht to take as been de- nor can it :. Can we been aware t of land — le from one been allot- tliose who, nd cleared d the issu- at any ser- and if he I there- lat he took jm the ob- if, create a his pobses- nan in the :')rney a, id . witli ftuch the land ot himself lees to be- able uj")On rescinded, liis tenant. Jut to bo, LAW REPORTS. 137 that A'Idler has no title— that the representations made to the de- fendant were misi-epresentations ; and I therefore think that he is not bouiKl by the attornment, nor by the promise to relinquish the possession ot the laud to Miller in consideration of his receiving back his promissory note, which was a nullity. But it is said, that Miller not having a title, although a fact yet resulted from the law which the defendant was bound to know, and that thereibre he cannot bo relieved from agreements entered into under ignorance of the law. To this, I would briefly arswer • that the grant undei- which Miller claims a title is void," not from any delect it itself, but owing to a fact (khor.s^ the grant, i. e., that the crown was out of possession when it passed. There is no 'proof that the defendant ever saw the grant, or knew its date; and there- tore he is not proved to have known the fact which renders it void. Having been assured, then, that Miller had a good title, which was not a fact : and having acted under that irnpression, he is not bound by the promises made under tli<'«t misrepi-esentation. I have thought it right lo express my opinion upon the invali- dity both of the attornment and ihe promise to relinquish the ios- Bcssion to Miller, although I acknowledge that I do not think it very necessary to have done so ; for the grant is the foundation of the plaintiff's claim ; and, as that has failed him, I do not think he could sustain his action upon the circumstances that grew out of his possessing that giant,, and which should, I think, share ita fate. I am of opinion that the rule should be discharged. Hill, J.— I am opinion that the grant tx) the plaintiff is wholly void, being made directly in the teeth of the 8 Hen. 6. cnp. 16, and 18 Hen. 6, cap. (3. The cases of Hayne v. Redfern. [12 East * %,] and Alcock v. Cooke. f.O Bing., 340.] are decisive upon this case ; and the law apphcable to it is clearly laid down. The stat. of 8 Hen. 6, cap. 16, recites, that the lands and tenements of the King's subjects are seized into the King's hands upon the in- quest of escheators, or let to farm by the Treasurer or Chancellor before such inquests are returned : and to remedy this, it provider that no lands or tenements seiaed into the King's hands, upon inquest b(;(ore escheators or commissioners, be in anywise let or graiited to farm by the Chancellor or Treasurer until the same in^ quests be fully returned into the (^hancery or Exchequer , but all such lantLi and tenements shall entirely and continually remain in the King's hands until the said inquests be returned, and by a month after the said return, unless the party aggrieved proffer to traverse the inquest in chancery, and ofter to take the l.amlA to farm ; and if any letters patent be made to the contrary they 138 LAW REPORTS. \ '4 ■?■ -.!> shall be hol-len for none. The 18 Hen. 0, cap. 6, recites the above provisions, and states that, to evade it, divers persons had sued to obfiiin gifts, grants and farms, hy patent : pretending such were not comprised or reinedi(?d by the former act. though within the same niischief : and therefore provides that no letters patent shall be made? to nnj person, of any lands or tenements, before inquisition of the King's title in the same be found in Chancery, or in his E.xohecjuer rctuvned. if the King's title in the same be not found of record, nor Avithin the montli after the said return, if it be not to him or them which tender a traverse as before men- tioned : and if any letters patent be made to the contrary, they shall be void, and holden for none. Apply this statute to the case before lis. Here is the crown declaring in its very grant, that the laud mentioned had been set oft' previously to Gritlin : whether by letters patent, by lease, or otherwise, it matters not, the possession iiad l)een parted with. We have, at the time of the grant, the defeii'lant in full possession under a purchase from a person whom we must i>vesuniethe GriHin named in the grant. We have this xi'.vy tract called and knoAvn as Gritlin's grant, o6 years ago. We have the purcliase and possession of the defendant fully known to the plaintiff. We iiavc the very strong fact that this 500 acres wiis markcil on the field book and plan of Chester, as GrifBn's ; and this ftict leads me to tiie conclusion that these lands are iricluded in the general grant of Chester township, for I believe all the old to\v?ioners be in anywise let or ,t;rantod to farm, until the same in<,ucst and v^K l.ct bo lully returned into the t hancery or Fxche-iuir. And t^he hitter act, which was p.,ss..l to remedy an attempled evasion ut tiie other, enacts : tiiat no hfUrs ,>nln,t ..hall be made t.. anv person^ ot lands ur tenements before iiKpiisition of the Kin-^s title ut the sa.,.ie be found in dio Chancery or Exche.iuer retunied. H l,c A»nu-^ h>k nj Ihr sawr In: nnf foinni of rrronl. mv withil he month after the same return, if it'be not to him or them which ender their traver.'^es as before mentioned : and if any letters pa- ten be miule to the confary. they shall W. voi.l and holden for none I he object ot which,- ^;vj. Lord J'.llenboroMli' Ka.t 11-, J "was, according to the words of the act, ihut m all cases in which the Ivmgs title did not appear upon record, the jiossession should be open to whoever conid claim again.st the Kin'^ till the hnal decision of the right: and that any grant to obstruct hiin should be void; and the authorities corresp.ond with this objoct - ihe doctrine of the common law is : - that wherever the crown makes a grant whieh it lias no power to make, or which cannot ake effect, as on t^he face ot it, it pur, .rts to do, the King is sai.l to be deceived, and the grant is voi.l ; rbr it is tlic duty of the sub- ject to see ♦hat the King is duly informed, fbr the King hath the charge of the con -..onwealth, and therefore cannot atteml his pri- vate business, and the grants w.hich he makes he maia-s as Kiuiz and therefore as King he ought to be so instiucted, that his pur- pose and intent shall take effect," This grant shews that\he uown must have already parted with the possession. Tf it has not,, theretore, lawfully regained that right which it has not been shewn to have done, the grmit is inconsistent with itself, and upon the face of it void. To induce the crown, then, to do such an let ^■hich noi.her comports with it.s ).<,,,,- nor its power, restrained as t IS both by the common and statute law, it is clear that it nmi-t have been deceived by a misrepivsertation of the true facts of the case. These facts were well known to Miller, the grantee, and we imy well believe that if whe. he applied for the grfut he had com- inun.catcd to n his own knowledge of the facts, a yant could never liave been made to the prejudioe of others, who, under such cii- cumstan(;es, were then actually dwelling upon the land, As the crown, tljen, - can only grant what it may kurfnlly iryanfr 1 1. Co., 52, j and that rule has been here violated, ii bis bee de- ceived, and the grant to Miller is void. Tlie lessor of the plaintiff; then, would have no ground on wliich 18 112 LAW IlKPORTH. lie could recover in the action, unless the (lefcndant has prcn-luded iiiniHelf From sctlin-j; up any defence to it by the liu;Us which appear iti cvidenco. The dolendant, after Miller had obtiuned this j^rant, i-ntorod into an a;4rccincnt with him for the purchaHC of this lan(l, which he was already claiming to hold under Griilin, and gave his [)romis8ory note for the stipulated price, wh^-^h Honic years after- ward, being unal.'lo to pay. was giv(!n u[) to him by Miller, on the underatanditig th;-as adduced. These lots adjoined and were boun- ded by the waters of the harbor of Halifax. v;hich liad actually. iVoni year Lo year, encroached upon the land so, that the ordinury high water mark in 18, and still more at the present time, was for within what w'as tJte orieinal bounds of the lot. li: 181t) the crown granted the water lots C and D in front of division letter W, extending 400 feet into the harbor, to William .Vllan, Robert Hartshorne, and two others, in severalty, from one of whom the defendant derives his title. In 1818 Mrs. Jane Donaldson obtained a grant from ihe crown, of the lots numbered from one to six, in division letter W. (inclu- ding therefore the lots above mentioned, then already in posses- sion,) together with the u-ulcr lofs number 8 and 4, ir. front of tlie same number. And by the description in this grant, and the plan annexed, we lind that the water lots in the grant of 1810. are those in front of lots numbers 5 and (5 thu.s granted to Mrs. Donaldson. Tlu! tresspasses which arc the subject of this action, are alleged to have be^in committed on the plaintitt'Vi lot, No tj. The defen- dant claims the luriis in ijiio as being Avithin the limits of his water lot held under the grant of 181 »i. LAW REPORT?, 14.' -'lu- II [LL, J. — This was an action of trespass tried in Hilary term last, wherein a veidict was found for the plaintiff. A rule Nisi has passed to set this verdict aside and grant a new trial. Tlie trespass complained of is alleged to have been on lot No. (I, letter W, at Dartmouth ; and the only (question, as it seems to me. is as to what is the true line of this lot, on the western side, which looks into the harbor of Halifax. The defendant ov, ns a lot adjoinin-^ westwardly the lot of the plaintiff, part of which is covered with water : and insists that the /oriis forms a part and parcel of this lot : and if so. then there ought to have been a verdict for the de- fendant, because he had a right, under the pleadings, to do all that he has done, supposing him to be the owner of the /ncus-. Now. the plaintiff derives his title to the lot No. 6. upon which the tres- pass is alleged to have baen committed, under a grant from the crown to Mrs. Jane Donahison, dated 13th August, 1818. Tin's grant makes it, beginning at high water mark, on tiie eastern shore of Halifax harbor ; then runs from the shore several courses until it brings you to the east angle of a lot granted to the late M. Wallace ; and then it directs the course to be from thence south C)o degrees west by the south boundary of Wallace's lot 100 feet to the said shove— that is. the eastenrshore of the harbor as pre- viously mentioned. The course is then easterly i)y the same, (that is, by the shore to the eastern angle of the water h.t No. ,'> granted to W. Allan and others;) thence the grant was south r.,') degrees west into the harbor 400 feet : thence south 120 feet; thence north 55 degrees east 400 feet to the shore at high water mark aforesaid : thence southerly by the difllerent courses of the shore to the place of beginning. The defendant claims the /or//:.- to be his under a grant of water lots C and D, in front of division letter W, to W. Allan and others, dated July, 3816, ex.jndino- 400 feet into the harbor. The grant of 1818 to Jane' Donaldson appears to b. a grant of confirmation, for the lot had been previ- ously possessed and occupied. It appears from the case, that pi'e- viously to the date of this grant, the sea imperceptibly and giadu- liWy had encroached upon and washed away part o^' the shore, and of the land which originally might have been within the bounds of lot No. 6: and that at the time of its passage there was not 100 feet in measure left between the eastern angle of M. Wallace's lot and the high water mark at the shoi-e ; but that to complete this, you must run into the harbor and take in the /onrs. And the plaintiff contends that he has a right to run and complete his 100 feet ; if he has not, and must be bound by the high water mark as it was in 1818, then the whole trespass complained of was within the bounds of defendant's lot, as granted to Allan and otheis, 140 LAW REPORTS. r through whom he chiiins. The grant to Jane Donaldson, it must be remarked, hounds the lands therein on the lot granted to Allan and others. Now, the plaintift" can stand in no better situation than Mrs. Donaldson : the grant then that she took from the crown bounds hei" upon high Avater uiark. and the language is, that the line is to follow the courses of the shore at high water mark. IJut it is contended, that as originally the high water mark extended into what the defendant now claims as his, and as the possession was in conformity therewith, the crown could not, l)y its grant to Allan and others, pass anything falling within this original high water mark. But the eases cited from 3 k 5 ]>. k C, are con- clusive upon this point. That where the sea recedes, and grailual and imperceptible accretions are made to the land adjoining the sea, these belong to the owner of the land adjoining: so where the sea urakes imperceptible and gradual encroachments upon the land, these belong to the crown. We have, not long since, had this I question mooted in this court, where the Avhole doctrine touching it was very full gone into. I take it, therefore, to be quite beyond dispute, that the crown had the right to all the water, and land covered with water, up to high water mark, on the 13th August, 1818, when it passed the grant to Mrs. Donaldson : because what- ever may have been i)reviously the precise point of high water mark, that if altered by degrees would give the crown a right. The (luestioii, then, for the consideration of the jury, was to ascer- tain where this higii water mark was hi 1818. But their atten- tion Avas drawn to high water mark as it originally existed, and the verdict has evidently been tbunded upon the assumption that the plaintiff had the right to sustain his action for any act of force committed l>y the defendant within that original mark. The (jues- tion as to the right of the crown, in 1818, to the encroachments made by the sea, appear to have been reserved fur the consideration of the court. The plaintiff, then, has obtained a verdict for acts of trespasses committed, as appears from the evidence, below high water mark, as it was in 1818. It has been urged that the one hundred feet given in the grant of Mrs. Donaldson from the eastern angle of Mr Wallace's lot. are not limited and restricted by the words '• to the shore,"" but ihat the plaintiff has the right to his complement of feet though they should carry you beyond the shore. But this cannot he so. Where a grant or deed gives a starting point from which you are to run so many feet to a natural fixt^d and determined boundary, the boundary is the itc plus ultra. A mistake in the measure- ment cannot operate against that about whicli there can be no on, it must c(l to Allan ,QY situation n tlic crown is, that tlio nark. Hut k extended I possession its grant to •i^inal liii:;!! J., are con- iind tjradual Ijoining the where the on the land, ce, had this le touchin;^; uite l)e3'on(l r. and land 1th August, >cause what- hi^h water ,vn a right, k'as to ascer- thcir attcn- ited. and the on that the !ict of force The (jues- croachnients :onsideration )f trespasses watei' mark, in the grant rallace's lot. shore,"' hut feet though annot he so. liich you are id houndary, lie measure- e can be no LAW REPORTt<. 147 mistake. I>esides in this case such a construction would, indepen- (h>ntly of being against all principle, be absurd, and in reality give the plaintiff nothing ; for, granting him entitled to his one hundred i'cet, and to run beyond the shore to complete it, still the grant directs the line to run from thence south easterly " by the shore." Now, certainly running in the water would not be running by the shore, and avc must therefore retrace our steps from the extreme west point of the one hundred feet directly to the sliore, in order to enable us to run by it southerly, as the grant directs. This, in fact, would give the plaintiif no more than if he stopped at the shore, unless indeed it might be the imaginary line itself It has also been urged, as a technical objection, that the defen- dant is a tenant in common Avith others of the lot he claims, and therefore is not entitled of himself to set up the defence : but no authority has been cited to show that one tenant in common can- not in any and every Avay defend the possession and occupation of the Avhole lan. & C, 4*.>r).] This principle, being established, appears to me to be conclusive on the whole case now^ before ns. Cntil the grant, in 1811S. to Mrs. Donaldson, she had (t /lossr.ssiai/. oidy of the lot which adjoined the shore, but no sufficient title against the crown ; and if her title had been ever so good, the prin- 148 LAW REPORTS. I' ciple whicli 1 li;ivc nunitioiied would have limited her right accoid- \nrf iis the sea advanced upon the land, unless she took steps to reclaim her possession against its encroachments. iVlrs. Donald- son, lunvcver, not only had no siifticient title to the lots in letter AV, but by her acceptance of a grant from the crown she precluded herself from all claims inconsistent therewith. The crown, then, having a clear and indisputable right to the shore — that is, to the liigh water mark as it then was and might be— and Mrs. Donald- son being in possession of the land above it, the croAvn granted, in ISKt, to Allan. Ilaitshorne and others, the water lots C and D, in front of letter W . — that is, the Avater lots in front of Nos. 5 and 0, Ictler W, for so it is cleavl}'- and demonstrably shewn by the suli- se((uent grant of 1818. The term water lots might possibly, if taken /)tr .ve, be of a doubtful meaning ; but here, explained as it is by tlie subscfjuent grant, I think there can be no doubt as to what was intende. Donald- jranted, in and D, s. 5 andO, r the suli- lossibly, if lined as it 3ubt as to as water re at this situated, , of 181G, r not that low "water those two hink. also of 1816 rk — or, in s in letter lots. Old J mark. It le breadth ts to the et to the e) to the others;) !t into the dred and e at high es of I ho. i;e. by the nark, and t at high in letter .rk. Can dso boun- LAW REPORTS. 140 ded hy Ihe .vAore~the proper and correct meaning of wliich would extend it up to high water mark— that any other than the same correct meaning is to be affixed to that word, and that it is to bear two different significations in one and the same description of oiv» and the same continuing line \ It is true the line from the street IS described as oiu- hunil red feet to the shore, but the shore is the substantial part of the described land : and if there be any incon- sistency between the measurement as stated and that, tlie former must be rejected in tavor of that which is fixed and certain. The Attorney General, in support of his view, would read it as if it were .ne hundred feet into the shore. But tliis. besides being contrc^ry to the obvious and proper meaning of the word, and oi)'^ posed to the sense in which the sltove is spoken of in the rest of the description, would be reversing the rule by whiidi grants from the crown are to be construed, and giving a forced construction in favor of the grantee. He also argued that the grant to Mr.s. Donaldson was to be considered as a grant of confirmation, and was therefore intended to extend the whole one hundred feet to confirm her prior possession ; but if the crown had previously granted in 181G the water lots, which I consider to have included the whole shore up to high wat^r mark, it could have had no ri/V/. The declared intention to exclude any creditor or class of creditors will not render such an assignment ni- valid. — Ilnd. The assignor continuing in possession^ of the goods as- signed is not a conclusive badge of fraud.— y/v/f/. ATTORNMENT: Where A holding land under an agreement for purchase from original grantee was prevailed upon, by B claim- iu"- under a subsequent grant to attorn, held that such atrornnuent was not sufHcient to enable U to turn A out of his possession. — Miilu- r. Laidy. AUCTIONEER: ' , , Receivmg an article, with instructions not to sell under a certain sum, is liable if he part with it for -a less amount.— M^ww v. Chamberlain. BOUNDARY : , . . A boundary may be settled between adjoining proprie- tors by parol. — McLean v .lambs. The grantee of water lot bounded on the shore is entitled to take up to high water mark, and the line of his grant chan-ios as sea encroaches or XQUxQ^.—Esson v. Maij- S7 11 >» 20 27 28 182 hornj. 141 Land bounded on the sea shore increases and diminishes with the encroachment or retirement of the sea.~i6«^. 114 INDEX. 153 Page. ST 87 20 27 28 30 132 I 144 inishes -Jbkl. 144 making it void unless land granted Avas settled on within a certain time, held that a subsc(}uent grant was invalid, not being founded on inquest of office. — ^ Whcchc/,- i\ McKoirn. Where a grant to A contained a recital that the land had been formerly set off" to B, and where a party was in possession under agreement to purchase from E. held that the grant was void, the crown not being in possession. — Mi.lkr v. Lanlij. INSURANCE : Where a vessel being in a hopeless condition, notice of abandonment was given to the underwriters and ac- cepted by them, but by fortuitous circumstances she was saved from her perilous situation, held that the underwriters were not liable for a total loss. — Kenny V. Halifax Marine Insurance Company. LIMITATIONS— STxVrUTE OF: Vide Acknowledgment. 73 DAMAGES: p„^. In an action for a breach of promise of marriage, held ^ that pregnancy might be given in evidence in aggra- vation of damages.— G'//m we r. Deicur. EVIDENCE : In an action for breach of promise of marriage, the state- ment of a witness, that he had heard a person say ho had had connexion with the plaintiiT, is not admis- sible. — (iibnare c. Dewar. Where the deposition of a witness was taken, and the witness was examined at the trial of the cause, but that trial was set aside, and witness died, held that such deposition could be used at the new trial— Rrmini V. Boole. Vide Dainai^'-ei^. FRAUD : Where question of fraud arises on a bill of sale to a cre- ditor, it is exclusively for the consideration of the ]\XYy.— TarruU v. Sawyer. GRANT : Where a grant of land by the crown contained clause 108 20 16 132 113 154 INDEX. M 1< !' Kt% NONSUIT: raft A plaintiff may become nonsuit at any time before the delivery of the verilict. — Gran/, v. Profcr/ion fnnn- rnnce Com/tani/. POSSESSION : Where a boumlavy is a straight line terminating in a liar'oor, the fencing by that line to the water's edge, and possession of land so fenced, is sufficient to give possession of the land covered with water. — McLean v. Jacobs. SEAMAN : Where a sc^ nan shipped for an entire voyage, and be- ing injured while in the performance of his duty, was left at an intermediate port, held that he was entitled to wages for the entire voyage. — Rals/nti v. Ban>s. Where the owner furnishes a seaman, so injured, with surgical aid, and maintains him at such intermediate port, hold that he cannot set off the sums so expended against such claim for wages. — Ibid. TENANT: ' Notice to quit in April next, the tenancy expiring on the 8th of that month, served three months previous thereto, held to be sufficient. — Brown v. Boole. 108 TENANT IN COMMON: One tenant in common may prostrate, and justify pros- tration of, any building erected by a stranger on the laud of which he is joint ovfneY.—Esson v. May berry. 1 50 TRESPASS : Will not lie against grantor or his tenant, by grantee, before actual entry of grantee. — Langille v. Lan- irilk. I'^^O I 18 48 A^ raft me before the itcrtion Insn- U iiiniatin^ in a wuter's edge. icierit to give 3r. — McLean lyagc, and be- his duty, was e was entitled tnu V. Barss. I injured, with h intermediate IS 30 expended 1 '18 48 J expiring on )ntb8 previous V. Boole. 108 1 justily pros- tranger on the ! V. May berry. 1 50 it, by grantee, gille V. La?t- 130