IMAGE EVALUATION TEST TARGET (MT-3) {'/ M 4^ i^'Mi 1.0 1.1 K£ 112 US 1.25 iu I Pi I 2.3 2.2 2.0 1.8 1.6 o 7 150mm >1PPLIED A IIVUG"^ . Inc jS 1653 East Main Street ^^FI: Rochester. NY 14609 USA ,j^F I= Phone 716/4820300 ^S'.^S. Fax: 716/268-5989 e 1993. Applwd Imaga. Inc All Rights RsMivad ^ A \ \ V ^^ ^A '^\ . :-.i;i-;-.^ CIHM Microfiche Series (IMonographs) ICMH Collection de microfiches (monographies) Canadian Inatituta for Hiatsrical Microraproductiona / Inatitut Canadian da microraproductiona hiatoriquaa ^^*t Ttchnieal •nd Biblio«r«phie Notm / NotM tacfiniqutt et bibliograptciquM Tht Inttituta h»% atttmpttd to obtain tha baV ■> CASES IN THE SUPREME COURT. NEWFOUNDLAND. ilyt:^*,, ■ .iJ^ 1 I i, i - ; i < SETECT CASSS *IOH TBB RECORDS or THB Sb^ttmt 42r0tirt OP NEWFOUNDLAND; WITH A TABLE DF THE NAMES OF CASES. AND AN APPENDIX. Vt icirent civrs, quod jm de mtaqve re gviique dkhtnu eiHt ammM pramunircnt Dm. 1, 2. 51. 10. ' ^' Let the Juilget produce the reatant of their senteHce opeHhf ; to that vhtt i$ Jree tn power may yet be limited by regard to Jante OHd reputatum.—Loti liACON, de tugmtntis •cieaUMiim. Above all, let the Judgmentg^of the Supreme md Principal Courts be dtHgentla and faUhfuUy recorded ; espedally in weighty ,aH$e$, amd partieularh, *uel u» are doubtful or attend^ unth difficulty or novelty ; for Judgments or* the oacYoM oft/te Laut, as Laws are the anchors of iitates,^h9id Bacom ua augmsotis ■cieutiMrum. -•w«». HENRY WINTON. ST. JOHNS. NEWFOUNDLAND J AND BALDWIN tc C.nxnnr.K inwnnw ' 1820. I t 'I HIHRY IriNTOW, FRtMTIR, IT. WHM*f, KEWfOWMOLAMD. .■■>'-t TABLE or THI CASES REPORTED. *»♦ »■ A. Ph». Pag.. tj ;(■ TTwooD V. Rough. . 128 Attwood V. Lilly 115 Acadia, Sloop (case of) 188 Andrews v. Andrews . . 205 Appraisers v. iM orris . . 306 Appraisers (memorial 0^359 Avery v. Kent 382 Atalania, Brig (case of) 411 B. Brine v. Meehan . . 1 & 31 Brine, Meehan v. . . & 8 Broom v. 'Williams 14 & 19 Bristowe y. Butler & Tudridge .... 17 & 20 Butler & Todridec. BriBtow« V. . . "l7 & 20 Bickley, Cockseley Barter v. Johnstr Baine v. Nichohb . Brooking v. Little . Brooking v. Byrne [ Brophy y. Attwood V. 25 .. 39 ... 51 ... If8 .. 150 (—.wp-v •• *»»»""WU , , . , 161 Bame & Co. v. Chambers 173 Baine & Co. v. Cos- na*"*! 210 Benning (trustees) v. Brown & Co 224 Bladestone v. Thomas 379 Banks v. Elliott .... 396 Brehaut ▼. Le Messurier 414 Bowuug V. Harrison . . 467 Beck V. Brig Kelton (ownera of) Broom y. Preston . . . . 491 » » « « ir-a .-w -«»<^^PIir. -^..,^^. VI. TAHLr. OF Tiin CAsr:s hepohted. Page. C. Cdloman v. Executors of Kennedy Cocltsclty V. DickUy . . Cooncy V. Winter . . CiawfonJ V. Cunningham Crawford v. fluntera . . Cullen & Miller .. .. Cook's Jnsulvcncy Carter v. Uendell . . . . Case & Answer ., Carter v. Upliatn Church- wardens v. lien- »lell Codner v: liaine & Co. Chancey v. Brooking . . Croake v; Brown Carter v. Wood ley ilti & Carter v. Whiteway Carter v. Boyd Crawford allon v. Sininis 39 Dal ton v. Altwood .... 01 Dalton «J- Uyan's Insol- vency .^ C5 Doolingi^- Kelly's Insol- vency iiO A 127 Darnerill v, Dunsconib 01 Dawe v. Faddy 137 Deputy Shcriir v. I*ynn 107 Du-isan v. 'I'riniingham 177 Dunn v. Brooks .... 205 Dooliy V. Burke . . . . 2if» Dugj-au v, Barter . . 230 242 149 157 170 189 193 227 233 D. Pelany v. Cawley .... 243 Doyle's Servants (cane f>0 292 & 294 Dearing V. Harvey 406 Danson v. Cawley .... 433 Pawe v. Broom ij- others i38 E. Enilcrcolt's Intestacy . . 54 Evans V. Bulley 375 Eljsary v. Ilcrnaman . . 409 Evans v. Con-don . . . . 428 F. Freeman v. Kenny . . 3 & 4 Flahavan v. Gamble .. 41 Fitzgerald V. Lilly yg Fitzherbert V. Gill .. .. 133 Fitzgerald v. Dawe ..177 Fry V. Ueigles . . . . 405 roxs Insolvency .. 470 G, Green v. Williams, 10 & 27 Gulf, Newman v. . . . ^,, $t f t 1 -w,.^ PaIo. 30 Ul C5 .. 54 .. 375 . . 409 . . 428 3& 4 .. 41 .. yy . 133 . 177 . 405 . 470 4» 1 TAULE or THE CASES REPOnXED. P«f«. Godfrey's E«latc Of] J joss & others v. Kelly, ll>2 i^oBH & others (petition ^'O ^ 407 ▼ii: P«n. • 1 1 fl. ilm'e k others, M'Phcr- son (trustees) V. 18 & 20 Hnie v. Milledgc 40 Hiibcas Corpus . . .... 54 Henderson v. Brown JSc „.^® 90 Hill V. Shea 1(1 lliittonv. Kelly j.22 Haley & Johnston ... |43 Hoylcs V. Bland, 180,104,100 Heath v. Kean -^la Hunt V. Lq Messurier . . 222 Hunters v. Graham .... 240 Hunt V. Hunt & others, 203 Hayes v. Weave 290 Uunters v. Hernaman . . 321 Hunters v. Langdon (trustees oO 335 g.^Py ^- Gaden 330 Hilly ard, Jane (ort,er respecting). 368 Hogan V. Stabb & Co. 383 fliltditch's Will (order respecting^ 406 Hogsett V. Boyd 470 K. Kenny, Freeman v. Hitto & DiMo Kennedy's lilxecutors, Coiraan v. Keef V. Shnnnnn . . ' Kough's Insolvency . Kelson's Meinoriul . . . « • n 4 . a 00 79 4U I. Innott V. Pendcrgrast . . 395 J. Jennings v. Hunt .... 240 Littler Dooling, 36,51,00 L.ano a Insolvency .... oo Legg V. M'Carlhy . . 129 Little's Trustees v. Dul- lahunty .. .. ,31 Lynch V. Coughlan ..130 Lahey v. Tree ..147 LeGeytv. Miller .. 152 Lady Hamilton, Brig (case oO . . . . 309 Langley v. Darrell .... 379 Little V. Broom, 307 & 392 Leigh's Estate (order relating to) ., 405 Meehan v. Brine . . 6 & 8 JJeohan, Brine v. . . 1 & 31 M'Pherson (trustees v. Huie & others . . 18 & 20 Mead's Estate _. . 24 Morey, Square V. ..." 29 M'Lea V. Kennie .... 31 Malzard t. Huie ..... 47 Meany v. Pynn 50 -urpny r. Rough .... 93 tg«rs« VUl. TABLE Op TUE CASES REPOBTCD. Tagt Meagher v. llant & Co. 157 & 100 Paft. Unperson v. Quintan .... 257 Hex V. Lilly 428 M , _,, '"• ** '"" "t?x V. i,niy 420 ter r '^'''"""'' ,• ■ ■"", "'••''''y *• "wkett iia IWomss, Jane, property, 105 ' Morning Star. Schooner (case of) , 270 M'Grath'BWiil '.*.'.; 273 Margaret & Isabella, Schooner (case of) 540 Newman v. Goff 32 Newman v. Trcmlelfs Trustees 130 Newman r. Meaglier . . 207 Newman y. Church- wardens 350 Newport v. Purcell . . 427 P. Parkin v. fiennell .. 204 Square v. Morey .... 20 & 13f) Shaw V. Le Messurier 09 Stewart v. Hutchings 00& 75 Smitliers v. Williams .... 04 Stuart V. Walsh oa Simms v. Hoddern .... IIQ Stabb V. Stabb 200 Skinner v. Tarrahan .... 374 Stuck less's Estate (order respecting) 41Q T. Terrington, Hyan V 29 I rimmgham v. Brine . . 179 Trimingbam v. Gaskin 274 Parsons v. Sheppard . . 464 Thistle's Estate ('memo- Page V. Carter . . . . 474/ "«»* & order 367 R. Ryan ▼. Terrington to Rennie, M*JLea v 31 Roberts v. Simpson .... 76 Robertson & Mortimer's Insolvency 70 Regula Generalis .... 86 Ryan's Petition .... 113 Ryan v. Ryan i64 Rex ▼. Row 144 gex V. Kough 105 Ryan ▼. Thomas 203 Rourke ▼. Baine & Co. 237 Rowe V. Street 240 W, Williams, Green v. Jo * 27 wiiiiamR. Broom v. 14 * 10 Winter. Dea r. ... 28 Winter V. Winter ..5^**67 Walsh V. Carter 05 Winter's Insolvency .7 SQ Williams V. Williams . . 120 Waller (trustees oQ v. Broom 504 Winsor V. S(abb .^ , . 543 Y Young V. Attwood 262 I onge V. Blaikie 310 Ptf*. .... 257 .... 420 uJ3 CASES ARGUED AND DETERMINED IN THE SUPREME COURT, SAINT JOHNS, NEWFOUNDLAND, From the Year 1817, to the Year 1822. John h Robert Brine, appellanii, and Michael Mbeh an, respondent. nTih}% ^^ *° iPP®''^ from the judgment «n S Surrogate Court of St. John's, given Cf isVl'^^Jj"? ''It' t«'««overtheT«m ot ±53 16*. Qd. from the appellants, as in- therraS^?r "'^^ ^^' of^e^chang; which A»ec., 1813, drawn by fT. B. i?ou; per nro- curation of John BiU ^ Co., St.'johnT Newfoundland, 2d pec.,'i8l3.'ou/or^^ ^ Co London, m favour of the appellants. The cause was submitted to a spiSal juir ij^hogave a verdict for the plai&ff vS the court ordered to be recorded, ^d^ve meni tbe defendants annpnio^ 4^ uui o® B S8a Jn^, 1817. Xtw trial griBtMl bjr tba Supnns Ccttrt, ia • om* «h«r« judgatot had been girto in tb*8arrogaitCourt •«;«(Qatlb«indorMr oil it bill of ti«* obaD|«, whieb bad b««n retained bj tbaplaioliflfforlta nontha aftar it cama iato bit poa- aaaiioB. [?<»(.] CASES IN THE SUPJIKME COURT, ' 1617, preme Court, on the ground that the plaintiff J &R ««.,«, I'n 1"°' "®^** *^"® diligence in sending the J.&R.Br,nb bill Lome for payment, and that he had M.r« M. ^^'^^^ oUaches, in locking the bill up for Mich. Mbbhan. several months. iSimm for the appellants, and Xi7/v for the respondent. On this dav the cause havin" been brought before the Chief Justice by ap! peal, the parties admitted that the bill in ciuestion was drawn on the 2d Dec, !813 m favour of the appellants, who in the same month indorsed it and paid it to the respond- ent, who held it in his possession until the month of November, 1814, when he sent it home; but John »ill & Co, the drawees, having stopped payment, were declared bankrupts, on the 0th February, 1815. The bill, ot course, was protested, and John Hill 1 ^«- were declared insolvent in JSeufound- land, 25th May, 1815. Simms, for the appellants, then proceed- ed to state, tha^ the plea of custom set up by tiie respondent respecting bills of ex- change had by no means been made out on the trial m the Surrogate Court, and urged the necessity of the holder of a bill of ex- change using due diligence in presenting it for acceptance ; citing, among others, the following authonties in support of the prin- ciple for which he contended,— Bacon'* Ahrtdgment, 4ith vol pp. G^^^25; Viner's MndgmaU, 4th vol p. 225 ; Sdwin's Nisi .Priiif, vol Ut, pp, 203—294; 2d Henry ^laekstone,Q65 ; and Bayly onBills, o. 101. He also adverted to the l&th Geo, 3, c. 31, Mrhere bills of exchange are made a legal tender for payment of »«n;aji/*' «;<^M, which some persons had erroneoasly thought made them a legal tender in all cases. "^»%» foi" the respondent, contended that the evidence adduced ou the trial was t RT, c plaintiff iding; the : be had till up for Ijf for the e havings ;e by ap- e bill in c, 1813, the same respond- until the e sent it Irawees, declared 15. The '}lm Hill ufound- iroceed- i set up of ex- 3 out on ] urged I of ex* inting it 3rs, the le prin- Bacon's Viner's »'* Nisi Henry p. 101. \^ c. 31, a legal . which tmade tended ul Was IB17. o. Mich. Mbbhait. NEWFOUNDLAND. abundantly sufficient to support the verdict which had been given ; and that this case rested entirely upon what was well known J. & R. Brinb to be the custom of Newfoundland, respecting the reciprocal rights and liabilities of the parties to a bill of exchange. He also re- ferred to the following decisions in th6 Su- preme Court, in which that custom seemed to have lieen recognized, viz, : Hugh Rmoe %,^Z;,^^*'*P^^&Co., and William -Oevil Tftonuu v. PAi7tp Leigh Sf Co, This being a case of the greatest import- ance to the trade of this country, the Chief Justice reserved it forfurth consideration; and, on a subsequent day, ic/ersed the judg- ment of the Court below, with permission to the parties to haxe anew triaU rr Ti William Freeman, appellant, arid ^ HIS was an action brought in th« Surro- gate Court, and submitted to a common iury to recover the sum oif £72 2*, lOrf. partly on a disputed account, and partly for damages ^ustamed by the plaintiff in consequence of having been interrupted by the defendant in building upon a piece of ground which he bad taken from defendant. The jury re- turned a verdict against the defendant for f42, for which sum the Court below gave judgment in favour of the plaintiff, and de- fendant appealed. On this day. Lilly, for the appellant, and HtmiM, for the respondent, having been se- verally heard, the Chief Justice said : - ' In this case a lease has been produced ; Augutt 4f an agreameDt, the party obtaining; •uch leaie ia not •■topped from pro- ving that condi« tioiiB and corenanta bare been introdu* end into il diflFereot from (boae which were contained ia the orixinui agree- menl. [ADtep.3.j William Freeman, appellant, and Kobebt Kemnt, respondent. jS/«^'fh«^ri.-''?T8r «tood over«ince 31st iSmpnt '^^lu •''"**^® °°^ pronounced ipnl in i "" '^^^^^ *^""« --^s case ap. W^ ? ^'^^^f 0^° out of a misunderstand. in^der'Sr.'^ ^''''V' ^^'^^^ent for H^f ; i °^ ^ P*®*^® of ground for the resi- due of the term of a building lease. The facts appear to be as follow. * The appell! ant ,n Fedruanj, 1816. let thepiece offfi undera verbal agreement, to the respondent: tion that be was not to build upon it in such a manner as to obstruct the lights of jl/a„„V:« ^olly. A memorandum in writing to such effect was made in the presence of the par- ex3!r'ir '^ ^ ''^^"•' ''»«''-»°>«nt bLg executed. Jt appears that the appellant bound down by certain restrictLs in the erections to be placed on the premises, find- RT, tween the of Court, •r specific nt. Now her such ual agree- ts ; and if >g broken uction of • re-entry tied of as herefore, ore J de-> nt, t. nee 31st lounced tase ap- srstancl- nent for ihe resi* 5. The appe]l- Dfland, ondent, condi- in such \iaurice to such be par- It beiag >ellant,' 0., and in the 9, find* . . I .iWFOUNDLAND. | ing that the respondent was building a house iai7 contrary to his own restrictions as a tenant ^ '-,_' of Hutton 4r Co. required him to take down Wm. Frbsmah 80 much of his building as exceeded the t,. hf2.i^'° ''^*'!* ^/ ('he appellant) conceived Eobebt Kenn,. Jiimself restricted ; and upon being refused, caused It to be taken down himself. It does not appear that there was anything violent or forcible in these proceedings. But Kenn^ leeling himself aggrieved by the loss of time in completing his building, applied to the Surrogate Court for a compensation in da- mages for tlie injury he had sustained in the obstruction of his building. The cause was Heard before a jury, and a verdict for £42 given for the plaintiff below. Jn the course of argument it turned out that Kenny had. after the obstruction, but before action brought, applied to this Court to compel J'reeman to perform his above-mentioned agreement, and execute a lease agreeably to the intention of the parties; and that an or- der of court had been made to such effect, and a lease (produced at the hearing) exe- cuted between the parties. It was contend- ed by the appellant that this lease was the true agreement, as it originally stood, be- tween the parties. But this was denied by the respondent; and it appeared to me if ' the respondent had applied for a specific performance of an agreement, and upon ob- taining an order to such effect, had actually been party to an instrument in writing, in pursuance of such order, that such instru- ment must, primd facie, be held to be proof of the terms of such agreement; and, there- lore, J directed the case to stand over until 1 could consult the record of the proceed- ings which took place in this Court, in ano- ther branch of its jurisdiction. 1 find, how- ever, that the original memorandum^ as well L I I I' CASES IN THE SUPREME COURt; 1817. M the petition of the respondent in the case, Wh. FH.EMAN f^lf '?^"*"'" '"'^^ restrictions inthe build- "'"^^ ?&^./<> be erected by him. except that the jr«. \ }'^^^? ""^ ^««"*^^ ^olly were in nowise to *o..RxK..«.. be obstructed or injure^ and that the ordr ^n^^f ' ^' *^?.u^^? ^P"* "^^'^^y directed i compliance with the memorandum, although the ap-eement, as extended afterwards, con- tains two covenants, against using the build- ing as a cooper's shop, and also for a pas- sage from JSray's house to Hollv's. The Jease, thereiore, does not appear to be a correct statement of the originafunderstand- J^L?« r^2 ^^^ E^"^^"* *»"* *<> have been modified afterwards. Now, as it docs not appear that any complaint has been made, or certainly none proved upon the record of the trial, that the lights of Mr. HolluZye ™^/r"*'^* } ^" "°* ««• anythVg to warrant the re-entry and obstruction com- F mnf. « ^^ ^t *"««P<>ndent ; and therefore I must affirm the principle Of the action.-^ i He jury have assessed the damages ^t ^^42. Atyua 6th, A Special Jury find, that it has been the cuslona ia this country for parties lo retain bills of eichaoga for an indefinite period, without prejudice to the holder's right to hare recourse to tha indorsers and drawer, in the aveot Michael Mebhan, appellant, •"'^ and John & Robert Brine, respondent?. J HIS action had before been tried in the Surrogate Court, where a verdict was given and judgment entered, for the piaintiff,-! Ihat judgment was, however, brought by appeal before the Supreme Court, and wal there reversed, with permission to the plain- er their roo-acoeptaoce by tha drairee. [St. tote p. 8, rRT, i the case, the build- >t that the nowise to the order directed h , although irds, coa- the build- for a pas- /s. The * to be a derstand- ave been do68 not en made, record of oily ha*ve rthing t6 ion com- iierefore iction.— :• > ^t £42^ }wmuHt t, ents. i in the 8 given, ntiff,— ght by id was 3 plain- ote p. 8. NEWFOUNDLAND. tiff to bring another action; as the Chief Justice was of opinion, that the point upon which the whole case rested, viz., the exist- ence of a valid custom in this island, that the holder of a bill of exchange might retain the same m lus possession for several months alter opportunities of transmitring it to Eng- iand for acceptance had been afforded him. without being guilty oi laches, had not been investigated with sufficient attention in the tormer trial. The cause was now submitted to a special jury, and a great number of witnesses were examined on both sides — in a charge of considerable length, the Chief Justice stated the general law merchant re- specting bills of exchange, as far as it was connected with the question at issue between these parties; and told the jury that such law must apply to this colony, as it did to an others, unless an uniform usage and cus- tom to the contrary should be found to have prevailed. He theft particularly explained the requisites to a legal custom, and charged the jury to find the following facts: 1st whether such a custom as the plaintiff con- tended for, did or did not exist; and 2d whether, supposing it to exist, the circum- stances of the present case were such as to entitle the plaintiff to claim the benefit of it. Should their finding on both these heads of inquiry be in favour of the plaintiff, his tionour recommended them to give him a verdict, subject to the future decision of the Court as to his right of action. •j he jury, after a short retirement, return- ed a special verdict, in strict conformity to these directions; [See it entered at length post. I 1817. Mich. Mbbhan o. J. & R. Brinc ., mitmi49^,^^ • CASES IM THE SUPREME COURT, 1817. Amfftttt nth, Patrick Coleman The Executors of J. Kennedy ami Others. mn'MihiidTundl; ^f 9}^}^ action Datve, for the defendants, the euiiom of ibit "^mitted that he had no ground of defence Ulaad, toaitayof Whatever; but he praved the Court that iMofZ «« "" J"^?™«^nt m'ght be given with a stay of ex- laii 01 me ,Mr. ecution until the fall of the year. Per CMiiam.— The plaintiff has made out Ills case, and therefore he must have judg- ment. If any stay of execution be sought, under the custom of the island, until the season is over, the defendants must special- ly show that they are within the description of fishermen encouraged by national policy, and allowed to prosecute their business to the end of the season. August ll/A. Th« custom for parsons in this Is> land io retain billa of axchanije in their possession for an indefinite p«- riod, without trans* mitting them to England for ac- ceptance (as found by a special jury oolbe 6th instant), austained by the judgment of the Supreme Court.-. [See ante p. I. tad post.] Michael Meehan, appellant, and John & Robert Brine, respondents. Jl HIS cause was tried before a special jury on the 5th instant, when the jury re- turned the following special verdict. The J^7„.fi"^ -l*»at a l>>" of exchange drawn by M^i//ia»i ^. Row by procuration of John HillSf Co,, on JoJm Bill ^ Co, London, payable to John &- Robert Brine, at 60 days' wght, dated 2d Dec, 1813, for the sura of *48 llrf., was by the defendants indorsed, and paid over to the plaintiff, in the month of December, 1813, and that the said bHI was held by the plaintiff until the month of Oc toberor November, 1814, and then remitted !OURT, and Others. defendants. I of defence Court that stay of ax- is made out have judg- I be soughc, d, until the ust special- description Dual policy, business to Jllant, ondents. iH ,'t'jfri'Uf ' 3 a special the jury re- dict. The B drawn by >n Qi John >. Londoiiy at 60 days* the sum of s indorsed, the month aid bill was nth of Oc- sn remitted KEWP0UNDLAN&4 ^ J>y him for payment ; and on presentation 1017. i^ John init 6f' Co., London, on or about ^^i^P-v-^^;^, the month of I'^ebruary, 1815, was refused Mich. Mbbhah acceptance, duly protested and returned to v, t le Paintiff, who, without any delay after J. * R. Bwni. tlie return of the said bdl under protest, with charges thereon to the amount of £5 IS*. 7 1817. Mich. Mbbhan V. J.&R. Brinb. Auffuti 12tk. B, the debtor of ■A.quittlheiiland; >od A,und«riDtp« prnbeniion thai the y B, who subae* quenlly returns to Kewfoundlaod ; and, on the appli. oation of A, gives hita a promissory note for the sum A had paid, as the premium or the In- surance so effected by him — Held that there was a sufficient conside- ration to sualain this note. CASES IN THE SUPREME COURt, tW hoHpr?nr . T^ '/y injustice, towards hm undor ?L'-"' «^^^^'r«^. ^ho took S H?n» *. ^ '™P''^*^ understanding and laith. that the persons whose names were to them. 1 must, therefore, though, I own thfpiSr"' ^"^ ^■"'^™^»' - ^---^ John Green, appellant, Thomas Willums"& Co, respondents. Tiif^\^ a^^^ ^^^ »''g"ed vesterdav br it% for the appellant.%nd Aimm for' the Ee'd t' nn'^^ '''' Chief Justice^Jho aajerted to all the material points of it in the judgment which he now delivered l^'" august, 1814, the respondents sold to the ^L^J "Jv ^ ^"""'^y '^''fi^*^' 'o be paid fort master that he was not to leave the wharf till the money was paid ; and was assured by night, however, the master privately cot un- the followrag morning, Mr. miliams it is m evidence, was in conversation wuh the appellant upon the subject of the fish" Ind a'^Sl'^f K^':f^*.\?'^«*'^««»™ o^2?0^ one /ay/or, for the balance. To this mode 0UR1», uld not no\^ :ree of hard-' ice, towards e, who took tanding and lames were main liable ugh, I own, in favour of It, )ondcnts. terday, by ms for the istice, who nts of it in ered : — i month of old to the paid for in vessel left ngly deli- a balance ipondent, ! payment Led to the he wharf ssured by that very y got un- . fax. On ims, it is with the 9h, wh«n of £100 itly with is mode \ NEWFOUNDLAND. 11 1817. it John Urbbn of adjustment Mr, Williams objected ; but said, if the appellant could get any respon^ sidle person to join him in a security, paya- ble at the fall of the year, he would take v. such security. The parties then separated, Thos. Williams and Green and his friend Taylor were never * ^°' seen nor beard of again by Williams, until more than a year after, when Green return^ ed to 8t John's. Now let us pause, and look at the present stage of the transaction. A stranger comes and purchases a valuable cargo of fish, and engages to pay for it before it is removed from the port. He pays part — leaves a con- siderable b^alance^and in the night, contra- ry to the express understanding and pro-> roise of the master, the fish is carried away to a distant country. The porcbasep comes the next morning and proposes a new and disadvantageous mode of part payment, and without even finding a responsible security, leaves the port himself; so that the vendor has lost botb his ^oods and his debtor, in breach of Ar/)re«« contract, and I do not think 1 ga too far in saying, othpnest and fair dealing, - The plaintiff, finding himself deceived, and believing there was an intention to defraud him of his money, wrote immediately to Halifax, to secure the payment there if pos-. sible ; and in the mean time effected an in- surance in this island, against the loss ta which he found himself exposed. The pre-, mium which he paid was the sum of £61 3*. lOd. It is said that this insurance grew out of a jest. It might be so; but merchants seldom throw away such large sums in mere jest. The insurance was formally entered into, and the premium regularly paid, it appears that the balance of the amount of fish was aft^**WaKrla nni#1 *n <'1^ ..-...^^ J A-> 18 1817. CASES IJf THE SUPREME COURT, John Qriin o. fi« Tk. '^ ^ r '"'<"«» to re mburse liim * t'* fo« to wWchr'h"r K°' '"'"""« "«"'«" '"'« M tfte lubject of the preient action. Find, ing. however, that he had been t,^o hnit heafterwnhla Write, to the plainUff S TOW. Uie note, and ad»erti«.Vo Siit'eS^^, .^hI'"'!* °" .'^^ »"'<'■'. "Pon which t ^dgment waa had for the plaintiff below and «, .ppeal intituled to thl. Court ' , It iaol^ected by the appellant fint th.< the iiunraaoe made by the reZndlt wm^ ?. caiY^ nZ.T' "^ v-^y »» *' '^0 T?~Ir«i, P* .'° ':*P»y «'•« premium, nnS.^° i""* ^"'PO"*. 1 »m not aware of an v positive lav agaUBt an insumnc. of tUaST scnption, and it certainly doe. n^Su within the principle of wV PoUofe.1 ^t ofX"i'"°P*'*y '• ""k*! aid h^^ ^J^f^r*- ..^' ""y ™'e. «!>» part of tha ?uT .^.^i^"'""' »°"^ the wont too dm,b«; M, to allow me to turn the reabondent ove» the pren.i"nm",5''L'rnt' maK tt^"* ' Mwer ?-™' '" *^' "«*«"« of an action kn«n?--. V''*™^*' snatained by the »o- SSS"' t^ ""»" »f «•« appillant mt p.rtoHningh» contract i and th'ilnofeS im ■ 'tf ' URT, ubsequent- hen, being Dburse liim I. by being igainst the (1» he (the lote which n. Find' too hasty, itifff (lisa* hoi effect, which a iff belowi urt, on the le* h thenote first, thai etit wata diy, thai t, canbot ire of any ' thitt d^ not fall ilioies,*^ I the 6b- re an in>* i> but to i of the > doubto ^t over rbm the jeefeton* • er hkck the re* of the i actioii the te- EUit nut ie itdelf I MBWrOUNDLANO. is in the nature of a confession by the de- fendant of such damage being sustained by hio failure of performance. Suppose an action had been brought by the respondents against ihe appellant imme- diately on his arrival here, and before he ^ive his note, for damages sustained by reason of his breach of contract. The re- spondents might have shown the expense they had sustained^ by being put to the ne- cessity of insuring ; and the jury might have assessed that sua* ftaaong the damages they might have given. Here, then, is no new right of action given by the note, but an origmal demand for damages, admitted in priHczple, by the fact of the appellant giving Jils note, and liquidated iu i^e amount, by the ium Agreed to be paid thereby. How can It be said, then, that there is no considera- tion 1 At all event*, here was a mtuai obli- gation, bnd a moral obligation will support an expl-ew promise, as has bieen already de- ^' . ; T°^ judgnjent of the court b^low must ba a^oi^d, • Btttf»|r'» iViW Prtut, p, l4%-2 fiMt^ nep. 600. ■oo^t«f.rnd to M M autbority lor tW p«*iiio« Wi« gjiw • MflitlTOt oimiidvtration tp topport a promiM, Mr. AeijeyJi bM iBicrtMl flM lollowiof wtefMl aote ia km Nisi '• >^n. btfor. ««ud«d to* on ihw ana tb»roUowiii« «••« : ll"!! •* V^ ^'!^ "' ''""^^ B"*"- N^ P' 147» ba, MnMiaiMW ..i ^. .. ... 13 ini7. John Cikeen o. Tiiofl. Williams 'l .t 14 Augutt 20/*, ^Appellant re« quired lu producs « precedcal of ihe aumission, upon the bearini of an appeal, of w idcnco Qoi tendered at tlio trial of iho cause In the Court belong [See post.J . CAlf# IK THE SUPREME COURT, John Broom, appellant, _ and Jo N Williams, respondent. onde^nce .o show .ha. .h^e r'^X^^J^-^aUe vl^vl^*^^^ — ^' '^ contrary to the rules of den^ci'^'T^'? '^Jr*'^^' *« admit new 'e^f ceedbrri hif^"^ the records of former pro, ceedings before inferior courts. ^' propoiilion. yet lird SStE-A ^"•""^ i"l*** *••■• "pear, that lb. oaae of Watmm^ T^Z ' x}^^^* " ported on ttrict legal princhk^ I'J "'^^ ''• "P' ••docliioe ofmoralibliSn'of-ri "''"'"« '» »''• «• found in Ih. . i, cai; Tbil ""' *^ "•*'• «" •>• "bylaw to providi faM!; pLr oH T "" h ^' **""•"* •' benefit from iha aot «f #[ i • * ' «!""•''' <»«"»ed a " am., .ii fo'r work and ?» J '^'^^ /" «•""•' aions. But reason, confirmed by frequent Aiperifuce, will demonalrate thai, in ihe present condilion of human nalure. such an attempt would not only fail in ihe exeou. tion. but also be productive, in tome inslanres, of very injurious consequencei : ami hence, aa Lord A'eiryon justly obMrved. legal obli; 4iions must, from ihfir nature, ba necessarily much more circum*rribed than moral duties. Thue. the performance of a promise is orrtai»|y a very sacred part of moral duly ; for he only can deserve Iha title of a good man, •' who, ihoush he promita to his loss, atill keeps his promise true." Yet were promiars deemed bin.linii in law, without regard to the ctmideration upm'^^i>?t IG 1017. CASES IN THE SUPBEME COURT, JoHM Broom V. ill bus VEstrruM.-' ♦rasEn-.f*'"'?''^"' solrmnn «nJ in the same nianno, V"^""' « cotisideraUon ; W o« account of .h«*^'',^T'''"P''«''^"^ The common "aw of Pr'li"^ "^ "'* w*/r««„«/ |« correspond pJeTisSv S.l^".! "^P'"^' '"^'•^fora C-rl., ,he Second, ,0 .Ty t ^ht" ' " *'" '*'«" ^^ •It»ins» fraud and ner u,v \ '**T "P «°"*''«' Carrier «bich would preK;j"Jv; El '^^^^^^^^ ■)"' ■'^'^^"^"^^ should. In cerrain 8pecifie7cr« k •*"'? '^'^"■*'^»''^*«'. to entitle Ihem to anrS ^H'. " ?t''';I *^ '^'^W •ng .o the oblee. 8n?l^lnten ion n 'h"'* "•" ^"""«' '<»»k- thertpassediaveml cor''^^^ ''i "!! */'""« "h*"'* wad *a». in the cases H.erei« T ^ ^'"t"^ <^^' "»*» •''• Act necessary w„Si';!;""T'»''*'*' "»«*^'e'l «^.-«n« t'on Is required to sustaiJ .n '^ '^"1 '*''''''' « ««nsidera- J7 and V^colrit'o" ZZ'nf'l'T '^ *"' ^' "" J fluenced l|.e legislature fo enact tl"e 20 C- "f?" "o '"•" VIZ., a rf«/rc to cApc;l frauihn»^ • • ^•'^' "• «• 3.— furnished wl,h a Xhv whtrS""'*' ''"J* ''««''• •»« «. '•a^a "MoRAtorUGAtloN" c^h'""^ ?"'*""•"« '•«'^ vimiem^ideration for a nroLj •»\f«cl'0ned a su/K. depend upon (be power hn« ' '* *"!' ""'•» *>bylaoffy prpo.es fjr which S considerSr.'? °' '"r*"'"* "««•• •« deemed lo law t^r l/d f.Ln:I !"*" ^^ exoreasinn <• , .,? '■•"•Pensobly neoeMnnr. nm..* «ti,eiy co2 3 ,:„y;'„j*ft*"o«. Wn .7o„7 ; iJou|/i,e cops.a„tfy borne ?„^i;i Z^ T'"'?' »"« «"• o' .t must prodace^M.rple, n*Ti» ' "T""" *'»• »•• n.«de. Iac|„d„, .t^J^^ P^-JJ^J Which can lawfully fe. the evi* oducG. >n underta- SOLBMNI. uideration ) a vofuntartf instrument, Ihsreforo, »» on Ibis e M'gii of her barrier ■Rraeiofnrs fel^ verbal, Iv writing, ^«s, look, "hich wad »t «lie Act I writing nlntitufted bft ftbun« onsidera- the civil lie which . C. 3,— . 'e we ar« ine hour a tuffi* ^tiousljr >g (hoa« 'f other, ^ The >y tord Bompa« hat tbig tbeusA . ilefebfa My r>« t'oM for \\ obH. fi (rM wrtcid NEWFOUNDLAND, 19 James Bristowe and John BRistotee, IBif. appellants, and '^ i^ffi „■ ruaiy Trustees of Butler & ToDRiooE's Estate, ^^^^^ jort respondents. ^^^ H. HIS Was an action to recoVef the sum of £723 e*. M. fdr principal and interest, [Sto post* p. 20j. due upon^a bottomree bond, on tha brig- spirit, of a Io0(r vtriQgpf cases ia tbfsbranoh. of English jurisprudence. We may safely couclude, therefore, tbal; Lord inans/2«/({ alluded to 4 moral obligation of a differ^ ekt chatdcter; and a nitle attention to the rule wbi6h hasj alreiady be«n suggested as eipaliU of meae^ring the auf^ nciency of all sorts or cotwidefatioBs will, 1 oonceivt^ enable us to ascertain, with great exactness and pieoision, tile limitations and restrictions with which bis Lordship's ex|f>ression must be received atid uirde^ttofbd. ]Sfow ther« are, we should remember, a multitude of transactions which, though they may not be obligatory in law, aire, notwithstanding, binding upon the conscience of an honest man } and at the asnie lime are: as capable of iumiskiag, from the notoriety ofthefactt which aeeomptmy them, that primd facie, or presumptive, e? idence of the truth of a promise-made in relation to them— which it is the main purpose of a consideration to supply— as if they were clothed with a completely legal character. . For example, a loan of money fairly advanced duting nfiioority, and a, debt harred by the statute of limitations, thobgh they canW nol^ he recprered at l4w, atill p|(M» thedebtor URder.ai clear moral obl^atioi^ to pay them; and, moreover, th» circumstances connected with them furnish that presump- tive evidence in siipport of an after-promise by him to piy tbein, whieh bkust always^ i* wAtttiiig* in the «aik»of a naked promise to give n sdV of money without any conw sidfralipi»,»iknd thus the danger of frauds and per^^ries, which the obnsicferation is exclusively intended to obeak, is htfrdty gi^tktet in tti^sei' casek ihMn if tbe promise had bisen given to saitiisfy a suWibtinIg legal deitaand. In these, therefore, there is,»,nor>l.obligatiQB^. poasessingf^ in »'^ great degree^ if not enUnly, |be cfssential propertied of ,» legal obligation, as far. as it respects the consideration of a contract : and aceordlngry sucni moYal dftfigatioh may, wilbout thy deptkrtors from priaoipl*^ be peMHiied t& support « prcnaise^ NinaaioBs othai instiicesof lAOfili obl|gationq» faljinf under tbe mlet 1, have her^ endeavoured to expUm, might easil^ be prodvopd ; but t am enwiiling, ttf s^efl k' n6te'Whf^^* effects if ^nnT t^""" ""^'^^ h^d been received by J?o«cAcr the agent for collecting those- effects ; and w«re handed over by Bouch^ mt^'Z'^'fl^^^^ by theplZ tended hv. I ''!^/^ ^^^^^^^' «« »« con- fW !k ^ ^^^ defendants. 1 must observe that the most favourable point of view in ^hich I can regard i^ is asa W; for if it be otherwise, it is a fraudulpn* r«^'„«^;S"3 .. T, Ige, The ourt, St. fi; when fendants le plain- pellants, jre seve- n several lot claim bis chief 3 having out any to stand art-day. ion's ts. nces of the Su- Jgment Justice e bills, ion is rects of ceived those* mcher, a con- plain- I con- bserve ew in if "be NEWFOUNDLAND. an insolvent estate, to give ah undue pre- jference, and that preference to a trustee. But I shall dispose of the case upon the on- ly evidence which has been brought before me. Jt is the evidence of Mr. Boucher him- sfelf, who, by a memorandum made at the time, and which is admitted to be in his hand, states that he " lent the bills to the defendant out of M'Phersotis estate." The transaction •Was entirely between Souchet and Hiiie (one of the defendants). The clerk knows no^ ihiiig of the nature of the transfer of th6 mils, except that he received them from Huicy and was directed by Huie to place them to Boucher's credit. Now Boucher's memorandum, which was admitted by the surrogate, says they were **fo»«" from ilf*P*crw»'« estate. How shall 1, therefore^ without any evidence, except Bmcher% say they were not Imt ? Here was : also ,an ca^ press promisif; but i do not think itnecessa- ry to determine upon that ground. . . 1 reverse the judgment below. Against which judgment Mr; jR«rf gav* notice of an appeal to his Msgesty in Coun^ cil, but afterwards wthdrew the appeal. 10 «817. The Trustees of P. M'Pherson's Eitate V. Huib,Kbbd&Co« ■ John Broom John Williams, CASES IN THE SUP«BME COURT, and that it wasnot» consequently, necessary for him at present to decide, whether new evidence ought in any case to be received on the hearing of an appeal. His Honour then proceeded to observe, tbatiit AVas clear from 4he terms of the me- ittoratMjUm, that if the lessee intended to assign his iotereat, the lessor was to have a nght of taking bacjc the premises. But^ non emsm, heiemse he did not disapprove of the assign^e^ OF in jother words, did not ^i»h 4o -avail iliowelf of fiiuch preference, that he accepted of such assignee as hi» tenant, vad Jherebjrreleased his lessee from bis fiml lia.- The letters are explained by the laait clause in^thc memorandum, to relate^erely |» the les^drf & • r ewrved preference* in c^e of assigsnment ; and > a» there wias no ! laot which, on thfi part of the respoadeiit, or his attorney, Aihoiinted ia an acceptance of the assignee as; Jiis, tenant, the appellant is bound for the rent in arrears ; and therefore the judgment below mUst be Confirmed. Au^t 23d James Bristowe and John BRisTowfi, appellants, and Trustees of Butler & Todridge's Estate, .LLslrr^pondents. In this case tJieC^^JiMite^ delivered the toUowing judgment :— The Coort held, Ist, that a part' ovner«annot hy- pothecate tbevfasel beyond the extenVof his own bterest in her with. «.tao authority fiom th« other part-owner to do .oI-2?. thJt.hi ebn,Ie l^ a botton.reeboad.8Dolbo«ddtoprov««bat the money wai appHed tS linur* ilhTh'i T fr^?" *^^ '^^ «•'•* of .thrcbn«?r'« Papor^uTJe vewl! -4lh That theobligee's sMurity did not depend upon the performance orthe KSJc?.'C;' ^' purfosea^f which xL mon^ wa. rS™ sTh. Tha • bottomree bond is not such a transfer of property in a vessel as to reauira • comphaiioe wilb the piovialon, of the RegWy Aote. ^ i r, ecessary ;her new received observe, the roe- ad ed to have a But, noH >rove of 4h|it be ant, and i^erely ia c^p DO! act I, Of hi3 of ibe Uant h jerefore [•OWE, Estate, Ted the i«r, with^ •bligae in > the pur« er to ^e )e vefiiif I. oe o/,tlia Ih. That require \ NEWFOUNRtAND, This was an action brought before the Surrogate Court, for the reco ery of the va- 'lue of a vessel called the Faith, which had been seized by the defendants, as trustees of Xhe insolvent effects o( Butler 4- Todn^ge, end claimed by the plaintiffs in virtue of a bond of bottomree, conditioned for the pay- ment of the amount of Certain outfits and nec'ssaries furnished by tb^ plaintiffs upon ih6 securHy of thfs said veaael, All the fftcts aro admitted in argumeiit ; tod five 4)»i99tion9 are miside for tbe detefminaiioja of Ibis Coort* V J pt.^TJiat the obligor* Btnrjf Butler i be- Wg ofi\Y part-^mner of the vessBl, bad not ^e riglit to hypotbecftte Xhtivhfde, rym iu •. Sd-i-fTbat it ; does not i appear; that the JBdney ftlleged .to haveibeen advanced, wan ^ctuftUy expended' for Impairs and necessa- ries of tbovefsel. if i >); ^.— That the appellants can dnly recover to the extent of the money for which the v«S9el ^as sold. , 4tb^r«^That the «bUgieee had only a stpeoific isecurity upon the wBut qfnpflrtkular^pi/tige, which voyage toot beipg perforrmed, tbfey nmst resort to the^r personal Mcurity against the obligor, optheowneraof the vessel; and 5tb»f^That where an assignment, or inte- rest in the nature of an assignment,: of any property in a British port is set up, there must be a compliance with the provisions of the Register Act. '^y? .-^ Ist^Upon the first point It does not •ppc^rthat Jffewy Btt^r, who executed the bottomree bopd, was authorized to do so for his partner; and the general question arises bow fkr one partner, being then at a distant point of the empire, has a right to hypotlre- cate the share of anotlier partner. 1 cannot find that this point ha« ever been expressiv «1 J8I7. Jamks Biid John JiRISTOWB p. •FheTriutcea^f BuTLSR "'' *^** ^^ cannot mort- . ^ It, which, m its consequences, may itmount to a sale, ' Indeed, it is said in Molloy, and other genera* wnters upon the subjeS'of bottom- ree, that ;»ar/.0M;»<.r, may pledge a shin ta thLtf "^Z -^^ H"'}' respective interest ^C hvnih *' /%?^*«i"«d» that the master mar hypothecate the whole of said ship in ras'e of necessity. The reason of this d'JstinctTon may not appear very evident. The power of the master grew out of various exigencies; iesl tn°r^ ''^ ''"^^ ^^y'*^^^' ^her* kc! wL? . • P^^ners was. impossible, and without which power of pled^ng the shin no confidence co«ld have Wn mised, an'd no assistance obtained ; and usage has coi2 firmed a power which ^as at first assumed, and probably oMestionable. But instanc"* of part-owners being abroad, and necessita^ Iht ^rn?.,"?"'^ ''P'*"' o»- pledge of, me 8liip,areofunfrequentoccHiT^nce, and ' were, as there is nothin- ""''*"'' ^'*""- m the evidence to prove the contrary, a feS and regular loan of the money for ti^e nur- pose expressed in the bond, (here is no nel cessity for the lenders to look to the aoDlt cauon of the money ; but they are entftC to their actiou against the owners, and to their hen (so far as it has been expressly and legal y given them) on the ship, without provtng that the monej, wa. proper y a^ The suggestions drawn from the account SX^Ir^^ '^' ^»^P^"«"*«' against S"y ButUr, are too remote to weigh against the positive evidence of the bottomree.Tmiih? be an account for other particulars than ?he fa?t ' "^'^ ^' P'"'"^' if necessary/to be ^ 3dly.— The appellants in this action, can only prevail to the extent of his obligo?" share of the vessel, or the proceeds thereof! ♦j,o/h^* n^"""*^. conceive a doubt but ^a^l t.T"^?*' ^"? ^ »'^" "P«»» the brig tf e f^i nf *K '"''""* of^«^/er'/interest. a! the time of the seizure by the assignees. The vessel was mortgaged by the insolvent Mith a condition that the mortgage was to bi vo 5 on payment of the money advanced with- m so many days after the return of the brt from her destined voyage. / ^ ateh Vur^ J^'^'l?'^' ^°n»»nenced immedi.T of th;^Lif^*'*''^^"'?^'^ *'^^ ptrfonnance of the condition, and absolute after the term va purionnauce bad expired. A bottomre^ (\ u CASES IN THE SUPREME COURT, 1517.' is ft lien-^and (he mon^y in this case was; ^ ■- « "'■'" ' lent on the Anil and body of the brig, ^c, JoHM and Jambs which constitutes a bottomree. BaisTowft 5thly.— A bottomree bond is not such a Tbo Executors of t»*anfer of property in a vessel as to require DuTLBR & Too- any compli^ioe with the proviS'ions of the registry acts. It gives the creditors a righf> of action to be carried inti> effect by a court of jujftice, but not a right of properly ia the »hip itsdf. Upon tho whole, I reverse the judgment of tb« l!*liirrogate Court, and decree for the appellants to the extent of the proceeds^of BulWs interfert in tl>e vessel* b i^i KipGE's J^late« Avgmt 23i. Order to Execu* Ion to render an account of Iheir administration of their testator's es- tate lo the Probate Court by a giveo day. i\ l-.rTKtrrrrr-Y-rrr'. — -r -: — ^- In thfettiatterbf GAfiREtt* Meade's Estate. t#N this day a memorial was presented to the Court, by James Murphy, for himself and his partner^ Mafthew Gleesoni ststiing that they had lately received certain powers from Ireland,, constituting them the attomie»of Messrs, Wyse (^ Quans, of "Waterford, Ire- land, who, it appears by the said statement, were at the faill ofthe year, 1816, considerable creditors of the late Garrett Meade, de- ceased ; and that tltey have this fear, sent a considerable qnaiitity of provisions, coun signed by them on adjoint account^ with the said Oareit Meade, vrho died m. the spring of the present year, leaving by bis last will ai»d testaaient, James Fdey and Moberi DaoKng his executors; and which propeifty,: consigned on. a joint accoant as aforessud;' has, at the request of the said executorsybeen- pai into; the bands of Mr. Jameu Clift, coih- miasion broker, who' has grveh security in: double the anoount thereof,,for. a> db per-> fomnanrtAO^ hia diiiv in IkIia «1]curtAanl. Af.a.^C'^. T< rRT, I case wasf hrig, Sfc.y lot such a ;o require >ns of the re a right* ly a cdtirt Hy m thei jadgtnent; ee for the oceedsof s Estate?. • lented to nselfand ling that rers from orni^ffof )rd, Ire- atement, siderable^ !; ftgainst Saxmis BiqKLEY;. 010 i)^ « 9 »'^?^terthe^up^ qifij!;l(]^i^ifl^^^ #?» *«d mferesi; of mppey Ient\to l^e^al4 Augmt 25/A. The Court took time to consider what course ought to be adopted to- wards an absent defendant, who has property under the attachment ol Uie High Sheri£ t ' 1^' €oCKB3LEY V. BiCKLEr. CASES IN THE SUPREME COFJRT, owner w^I !r L ^ f'efendant is one-half mSiSS^T' ^''^"^ "" representative theS!/-/,;;. f««^^a? not gone into; as over untfl r 7''?i'^.^''''^ ^' «h<'"'d stand ajieciing^ the attachment of nronertv hp fongingtopersonsnotresidentinSland: - • i he J rustees of Peter M -Ph ebsos ; Estate, respondents. ^.^ a.«. ;„ ^™™^);« Supreme Court, to His Majesty -Appetl to the Kiog in Coancil allowad in a caie M'here the judg- ment was for £i00 (exclusive of costs), though the 49 Geo. III. c. 27, *• 6, only gives sq appeal from judg- menti crceediny ^Bt amount. Mi, "i'V/ ..JfT W:u.. M. HIS caiise wad orlginaltv hrotiirht in ♦!, Surrogate Court on the 7th Wov^rs V?^ recover the sura o{£wn^t.'A '816, ta been lent by aVJJJ'^'oZZ.V^ ^.7nt OD the 16th dav ^f *h • i ^"^' ^°"rt, for the dae proswutiontf ih': T"!"'' by them. ''™^*<'""°'» «• the appeal given Js Tp'M^il^^ proceedings, the tms- ut being at ler CHarleSy is one-half ligh Sheriff Jresentative )nc into ; as loold stand r directions operty be- * /lis island. s, and KRSON s is Majesrjr gftt in the , 1816, to 1 to have the agent I'Pherson lat Court, thofJVo- fendants. •y appeal udgment the 20th I to the 9n of the lediately security !al given he trus- teed the V on the KfiWFOUNDLANO. 27 Is ground that the law regulating app.«„ „au not been complied with, inasmuch as the judgment of the Court was for only £100 the sum sued for ; and that the Act of the TJi P^?' ,V ' ''\ ^^'/ *' e^P'-essJy states, that It shall be lawful to appeal from the judgment m decree in the Supreme Court lor any sura exceeding £\Q0. ^ In reply, it wAs urged that the appeal had been regularly made, and security given for the due prosecution thereof. His honour the Chief Justice sizi^.iii^ whenever there was a doubt as to the inten- tion of the legislature, the Court would al- ways fee! anxious to leaii to the side of the party appealing, so as to enable him to have the benefit of a Wgher tri»)ui»ak; mr^, ^here- lore, although the^ ^ct says aftoi^ jClOO, and the bond taken was only je200, the Court would not issue a writ of execution, but air low the appellants to go on with their ap- peal. But it was ordered by the Oaurt that in future, the costs of the suit should be add- ed to the aniount of the judgment; and. when an appeal is made therefrom. ,tM the bond for the^ proseqution of the appeal, shall be taken for double ^he ^Rojint of judgment and costs. . ^ j w© m «». iMi In the cause between John Grees and Thomas Williams. Oi JN this day. Messrs. Jams Macbraire (by his attorney. Peter Henderson), and ^eorge Lilly, the sureties oUohn Green, in the appeal which he entered from the judg- !!lf ?K "i A^^ Surrogate Court. St. John's, on the ist July 1816. appeared in the Court agreeably to the order of the 2eth instant 1817, H(7ik,Rbbo&Co and The Tru«teeg 0/ P. M'pHERSON'i £state. 1; -A- i it i i 11 4ugu$t2m. The Suretiej of an absent prinei> pal in an appeal- bond, ordered to pay the amount of the judgment, in« teresi, lod costa. mmm I CASES IN THE SUPREME COURT, ^ Inth,ca«.eb«, d?" 3^"^*^ ^'^ " «nd Without leavin- ail V f^ll -T^ ^^^^^^ire and Georse Lilly rin forthwith pay to the said plaitti^ in'«h« Submiasion of a suit to arbitration, at the instance of the parliea, under » riil© o{ Court, On this dAy, iht^^A^^^^V ' ' betw!«ii thtm * ^"u ?® inattett in ditowrtJ And, at the instance of the 8ai«i «dt.#;K. St was ordered that the awai^ «;i J ?* any two of thb arbit^to^JaSd K^ into Court, on or before the 6th dav of l^h tember next, should be made a i?ie nffl?" eaeh nf.t3 ?^ S«)»g-e Wis^r, their and !!f^^™??<»«^*»': OURT, John Gheii leaving any f» the SheHjjr 5 judgment 'at they, the je Lilly^ do Uiffs in the [I of £Q\ 6s, '5 per cent, he costs pi" s, a led phrli^ ithdtthfey in^dltipwte iid'f6pth»l^ ran,Jiich' aire, Wfej«e, liiiated air- d pdHi^s^ si^dbv deJirered yof Sfep- ule of the and con- the said their and iistrator^, NEWFOUNDLAND. John Square & Co. against Matthet*^ MOREY, ^S this case involved property to a vnrv Irtrge amount, (£3.710 HI,. 0./.). and as all he Is and, the CAiefJust ice this day orderor^ that this cause do lie over, until 1st Muy next, m order to give time to the defendants fl^^^r'"' '" P^*"^^"' o"" by attorney, to de, fend the action. That in the nieamime aa inventory be made of all the goods, proper, ty, effects and credits of the defendants, and hesnmebe returned into court; and that the attachment be continued bn thdsaid if^^^'Ji?J'^'^^* ^^'^^*^' «•"' credits; and that «.hl«?.«; ^® ^?°'*^; **■* effects, be of a perish- able nature, that the same be sold, and the SC' '"'"'' ^' ''°""' '' ^^^^ rnifeii^u ^t^^ 1i^ *° *^« defendants, be collected by Mr. Matthew Morcv, jun., and security g,ven that the sums re/eived .hull rnn^f ^?i*?'"^'.*^ ^^'^^ ^^^ d«^^^*^ of tbe 9u>pmt m this sqit, Avguit 30M. Ca«e postpbned on accoant of the absence of the de- feadants until the ■pring, with a pro- viBJonal ordar tor the intermediate custody and dis- posal of the pro. perty belonging to the defendants iq tbU Gounlry. Mich, UyAii against J. Terrington, JElsq. kTebe? in ^"^^T^-^'u ^^ ordnance sf^i^e- adlt^\.Af ^'^^' '"^ *?'' ^^^'«' character, i^soTfhl^''' \q"^»t'ty of ^ood, for ihe A nnmhi ^,T'\'^^''^ *« ^vhich he belotigs. A number of tenders were, in consequence delivered at his office; and among IhertT an o^er by the plaintiff to furnish isl SrTs, 'a? bfvL Tf '7^' '"'i'".^"^' and accep ed tageous to Government. A deliv^rv of 1 iV both' "If'^'^^^^omact, Mas iSted dl . - - y — „,^. j[j^t„iiin„ wuw s>ougnt to September in. ApublioofBcer, acting as such for the benefit of the publio. is not indi. vidually liable un- der any engage- ment he may bare contracted in his official obaraoter. [Upon this point. wae.l.T.R. 172; 1. East, 136. 579. 6. East, 148 ; 2. Taunt, 874; 16. Eaal, 384.J :'»*5w*^' wmms*^i«mm. r: i Michael Ryan V, John Terrinq. TON, Uaq, - '•■> >,U 10 77tl ■ • ■ • <<(in vJjoljiuo ^^ CASES IN THE SUPREME COURT, .1617. recover by this action, first, the balance of i24, which he contended was still cue to him, on the quantity of wood he had actual- L^.t9^'' ^"^ secondly, the sum of S i\ "**'°^ ^^^ ^'*'"** °*' thirty-lhree cords which he insisted the defendant was bound to receive from him, over and above the quan- tify he had delivered, and which the defend- ant, as he alleged, had wrongfully refused to accept. The answer of the defendant to the action was, thathe had paid for all the wood he had actually received, and that he was not bojund to receive more than he bad done. 1 he cause was submitted to a jury; and a number of witnesses were examined, the substance of whose testimony is contained m the foregoing statement of facts ; but a considerable difficulty arose in determining m what light the jury ought to view a re- ceipt produced by the defendant, corres, ponding m amount with the sum claimed by the plaintiff, as the balance due to him on the wood actually sold and delivered to the defendant, but differing in date, and some other circumstances, from the transactioa which formed the subject of the present dis- pute. _ In his charge, the Chief Justice to]d the jury, that a public officer, acting osten- sibly m his official character, was not indivi- dually liable upon any engagement he may have entered into for the benefit of the pub- lic service; and that, therefore, that part of the present action which sought to charge • the defendant with a breach of contract iq not taking the wood to the full extent of the .' plamtiflTs tender, certainly could not be ;i.r« , supported; but that if the Jury believed, f ic;t; *'*on» the evidence, that the defendant had received from the Commissary the full value of the wood delivered, and had not •■' -iIm:-! ■■]. . ■>i.'ifr<.o'i'.» i : ; .- . .n.r.i \ IT, liance of 11 Cue to (J actual- sum of 56 cords s bound bequan- defend- ^fused to It to the le wood was not d done. ; and a ed, the ntained ; but a rmining w a re- correst ojed by him on I to the d'Some saction int dis- e tola osten* indivi- e may e pub- part of charge • act ii; of the ot be ieved, t had I full d not W NEWFOUNDtANir. SI 1 Jjaid over the whole sum to the pTairttiff, the ifitT defendant was acc<>uritable for the balance, _, , _ - ds money had and received by him to the Michael Ryan Use of the plamtiff ; and that the Jury ought «" accordingly to give a verdict for the part un- ^^^ "Terring- paid. With respect to the receipt, it un- ■'°^' ^'*- doubtedly was presumptive proof of pay- ment; but the Jury should take all the cir- cumstances connected with it into their con- sideration ; and it belonged to them exclu- sively to decide for what purpose it was given, and to what object it ought to be ap- phed.-r^Under this direction, the Jury soon returned a verdict for the plaintiff for £24. HuTTON, M'Lea & Co. against George Rennie, Septembet 5t^, On this day. at the instance of Mr. Robert Ord«r for . p.,.. Huttqn, a rule was granted, ordering George to show cause why ■fienme, master of the brig Betsey, to appear he refuse* to per^ m Court on Monday next, the 8th instant, 'o'^*'>«8'«einent; to show cause why he refuses to fulfil a cer- tain agreement, which Was entered into be- tween him and Mr. Button, for the charted of the said brig ou a foreign voyage; the minutes of the Said agreement having been taken down ill writing by Mr. WilliamKydd, and approved by him the said George Rennie, Mich. Meehan against iou^. ^f] . Brine. A Questioh hstving been raised as to the liability of the parties m this cause to the costs of the two actions that had been tried between them, the Chief Justice stated, that as one of the trials was o^p«#<»#i Wt^\f.«% .«W«^ sent cirp^stwi" cesoftniscouniry, • lessee who cul- Uviiies w^#tf lond 19 not to be pre- sumedl to li^va done so with the concurrence of the lessor, and for big benefit. .rVf. 'UiiAiRaitii'd CASES IN TH?. SUPR^^E COURT, guidance of inierchants on a very material poialt relating to bills of exchange, and, by, consequence^ aftecting the intei^ests qf iHu; whole commercial community, than, for the particular advantage of either of these par< ties, he thought th^t the costi^ of that tri^ji, ought to be borne equally between them;, but that the costs of the-pther trjfil ifiusi follow thejudgment^ Nvhich had been finally; givcQ agaiflisttie defendants. ; ;, . ^ '. 1: imun LiDsjoN Newman* appellant, *^'f . *ioi iuun and ■ ^■■■'.^^vvi s- h^mis\m John Goff, respondent, j| HE action out of which this appeal arose, was brought in the Surrogate Court, to recover a large sum of.mpney, for rent of property \yhich the defendant contended did not belong to the plaintiff. It was trivd by a jury, who found a general verdict,foi* the defendant ; and judgment was accprd- ly given in his favour by the Court below, /ifter hearing a few observations from both sides, the Cf^iief justice sai^ : — • l^hp right of rent, must depend on the t^0t to tlie properfu out of which that reni U-ip, \S9\IG ; afij! this brings the title |ntp question. It appears, that in 1780, old Sio- lomoii Goss conveyed to appellant "all the plantation then in his possession, situate at Torbay, or ^ the possession of any' other.'.' From the general words of this instrument, picj Gosss pQfJses.3lon. at thje time pf cqn- i^e inu«it loo^ £^.t ff,Q!^s'spQi?^esm^, ^o sj?f wli^t property tlje ""iipperKafit derivjed frp^ fpr the Jury on the former trial to datermiiie. »URT, ry .materia^: fe, and, by, ests pf iHc; ban. for the tiiese pac-: f that tri^][, feen. ibemi )een finally; lantf lis appeal ;ate Court, for. rent oi* contended t was trivd verdicifoir as accord- Hirt below, from both nd on the h that reni i title Into 0, old^o^ t" all the situate at ny: Qther.V nstrument, § pf cqn- ray^d f^pjc^ ietermiae. Siffc^, tlreh, they hims siren ft g by eftbtet the Ie89«e;pr his ^sjignfee;a« any period^ of Y!l W®' ** nraat be pti&^flriW'to hkir^h^tA rr^J^y^^^ ^^^ coiSsfeiA '6# th^' f ^<3|lf epfWy h^aye jjeen laroii^ht t^ reliniqiii^li^ suph rig|i|t tp principal ^d injlerest fotf r a Jljec^ri!ty. iby ^ whi"»woI!*»a<>i9inl •-> .^.^ ^.qj f^i^j. ),3 ,f^.y .«;[; .,-)-!>'. yi*') rm Sdv Ut:. .iiH nri COURT, 'viden^e, that he agreemeni; DDpt hold thaj; ;h% to recoYer. nan, %yho apT oney >vi(h tj^e ind, therefqre, «pg M^hen. b^ %nt haii it not 1 it^ it is \o \»^ aad th^refojTf aid is, but r^ar If ther, ^hat th^ prek_ have been approved by all the trustees, and in point ottlct, has Lt been me^ upon, r^nj compelled to return to the case as it has betn transmitted, from the Ipyer Coort, and, in the absence of any fix- ,mn«"l *^f'^''«'*;?'? agreement, decide it «pon the law which applies to the circum- s^ajices and statenaent admitted by the par- ^2? ^^A S®°7® ^^^^^ argpment it has been «nSiv^ ■ "*' ^^A^ ^^^ batqkr^pt laws do not ap^iy here. As a system of insolvent debt- ors law Ihey certainly do »ot apply; be- cause we have a peculiar system of our iwn. specially made for us, and becaiwe there are Jpt the means here of csirrying the English hm^rppt la^9 wto effect; lut ahhough the l^aolcrupt hyy^ as a ^^ten^, do not apply tp us. we musf always refer to decisions of thp Courts at honip, to guide us in th^ de- t.erroinatwp of Ihoie points lyhich grow in S"^i? o«V*'^">»»^*«»t<^*«es. "^ith this yi^w, Jingljsh courts have had recoqrse to tjh/e ce^stobonontm of the civil law ; and H is repiarkablo that the rale which is ipplie^itt W^ simj»r $0 the present, is in^^reality turned from the Soman pode ppon the subject of succession, ^'damnosam quis- 9VA^nJ^^mTATE1^ Apmu non compelli- Tun; pp W cases of l^anlcnjptcy the assiff. i^ ^ apt qWi^ed to t^ce % bwkrupt^ tern m an wtai^, ^^\mf^eJ lil^e tp do sp. low what are ^ circpms^iices bpfpre us ? I ;8 not «v*n contendeij tjiaj the trustees expressM^y mt^ntion of taking an asS f wry, it appears frpm fi^p ev^d^ce of Han- n^ifn, who WW W Iri^atyfprtftjjiip^p with OURT, nt to two of !)£ two tnis- md does not \ by all the las not been return to the ;d.from the eof any fix* t, decide it the circum- by the p^r- : it ha« been laws do not )lvent debt- apply; be- of our own. Be there are the English It although not apply Jecision^ of s in th^ de- chgrow in With this reconrse to r; anidttis applied in in reality i nponthe SAM QUIS- :OMPELH- ' the assis:- hwkrupt> B tQ «|a sp. before us ? je tfijifft^es ^ a^/^ign- n tlije pon- e Qffff^r KEWF9UNI>X.ANIX the appellant hir.iself, early in February, that H was mutually un" liie of the use ahd Occnpafcion, (he retxi reserved by the lease may be presumed^* ^ fair criterion to go by. Now (he trustees occupied the house i'ri questioii from the 27lh December, 1815, tilt the Isl May. 1810, being little more than four months j and fbr this period there has been r*n allow- ance made by (he Suti-ogate equal tO hafif a year's reserved rent. The rent reserved s^eems to have been very higb ^ and the judg-^ ipent below iilgiving ohe-»third beyOnd it, has, J think, gone to th« full extent Of what the a^ellant can fairly be entitled tO. ft is to lie remembered that the possession of the( (rus(ees vvas not optional, but rendered ne-« cess.ary by (he trust they were bound ta perform, and- 1 therefore hive no hesitatiotr iti affirming the jddgment of thfe Surrogate Court, which was for £25a against the re* spoiidehtB'.'^"''^'* --•Jiuyiriuta.ii i>,» Ut -.Aohh uili 3 ed for^y tirentffi- solvent;"^': din foif' year's,*! hith h^' tmt thisr' if there/ nnst be' af the" d, arid' y have' ore iiff,' , fornrt- uentiy,' the re- (ipancy ^ actifJ- the va-*| e ren<^' irtied {ii^ rustees m the May. onths ^' alfot^^ 16 half! it, has,'^ lat the t is to of thet ed ne-* jnd t&\^ itatioir' Togate the re- uv/ uiii iiciivo'»k. .'J rfIS ', a^ion vras to recover Twelve I'ouiids, T^ree Shillings, and Fournende, «imount due as wages to plaintiff's son, While an apprentice td the defendant. ' Jt ftpp^aried that plaihtiflCs son was hohriA m apprentice to defepcjant, as a cdlnnet- piaker. But that defendant having no em- P.'9y'neritin that line, had taken hisappren- J^ice wjth him to Harbour Grace, where de- >e|^fta4iT''^Jjflildwig a^burcb, i luK |»?\the apprentice, p»l conceiving him. eelf liable to work as a house carpenter, and f n?a^ist^atCT. who, aft^ !?T^^^,/^2'?^Miea several times before U^'^^EJ^fe ??^ :J.ein^>atisfiea tliut '^•VM^^^^VH W ^qploy merit for tfib 2SSM#1^9^^^ H^e Jf • fcabihptlwo^, ^ane<^W«Be IndetttMes. - ^- > ' "'^f^K*li'Mi| <a for thf! price of them was premaiiire. And w to the j£30, the Coiirt did not hold the de- /ipndant liable. . , - ; . ^ndgmei^t pro d^endfinttr ' I suH • ■ ^ '••;•■ ^' '•'••■•■■ ■■-''^ -• ■ ■ '• '■• •'! ; ■ ^t7iE, Rsii^ «B Go. i^Msr T^nkf ''^ ■■iiiul ■;;::;;. .:;;;>,, Aftll.I.SOOB*-.'!'- '- * 5tS'<:»u8ec^e on jeaterday^ 8^4 JJii. -^fia having been. furtherhe^Mj ,,,,,!., ,,^,.^ . It appeared that the nsl^, , y»aafi^ ^<\)i3^ Jhe sabject pf t^q fictipn, h^^, be^ii .shijpipfi^ That the i&sh h^d i?<^ei^ sp^ fendant, who, iii jpec^mhfer jfiffc^ J^cji^Q's^ New .pi^^ivick, lidyj&i^ |he pU ' ■■•v >:'i 11') Ivo : liiniseifaccout^t^b|e'foi?,i]i^,Qa,pi^eds.,:f, , ^^i^J" fhej? cixq^Wtaffl^eA^i^^lie ::ft^ considered the cause of action to havf»>,su^ sen in New Brunswick, and, consequently, that the Coart-Goal44M>t«ttach4he-property of the defendant who residp^ there, imder the mbi tfi6 49th^ Gi^O;' 5; (»pi 2^^:' ^he suit was, therefbre^distttiftil^d ; but without cpsts, , , ' i t: iojJutjTjij 'lo 'j-jiiv.i'.'jU'A'.rji uiiJ 'kA Od .">ui\M\ ,ilfi iljiv/ ij'jvil !){i •Aiilif yUii\h\ _ , :■ . h!;'''v»i; ij<:; .•':!<.>(•■! ,-'1V([;ifJ V'tbi'Ufj Ro t def ly c pay fam whii his] fiinc Ooui rectc sanK wag« ant> ] Cu 1P« Thiis fetrtTct comiM who i wfthit titltd tionoi tion ol est of diffeTc delays upon the sul JRT, the Oouft; delivered in the fell the time iii tliQ actiii r^. And 9» Id the de- NEWtOUKDLAND, H ■j:'. s i^dljl'^^d e,<*nn^ii. isequently, te-pr<^rty sre, imder ut without ■'. ^i^ll B. tii l)f)5.w;ii > iji.v viuni.l KooER Flahavan against Geo. Gamble. , 'Q^^: i}.¥Pr^^^^\ ^^' '^^ '^"^ «f a ''ouse. The defendant ackno^^ledg^d the debt to be just- ,^1^'.^"! ''^'^*^' '*^«.'^^ »^^d no means of paying ,t at pfesent; that hti had a tvifeahd jvhich Mrould be due to him for Wages bv f^lTf^l^k ^''MoS^^' constituted the only iS^lfy^L^® satisfaction ohhis debt, and of Cttmbej^ed. tJndef these circumstances, the sam^lw''?^^^ 'H^^' ^d at the same tihic, ^iesifed Mr. tiogan to hold the ^^t i!?*\«»g^t become due to the defend- ant, i^ubject to the ot^m of the Court A «tay of eitcu« tion granted, in consideration of the poverty of the defendant. -Uu. I Wi i ^i< trustees/of CRAwroBD & Co. appellants. CuNiNOQAu^ Bell & Oo. respondents. ^f/^r'l*?,' ^^^W'^^iice now ptol ^^tic^d tfie folldwirtg judgtnent : ^ Jir^Xt?^ haft tai^ed^attticfetion upon Ihccon. StTo'ction of the act of the 49tli of his Matesty commohly callfed the Judicature Act, t^iz! yrbo mjko biB cbMdered a cnrtent supplier, titted to a ^riBfefeMfe payment, in the distribii. faon of an insolvents effects f As it is a ques* IT ^/.S^? ™<>^^°^ to the commef cial iiter^ Sl5*his Island and one tiptti which 8om« diff^ence of opmfon has prevailed, 1 have nnnn^i ^^^."^ the judgment of this cmirt upon rt. «ntil 1 ^shojjld be enabled to ffive -^e suujeci tnat Uelibjratc and KVeqirent'at- Octoler 23df. In the 49th Geo. 3, c. 27, the worda " cunmt season " and •• current sup' plies," have an evi- dent rtlation to, and are eiplanalo- ry of, each other : reason, meaning the time of the year when the fishery is carried on ; and supplies, meaning the articles actually wed in the fisliery. '■%\ \ I 42 CASES IN THE SUPREME) COURT, 1817. tention, which its importance seemed to de- mand. 1 cannot but be aware, that m the cJZ'nu'r^ir pPJn'on which fell from the Court, upon the VRAWFORD&Co. jiearing of this appeal, 1 differed, in a great CuNiNOHAM, degree, from the opinions which appear to Bell&Co, have been entertained by my predecessors in this seat, and were the decision that is now sought, of less importance to the com- inunily, I should defer to the precedents which have been set me, and rather follow a rule of construction, however 1 might be so unfortunate as to differ in opinion from those who formed it, than venture to unset- tle a course of decision. But impressed as 1 " am, with the original error in the interpreta- tion of the act, and perceiving, as I cannot Otherwise than perceive, that the consequen- ces of that error have been injurious, inpror portion to the extent to which it has been followed, 1 feel that I ought not to sur- render my own Judgment ; and that there is a point beyond which courtesy may cease to be a virtue in a Court. The facts of this case are very few, and J shall briefly re-state them. In the month of December, 1815, ^«c>';> It is probablW i\m}?^^ Island Kerame populous, and new eyenues of f rade were V I 44 CASES IN THE SUPREME COURT, ,^817. opened thp Iqcal custom of preferable ^^^^^ SSi-^^V^'^f^"H^y ^^^^«ded beyond i . telT' *ih?f ^'""''?' *^'«''^^^°''«» ^°^ goes oa to '''' * ^''^ ^fLlT^% . ^y *«»« 6th section of the i^cl 49th G^o, m, e^p. 27, it \s stated that U >yil| gre^My contribute to the advancement ^LfT'^A^i P^^"***^ becoming insolvent, were divided qmongst their creditors wuL more eguahjff than bad theretofore hem prac- ^hiL "^^ -'P !^^^^^^' ^^^^ ^^ often as it !?^ k^ u ^^*^^ ^° ^PP^ar to the Cqurt, out of Which prqcess of attachment issued, that % gopds qttacbed were insqfficient tp pay debt^, It should be I^wl^l for ^|,e (ioyrts to m\mm the parties ^t a given I^ay ; ^nd f! ^poE ex^mm^tion, it shpSld appear'tM thp dpl^tpr could ijpt pa;r twenty Z\Xmk\^ the Rpwd, ^p declare hSn insolvent, anf imme- $P far, the 4pt cpnt^ins a simple, ^Ithpueh m ^qual, pyste,n of msplvent I^w. But in- jBmuqji ai8 a l^gp 41,4 v^Iu^ble cl^ss of the cpmmMnity j;mm^^ ^s formerJy; ^i«^out capital or credif, ejccept such as tVey could mm, \%li^^ nyppsfiary to secure tjiis credit t.^^^^1 ^^^"^^ ^^ «*^ ^» *^^ bfldy of.the & ^?^ ^^P^^^*^ ^» ei^actment, ,>%A^ ««- ^Si?f r f^^i^*'<'^, *o tbp general laV, im- Saf in iL^^J'T?: ^^ ^MPlHtipprovdea f^t^I^Pt; «^«»7 «?her|nap ^ho shallbp a ^itor for «;a^., become due in 4e then SSLT^* '^-" 5'^^ *^« P^^*^ twenty COURT, >f preferable ed beyx)nd its It Judicature m undue pre' I goes on to ection of thei s st^ied that advancement oundland, if g insolvent^ editors witU •e been pra^^ often as it J Court, out issued, timt :ient tp pay ount of hjs 3 VQMrts to ay; j^nd if, ear th^l; thp IJing^ in the and imme- jffects, and pt ^\l his e, although V. Bat, ip- ^l^ssofthe ly, without t^ey could ^ton in ^he i tfiis credit qdy of .tie i^ ih$ na- il hyfy im- S provided fecjs o^a^ sh^li be a, n the th^ id twenty N|:iyFOVND^.AND.. 4^,. CyNINGIlAW, place, every creditor for supplies furnished in the current se<^m shall be paid twenty shil- lings in th^ poMnd; ftnd lastly, all oth^r T,„st^,of creditors equally, as far as the effects ^dl CHi^iS^p^ cy. gQ^ & In the construction of these clauses of the Act, It must be cojisidercd ^ reipedial sta- tjjte. It states the mischief and provides t}?e remedy ;--the mischief consisted in the tnequahty wh^ch prevailed i^ the payment of debt8.^and the yemcdy provided is, by en- ^hlmg the Cpurts, ^pon pjoof of impcndinff msolvency. to declare the f^c^, proVeed to collect the insolvent's effects, and cUstribute them equally amongst all his creditors. crL vmg a preference only to ihejish^man for hjs wag-es, and to hjs supplier for those sup- p,Ucs which were advanced upon the faith of the voyage, and which are euti^Iedtoall the equitable considera^ons of a lien, to have extended puch a preference any farther Avould have beep to neutralise the spirit of the Act, qnd. instead of introducing a more equal moae of payment, to hi^ve created the most nnequf^l system of insolvent law in the YPrld. In this view of the Act, the wor^s •' current season " and " curretit snppUes " have a natqral relation, and are expl^na ory afeacl^other-^«<(,p;t weaning the time of the year when the fishery is carried on. and supphes meaning the articles actually nsed in the fishery ; and if thes,e wor^s had al- r5!l4^^'i*''^°^^f ? t° ^^^^' "^^"^ral import, no di^culty cpwld h^ve be^« raised upon iie act \ WMi\^^ gMuaVe^le^ision oTthe term " supplies " tp, all jhe dealings between one person and anptjierip I^ewfpundknd, i^ has ceased to Jiaye aujf de^n^e or (nteHid- ble meanings ^n^ the 'statute' is flow Jut?r- prete^ a^ if there \vere no' sueh word 0^1- "^^^"^^^^ W It ^ s^plm^^ if a ^sv^ Jo, 'WjitMiiiMfiiitiii'i -li - II ■■ ' 40 1 rusteei of CRAWFORO&Ca. & €CNINGHAM, BtLL & Gov CASES IN THt SUPREME COURt, ihdiscnraiftate preference of payment, to every person who shall be a creditor in the course of the year; whether it might chanced' to be for supplies of the fishery, or the pur^^ chase of a farm, or the luxuries of a tabled in proportion also, as the term "supplies " departed from the original simplicity of its ijeaning, the word " season," kept pace with U, until It was found necessary to have two seasons, one for the fishery, and the other for trade; and "season," which originallv signified nothing more than those tem^)erate months of the year, when vessels might fish on the Banks of Newfoundland, was made to commence when the fishery was practi- cally at an en J. . But it is not merely for ret^rsing the or- cfer of nature, and creating a contradiction m terms, that this departure from the act ig to be deprecated. in its operation it is calculated to destroy all faith in the dealings between man and man in this Island It gives rise to insofvencies, which are fre- quently forced upon unfortunate tradess/ because the creditors are fearful of giving time for payment, lest they should lose art equal claim to their debts ; and if strikes at the root of all confidence in trade, and com- pels a creditor to shut ont compassion from I am aware that (Vewfodndland has been considered as a mere fishery, and, by a poli- tical kind of fiction, every person in it is supposed io be either a fishertadn or a sup- plier of fishermen. J am not disposed to mterfere with any political considerations tJpon the subject; but I must observe that such a fixation drffers from the true principle ot legal fictioii—rN fictione ebgis seimper guBsisTiT ^QfuiTAS ; and it is, beside, a great departure from the fact; since there Rt, ^ment, id tor in the it chance the pur- ' a table, iupplies," :ity of its jace with lave two the other ►riginally smperate ight fish as nnader s practi- tlie or-i adrction lie act is- on it is dealings ind. Jt are frief- traders, f giving lose an; rikcs at id com-' n from IS beenf a poli. in it is a sup. 3sed to rations^ ^e that* inciple e;mper' tide, ai i there NEWFOUNDLAND, 47 IS a considerable trade from this island, 1817 sanctioned by Parliament, and independent ^_ - , -^ - of the fishery. Witness the several acts Trustees of which were passed in the 51st year of the Cbawfoko&Co. King, those which have passed since, and n ^' the act of the last session of Parliament, ^BeIHTco' authorising a reciprocal trade between this Island and all the other colonies. But we have no occasion to look further for an ex- ample than to the case before us, which was a shipment of West India produce from this port toliali/ax; and which, without doing viplence to common sense, cannot be consi- dered^ as a supply for the fishery of New- |fo« ^l!and. Such are my sentiments upon -p Ci ; and under the impression of them, *t.^^ impossible forme to affirm the decree of the Court below, 1 have a consolation m knowmg, thrt if my humble judgment should err, that it is in the power of the par- ties to have it correctpd; and I shall hope, that as this is the leading case of a class of cases, involving a very large amount of pro- perty, that the parties will ^ake the benefit pf an early appeal to his Majesty in council. Judgment reversed.— Against whichjudg- njent, the respondents gave notice pf an appeal to Pis Majesty in Council, Abraham Malzard against Huie, Reed & Co. 'EMBERTON, of Burin, was indebted to lime. Reed ^ Co., who commenced their suit against him in the Surrogate Court, at »t. Johns, and recovered judgment on the 25th June, 1817. i?^^^T*!r7^'*'® judgment in favour of Huie, Meed dr Lo. was pronounced, an action was pemmeaced, and an atiac/ment sued out. October 2Qth. Where pootfi are sold on credit, I he price (hereof is subject to attach- ment in the hands of the vendee, un- der an execution against tlie vendor. *^#f *ig?^«i'W5^*,#"^ 1817. Jt'ALZAftb V. BUIB, RsfeD CASES IN THE SUPftEME COURT, by Sdmud Sf Oeorgi SfouUon, of Burin, da- ted 4th May, 1817, under whioh the fiSh of Petnbertan was attached iu the hands of his attoMey il!lM/%. During the forCe ofthe attachment, Pemberton, who was then nt Halifax, Wrote to Mulhy, under date iStb M^y, directing him to dispose of the fish in his hands, and apply the pi'oceieds tb pay the amount of certain bills (to which hte was a |iarty) then under protest. Upon, 'communication beiw^een the parties, Samuel 4r Oeorge Moulton withdriw tmit altachm^% and the fiSh wAs then sold by Mmiloy, the agent of Pemheridn, to Matziti'd, in consid^t'- ation of his (Malzard^s) becoming bound by promissory note, or undertaking, to pay the said j^lamtiffs (Monitons) and |fcirfliiff i^Mdllita ^A Sheriff for having illegally, as ha insisted, atlabbed the fish which formed the ■ubjeet qfdispute beCween thiese parlies. ATler m full investigattion of all the ^ircirmstanees connected wit)k the transfer of the fiAb to MalzarA, the Chief JuHice held that the sale «^Bs niof/raiM/M/enO but, at ifae aamo time his Honour decided, that as the price of the fish bird not been paid, the sum to which it aiuouuted was attacli* fRT, ^tirin) da- the fi^h of ads of his rCe of the s then i^t date iSth he fish in ds to pajr Mrhich hh t. Upon Sy Samuil 'ulhy^ the conSid^k^- ig bottnd ig, to pay d agaiiid't dk plabe ^tiil(6, ati(l > bfbught Q^diately upoixt^e } a cjt] rv. I)'j Octo6cr2^M,. HIS action wAs brdught in the Surrogate t/oort to I'eeover: the sum of £1447 ^s.Odj as current eiippHes for, 18ld, beiftg. the- amount of goods Sold and delivered by the i^espondents to the appellants. in the month of December, 1815', k^er the dose^f accounts betwreen the parties itit that year;' _The bills whiich wetd dl^wn for payment; of the above snmbaviiigibeeH netnm^d und^r pi'ot€8t, the respondents commenced thdv. action for the amount^ -and Obtained a }udg«l m6rit below; m)W whininghm,jBen^4)^. v^m Trns-; t6es of G>^a«j/^^i^i;Ctoiiiti rikustlifollow the ^nife cidOTse JicHOLa( & Co! J. HE plainli^ having ';;tApl«e^ ju;i^i^t %ili^st Mdward Jeliance, a dealer of the de- fendant^, on the 16th September last, sub- ject to Other current cfamis. on this day, at it'TT^ r ^^^ Pi^'°"^«' ^»» order Was issued directing defendants to rotam into this Court» on or before the lOth day of mvember next, a true and correct state- ment of the account current between them and the said Edward Jeltance, so thata rata^ ble distribution of this yearns voyage may be made to th^ current suppliers. , '■it 1817. V I • • ■' .■ ■ / jj < > . Ordijr la pupplj« ing mercl^airt to fuhilsh a states ment of his account with one of his dealers, that the proceeds of the year's voyage may be distributed rata* % among the current suppliers. ^parte, GRAHAMLixTtE. in the'nmtier'i^f DooLiNG & Kelly's iosolvency. t^v.^'^ ^^^*^"^ f^^ P^'^ Jn support 6f th,e|>etition and against it, ^ ' ' • lh6 Cf^ief Justice S2dd t ThisiaaMpfSfinW thj0r8,ofthe insolverit estate of: i>66iif,.g 6f W%, P^ayng*^^^ admitted 'to a mfWe share m the distnbutjpn o^fc^H^^^^ *?f ^ the petitioner fortnerlycarrledp/d c^ October miL Jf premises which nave been mort* gaged be destroy- fd by fire, after the insolvency of the mortgagor, and whilst they were under the conlroul of the trustees, the mortgagee can claim upon the ge*' neral funds of the insolvent. *'«nv m tn^ paymrat. took a 1 ?n:^fetfaiii;hbuses,^ob^evi^^^^^^ i I CASES llf TQ6 SUPREME COURT, 18f7. ii ^ ii GRaAaM LltTLB in ibe matter of JJooLtiTG & Kel- ly's tnitdlvauoy. ■• -:t:]A £ iin,!.f. «ii{ lo otto flJi-w .:'<\ /if i ill 'rvHorUmi: "'■; rlnvpiw^Uance of this deed, J)ooUng ^ J^e% entere(}jipto> pRtitionier's busJDess, as general s/iopkeepers, and took possession of his stock and trade. The first instalment was l-egularly paid f but in the month of No- vember, 1815, before the remainder, amount- ihg^^ to the sum of ^3,420 had become due, they were declared insolvent, and trustees M-ere appoint d to collect their effects, and divide theip among the creditors according 'Soon after the insolvency the petitioner proposed to the trutetfees to give up his claim' upon the insolvr»its' effects, upon con- dition (hat the above-mentioned houses, to- gether with the. arrears of rent, should be delivered over to him. To this proposal there appears to have been no direct reply ; but it would seem that the trustees did not deem it right to accede, inasmuch as they afterwards received the rents of part of the mortgaged premises, and the petitioner ne- Ter entered into possession of them. Before anything, however, was done, the whole of the mortgaged property was destroyed by fij-e; and in consequence of the loss of his 3ecurity, the^ petitioner claimed to rank as a general creditor upon the estate of the in- solvents; and with this view he wrote to the trustees, who replied that the debt was not disputed, and that he would be entitled to a shprie of the dividend when the current sup- pMfs, funiji other pr^arable claims, should liave t}eea j>aid 29^. in (he pound. ; ;! _ Upow this admission, by ihp trustees, f shall merely observe, |n passing, ihat it is the duty of the; Court, under wbos^^uthori- ty the trustees si^e particularly pi aced» ^ot to suflTer thei iii%ests otcreditoi^ to be inju- rp;d hj^ un|uaird€d admissiqns. , ' Unless, thei-efor^^ thft ^jftisji ^ t(ie peti^ ti "i j i' y IT, Pooling ^ siness, as lession of istalment ihofNo- , amount- ome due, \ trustees ects, and iccording .Tilinj Ni;WF0UNDl^AND4 tbner may be found to rest upon a more so- nlk""T?^"' this admiseiolTwill not sup. ^?wVk * °'® ^'^ ^^^ P"°^P^» facts, npi« 7\tf ^A *i".^«*>o"« have heen raised for e consideration of the Court f is the pe- aS.'fh'''^' ^ .^r^ '^"^^•^^•"g demand gainst the general funds of the insolvents ? and IS the fund itself to be dividXa„aTlv am.ongstallthe creditors, or only amTnt^ ttL^^rcyi^^^^^-'^^^'^^^y-^^^ thuf^i!" ^^^"^^ P'^*"*' »* '^ not disputed debt Ind!lT^'^' ^"' ^'^^^ ^^' « ^^^Me tnA uu^^C ^l^'y mortgage implies a debt: and although there may be no covenant ?«; the payment of ,t. yet the mortgagor contl s^' dec^d'^d " ^^"'^ ^~^' '^' beenLprTs!; In cases of bankruptcy in England if * creditor hold an insufficient security fir bis plied in the first place, to the payment of his demand, and prove the balance, ifany re! mam due, under the commission ; and it should seem, upon the same principk if the property upon which a specific security is held, be deteriorated, or destroyed, the ere! d.tor may resort to the general fund in The hands of the debtor or his assigns A doubt did certainly present itself to me at the hearing of tJiis petition, wheth^ The . .LX'» insolvency. uf ssuiti »'(" .'riiKii 'iiiUf'Uli'U) I !3 M CASES IN THB SUPilEME COtJRt, 101 r. regulating insolvencies in this Island, speaks of ^uch persons "as shall be cretlltoi-s," and would seem intended to have a prospective foi-de; Ir -"w...,.ucKivKL. Before I enter uport the second point, I iVs iMolvttjcj. shall direct the accounts to be produced^ and tlie proceedings of the Imstces to be laid before the Court. . , Btparth, Grar'am Littlb It) tHe matter of ywember 14th. ^k A writ of Baheat Corjma to remove the body of Pat, Kent from the gaol at Ferryland, and a writ of Cer^ iiorari to remove certain proceed^ ings in the Court of t^ess'ons, at Ferryland, into the Supreme Court, issued hy the Chief Juttice. N this (lay, Dawe (upon tfie affidavit of Patrick Crane) moved the Court to issue a "Wffit of habeas corpus, to bring up the body at Patrick Kent, whom he stated to be in confinement in the gaol at Ferryland, under a_sentence passed on him by John Baldwin, Robert Carter, and Andrew Morrison, Esqs. justiqts of the peace for ihe district of Fer- ryland. He also moved the Court for « writ of Certiorari, to remove the pcoceedings held in the said Court of Sessions in the cause entitled the Kin^r v. Patrick Kent. The Court granted both his applications, andi the several writs Were issued accord- ingly. November XAth. Tn the matter of J. Ex5D£rcott*s Intestacyi JIT having been stated to the CoUrt, that JohnMndercoU, of the parish and coUhtV of l>eyon, England, htely*died*irite^t;ife, Ifea- vm'g certain property and eft'ecfi in tfiM iJilai^'t?, part of which i^ stilted to Wittth^ pp8s^s;sioii of Mr, WimdmBut(,of^jeMtti B^y; pT^nt^r, his late master V it fs/ ifei %^''9'^%d b^ the Court, tbathc, the'isaiii irtj^iatn BmM forthwW Mk^ out'hi^ iiG^dunt . Baldwin, sottf Ksqs* t of Fer- Hirt for a oceeding9 9ns in the 'ck Kent* tlications, 1 accord- ntesfacyi ' ■■ .' ) ■■ tirt, that ^onhty of tc^te, Ifea- I [ft tfif^ bei)ith<^ 3, thier^.: the said oiit'hi^ tlie said II i NEWFOUNDLAND, *k'* >«j"";ther ordered by theCoort, that he eSoS'/r' '^' ^"""ediately pn tbe rnnT? u""^"^^^* *'*^"«'"'t the said ac count, together with such balance ^9 r^^ "he sL 1^""^^ ^"*^"^'»= '« ^''^^ «ta?e Court .«t*r''^^''''.' *^ *'»« ^'^'•k of this rn„„! ' r *t^ '^'"^ *"°^' transmitting an ac- count of such goods, chatties, and efflcts as may remain i„ his hands, or in the hands' of Bav Ihl P^'"'''" '^'^^"^ ^« Conception iJay. so far as comes within the knowlcdc© Qftam, the said rTiYZ/am Bnlt ""^""^^^^^ 5fi 19!7f In the in»M«r of Endehcott's ;l (,(' (* t f I '.I ' ..'lui vuij 1 »; 7 V -— — r- ^ ■; A. HIS was.an action bronaht l>r «»,i.i*i. g;^«/"-, »s the .ttomey of hi ft fer3 'F'nter, to recover the sam of Am i^ °"7«"» aflnaity due br^r ^Tir^^^ wS"d ly ''boml eS:S'bv « "'"'^^ sent defendants, «*««»t«*hange, the indifferent ! bills being ming insol-" considered and not en- en t for wa- ges are the ?ficially in- ned to the hicb is ge- f payment e planter's Olds, that or the wa- ling such at the bill nfic claim e entitled ! event of iflg insol- 3rience in convince NEWFOUNDLAND, 59 me, that, as the solvency of the planter de- 1817 pends upon the solvency of his merchant, if ^ — , A_ ^ this preference of payment were lost to the MEANve Pynn- servant, he would, most commonly, lose bis '"^*'"'*- *^*''*' wages along with it. And the uniformity ot justice requires that the same rule of con- struction should always be applied to similar cases ; and that a bill of exchange should lOt he considered as good for wages, if the mer- chant's effects will pay it; and no bill at all. It the planter be the better paymaster of the iwo. Circumstancep, however, may vary the rdation of the parties to a transac ouin other respects like the present. For exam- ple, an express agreement, or an understand- ing amounting to an agreement, would do * »oj but, in the absence of all agreement whatever, I must decide upon popular prin- ciples ; and it affords me a consolation to think, that the decision I am about, to pronounce in this case is consonant to the rulei of determination in England.r^lshall» therefore, hold, that the servant, in taking the merchant's bill in payment of an order drawn by his employer, thereby discbarges the planter, anless a contrary intention of parties be shown. In deciding in this way, however, I am ^"'aro that my limited acquaintance with the business of this country leaves me very open to.error in forming my judgment; and 1 shall, therefore, be always ready to listen to any new arguments which may be made upon the subject. I m 1817. •Oeccmber &th. CASES IN THE SUPREME COURT, Patrick Keep against Trustees of »HANNAN & Co. Servants in tLo fishery who have taken, at the dose of the season, bills from the supplying merchant in pay- ment of iheir wa- ges, are entitled, upon the return of those bills under protest, and the insolvency of the drawer, lo claim upon his estate as for wages. ^f timfof X^'T^o"' *^^«^ ^« *'^« ^««ver8e wS?h illustration of the reasoning upon wa shL>n^^ TheplS iHe year 1815; and at the close of th** spa *te"l. ^'^ '"''\""« *« receivereof bis of ift?« ,k I,. ''* '""sefailed in the sprine to S?*.""" '''i' r^'-'ned under protest irtheSfo J jr^^? '" P«y 'he servants. plaktlF^^;.i 5 K " of "Change which the a Meff^M l***^ ■"" "ailable to him as That a hill f^ ^" ''"Ses altc-ether.-l clafm l,»i h °' "^^s /an^es a preferable onTyreml^T •'^''*?'^5L ^^'^^^ ' "^ it Wstinn K^ *» "qu'rehow far the bill in qnestion bemg drawn in the fall of the year rf another year, will affect this partiSul^ ^ The act of the 49tb of the King, «!«, a &nv ™r"'r'"^^'"»°! '^hich, taken s^onV nV .i:- ? S'""S effect to the provi- sions of this act, we must remember tLt it se=«i„ f ^* '"'"'"encies during the fishing season, for reasons of evident policy that Sf if'theTj"^' ""' r'j>-y-^«^»the IZ ^„ „ ^°"' *"'' 'hat when they are & /• P"'''"'ance of the statute, it is in *>«. of exchange, the goodness or badness of \ )URT, stees of he converse furnishes a oning upon 'he plaintiff planter, in of the sea- , drawn by; ;ivers of bis same bouse 1 the spring tier protest has not a ! servants^ which the i to bim as n's estate, :?ether.— preferable d ,* and it the bill in f the year, the spring particular »■■». , girea a s become ch, taken n of the lie provi- er that it is island e fishing cy; that mtil the they are it is in [Iness of NEWFOUNDLAND, which cannot be ascertained until they are sent home and presented for payment- which must occasion a delay of some months,' ami without any imputation of /«c//^, on the part of the servant, may throw him entirely out of the protection of the act, if the word current be confined to the exact limit of the season. To g.ve the law any operation at all. It niust be construed to include all the interval between the close of one season and the commencement of another (while the proceeds of the voyage may be supposed to be not entirely appropriated, and new rela- tions growing out of the approaching season ?easo^n1fth"'[f-''^^' during this tfme. the leason of the thmg requires, that if a bill for wages be dishonoured, the demand for which It was given should still subsist in the full Wreffects'' ^"'"' ''''''"' ""^^^^^ ^^"^ ^'^'^^' «f «,7?/'r l^^ '^^ ^ contrary interpretation, would be to make it a dead letter. It?s rather to be lamented that its provisions had not gone further, nnd given th!^ crS ^IZ^^^uit^^ preceding .eason an equa lor the fisherman is clearly the first obiprJ of thecare of the legislature. But neeS preference IS confined to the current seLr that liberal interpretation to the Act vyhici! may secure to the fisherman the benefi which was mtended to be conferred „>on As, therefore, the merchant who mav have furnished supplies for the season Is considered a current supplier within ile equity of the statute ; so the servan who may ha^^e received a bill for wages.is entitled T.Vtl''}'^ t'-^'^ bill, to Lvf a pS •-^v ^^ami lor his wages, although the sea- 61 1817. Kbbf V. Shannan Si Co. 63 I * SU Attn AH & Co. CASES IN THE SUPREME COURT. new season "'^ commencemeirt of a lence to propriety m language. " ^ ""' ihe principle of the case being disnosed Sribi Jd in IT*"!' b^ been affeady* payafiJ:?a„*5^;:vXcfriSr^^ OURT, earned, pro- cement of a ' ^ay, J am d theinten- t deviating ng any vio- ig disposed iered is its inan ^ Co., en already the rule of sdits what- \ieafor the is difficult instanced. It the loss are inte- • There- upon bills 'uch ratio IS the full whole es- fficient to ms. NEWFOUNDLAND. 63 James Shaw against Peter Le MESSURIER. Fpp December 9. v« .u ^""'^M- This is an action to reco- '»^l'c owner ami ver the amount of freight claimed for the "'"***''' °^ * '<■«««• carnage of a cargo of potatoes, turnips and "'^y^««^«»«'/'«iK««t Se a- P? • ^ "^''^ ^^^ »0 written contract been destroyed in ot aftreightment ; Init the bill of ladin«- ex- consequence of ha- pressed the quantity of goods receive^! on j!Z^''" «^*l"'**^ «pon their- delivery at St. John's. Q„a^re, if fre bIu ine vessel sailed about the beginning of *^'*" ^^ recov.-rt.d iNoyember, and had favourable weather, and '**^ "*;«'-« ^^ich a short passage of five days; but upon her K Xr^r arrival here, a f^re^dejicienc^ has been found c^.^:;! '^AZ'lfe in ine potatoes and turnips, on delivery, '"^"'t '« '•« *«/»rc/<, lliis dehciency constitutes tlie ground of t*'''^'^'' throuuu resistance to the payment of frei"-ht Th^ " "^"' ^^ *'•« defendant contend^ tha"t he iT'^ot lia^S: K^^r Te^t 101 freight, until all the goods which were t^*'. »M,t the snipped are delivered ; and the plaintiff '**'"^ '" ^'"*=f' '< tttatntaininfr iltnt- ..ii ii. . _ _ i ■ '~^. «as inclosed are can freiulit be d^- niaiidcd for ihrni? It IS ipmarkablu tliat this case septus not to have maintaining that all the goods have in rea- i i i lf;or f r"'^ l-tUiatinclT^quence IjltlTa'.^t ot some of the potatoes being in ajrosfed ''^e q,.es io„ ,», condition when they were shipped on board. """ there has been a great destruction among tliem, as well as a diminution in bulk. ^several witnesses have been examined on — the ipart of the plaintiff; and from the whole •"'"'e'v"' '"y dt'^ct of their testimony, it appears that part of the r-'".'-'?"*;?" '" **" ZT a"„d .r'"'"^ p"?" '•™"' '" » f™^''^ tti'rw: state, and the greatest loss among the pofa- India trade the loes was in the situation on board the vt ^^ '""'»'''* •» payable sel where these frosted potatoes were so put "r" ^''^ n«ant''.r onboard. It is proved that when they to^ok ItcT istri:;": /ar Zl wjl\L,v ''''«« P"»''yFOthet,cany. B„t the usage of a particu. it, caJnol dltcrlr ^ P°'"'' ^ '^.^ ?''?""'**^ **» circumstances pcAliar to reJi^TTJnThJhV ^"""'■' ^''''^P^' ^'"'""* «'°«« investigation of the CASES IN THE SUPREME COUKT, 'fil7. heat from the hold of the vmsd Shaw V. nvas converted into wet, n-id ........... V, ith the rest, so as to lea- en ihe wbol o:nnioj)ica?ed .e co.u- 11= ^*f tiguoas moss with corrupt ior. It has been attt^npted to show that tKe dtck of the vessel wa^ insecure; that there was no lining round the main-mast, below whicli the gr Hk'St loss happened. But this IB successfully refused I r the testiiaonv of the mat \ who iwears ihere were wened by the ►taloes were all we ac- ', which ge- this fact by it that there fthe cargo, be partly nstances ia ( to relieve elivered in were in the the vessel, bound for t the pota- lat a clerk •ard to sell ' and mate the money is not part sel should NEWFOUNDLAND* 66 I 1817. Shaw V. be use .,,. Arthur Neil, J VVitnesses. Let the insolvency be superseded. F. Forbes, C. J. Lank's InsoIrtDcy superseded. Winter against Winter and Others, Af^^a W"" ^''^'^'' *^ '•^^®^®»" *^e snm of /«/ * ?i^- ^^^°^ °°® y^^*''s annuity due by John Winter to his father, James Winter on the 20th day of November lasf; and t; the reguar payment of which, Mr Nicholas Gill and the late Stephen Knight iZZ jITJ^T^ ?T^'' ^y a bond, dated St. John s, 2d October, 1806. wLT^^^T^ ?^*^^ insolvency oUohn frtnter, the Cowr* directed the judgment given against the same parties, on th? 2o3i November last, to be amended, and to be entered up against these defendants gene! Ifeemler tlth. The judgment which was gir'Tj in Ibis aoiioo jj> Ihe 20»h ult. (sea ante p. 65) amend- ed, in consequence ©f Ihe principal obligor in the bond bavin;; been de« dared insolvent. 08 CASES IN THE SUPREME COURT, 1817, J)ecenibvi 'iOth, The offifls of Marshal of the Vice Admiralty if not in the grant of the Crown in its regnl Gbsracler ; nad cannot, tbere'« tore, be in the ap- I'oiatment of the Governor, unless he holds • civil commission as Vice Admiral. — Nor can (he title of an individual ap< pointed to this of' hce by the Go- vernor, merely in virtue of hin poorer as the King's rr* presentative, de- rive any support from the recogni- tion of him in that capacity by the Lords of Appeal & the High C( i of Delegates, v , the other band, a person appointed to this of ce b»' an admiralty pa. tent is to be con. sidered as holding that office, not from the period of his assuming the duties of it, bui from the time of its enrolment in the Registrar's Office in Loudon. JAMES Stewart, Esq. against George HUTCHINGS, Esq, J HE defendant had acted for a lonjj se- ries of yeir " rshal of the Vice Admi- ralty Coarcin this island, under a commis- sion from the CJovernor ; but the plaintift' had been appointed to the same office by an admiralty patent, dated so far back as the 9th August, 1808, and now sought, by the present action, to recover the amount of the fees and emoluments received by the de- fendant, during the time in which the plain- tiff contends that the office vested in him by the patent. The particular facts of the case, as establish icd by the evidence, and the rules ■of law applicable to the several |>oints grow- ing out of those facts, are clearly and dis- tinctly stated in the following luminoi s ind instructive charge to the jury : — The Chief Justice. The present is an action for money had and received, being the amount of certain fees and emoluments received by the defendant, as Marshal of the Vice Adm ilty of this Island, during the time, as the plaintiff contends, whei. the office was vested in him. The case ^ a mixed one of law and fact, and resolves itself into two s^enerr.l ht ids of inquiry :— FirFt fromii^Aa^ time ia th< plain- tiff legally eii.itled to receive hn fees? And, second wl t proportion is he equuably entitled n aive?— The lirst is a qntstion of law *or the consideration of the Court; and the second is a question of fact for the Jury. Upon the first point: it appears that m 1796, a commission was given by the then Governor to defendant, as Marshal of the Vice Admiralty; in virtue of which he en- tered upon his office, and continued in it i URT, I George a long se- ice Atlmi- a commis- le plaintifi' le office by back as the ht, by the ount of the by the de- i the plain- I in him by )f the case, id the rules >ints grow- and dis- oinoiu and sent is an ved, being moluments •shal of the luring the whet, the and fact, I ht ids of th* plain- 3es? And, equitably a qutstion he Court ; act for the pears that y the then hal of the :h he en- nued in it NEWFOUNDLAND. if iiiitil 1813 during^yhich period, and after the date of the plaintiff's patent, the defendant I rcceiv'cd monitions from the lords of appeal »l and the delegates, addressing him by ,ame' as the Marshal of the Vice Admiralty o Newfoundland; and the validity of his an. pomtrnont was never doubted by himself, or disputed by others, until he was unexpected- ly superseded by the Lords of the Admi- f hp^if T ^jsappointr. at from the Governor, the defendant has rested much of his case and the Governor, as the King's representa- tive IS undoubtedly invested with many great prerogatives of the crown, amongst ^Z}. \t' i^'' of filling up sichvaca^n offices within his government as may lie in the grant of the Crown. But it is to^be ol " served that this particular appointment is incidental to the office of the Lord High Admiral, which has been so severed from th Crown, by the grant of that great 01 e, that nothing (a), it has been said? but the authority of Parliament, can re-unile IJT* v"^"' therefore, the office of Maishul of the Vice Admiralty is not regularly in the grant of the crown, in its re,;nl character, so rnent of the Crown's representative as such • and no civil commission appears to havC been granted to the Governor here, as Vice Admiral. Still less can any title be derived from the recognition of the Lords of Appeal, or the High Court of Delegates; for as the office was not within their dir, a appoint- ment, so It could not derive any force from any indirect ackno^^ ledgment by ihem In point of strict /. -«^ title, the defendant ap- pears never to have been duly appointed to (a) 6 Hub. A. It. yya m 1817. Stewart 0. HUTCHINGS. 70 i! I Urn 1817. Stewart V. HUTCUINOS, CASES IN THE SUPREME COURT, the office of Maisliat He was, however, an officer, de facto, created by the Governor, under the necessity of the case ; and, until he was removed by a competent power, his acts, as to all others, were lawful, and he was entitled to his fees. The patent of the plaintiff, appointing him to the office in question, bears date as far back as the year 1808; but from some un- explained circumstances of delay, it is stated that he did not receive it until the year 1815. In the mean time, how- ever, having seen his name affixed to the office in the Court Calendar for 1812, he applied to the Judge of the Vice Admiralty to be admitted to his office, but was refused, as he had no commission to show. On the 21st May, 1813, he received an official ex- emplification of his patent; and on the 3d June following, took the usual oaths, and entered upon his office. In this stage of the transaction, a circum- stance took place which, for the purpose of clearing the case, it may be necessary to ex- plain. It was the application of the plaintiff to be allowed the sum of for the fees received^uponthe custody of some American prizes, after the arrival of his commission, and the decision of the Judge of the Vice Amiralty thereupon ; which was followed by an appeal, and, subsequently, an appli- cation to the Lords of the Admiralty for redress. Upon looking into the statement of what took place in the Vice Admiralty,, it appears to me to be rather expressive of the opinion of tan Judge, upon a point of convenience, in preserving entire the custody of certain vessels then under adjudication, than decretal upon t^ subject-matter in dis- pute. The Jud^e must have been aware that the case, being one of disputed right If IT, however, Governor, nd, until 3wer, his and he iting him e as far some un- y, it is it until le, how- d to the 1812, he dmiralty refused. On the icial ex- i the 3d ths, and circum- rpose of py to ex- plaintiff the fees merican mission, he Vice allowed n appli- alty for itement aairalty^ ssive of point of custody ication, r in dis- aware i right NEWFOUNDLAND. between ttro subjects, was not within hii jurisdiction, and therefore refused to disturb he possession ofthe thing in dispute. Bv the laws of England, an office is a freehobb governed by the law of the and ; an the mere circumstance of its functions being per! formed in the Vice Admiralty, conveys no more authority to that {h) Court to deter^ inme the right to the officVor its fees, mn U can have to decide upon the title or ro" nts of an estate. * ,-oTV5^-"*'' *'' the plaintiflTs title: his patent 18 dated in 1808, but he did not claim his until the following year. Admitting him to Jeged. that he was not apprized of his ap- pomtment before, 1 proceed in the chain Sf inquiry to ascertain from what time his an- pomtment legally commenced, so as to eL books 'th /'ffi •' ^'^' ^'^' ^'^' «^'d in the books, that officers m a Court who have no other creation but by admission, are not ot ficers until they are admitted ind sworn • but that an officer by grant ofthe King is w^^^T™*''^'^'''>^' '''^'^«"t being admit! ted and (r/) sworn. In a case in some re* epects like the present, it .s saidTy tlfe highest authority, that investiture does not make an officer when he is created by pa- tent, but he is an officer presently before he casToT;! '\^ '^''' '^^^^^"^» ^«« used in te case of the !:»ergeant-ut-arms of the House ot Commons, a great executive officer, re- ?oSf" V^^'^^'^'-'^ty of appointment and nnilTi ^ of mvestiiure which may be sup. posed essential to the appointment of Ma?- S T "^^ ». 1^ V- ^ <^- 3, cap. 27, aoc. U, id) craigh v, Norfolk, 1 Mod. 123. 71 18!7. Stewart IlUTCIIINOS. •Ai l f *i nj m i w 73 CASES IN THE SUPREME COURT, 1817. SlEVVART V. HUTCHINGS. ;l, i shal of the Vice Admiralty. There is, how-< ever, a point of difl'erence between the cases referred to and the present ; and it is this, — that in those cases it is to be presumed that the patentees were in possession of their title-deeds of office, which was not the case in this ; but the patent in question had been enrolled at the Admiralty, the proper office for that purpose, and received the only de- livery which the situation of the plaintiif Mould allow — a delivery to the hands of his attorney. The failure in its transmission was a circumstance which could not affect the legality of the title; it waa 2i defect of proof of title, not a defect of title itself; the enrolment in the registrar's office, in Lon- don, forms the true epocha of the plaintiff's legal right to his office. It is true that the Judge of the Admiralty here, refused to confide the process of his Court to a person who was not prepared to show the authority nnder which he claimed it; and it is clear, 1 think, that the Judge was justifiable in using his discretion in the case. But that circumstance would not disturb the right of the plaintiff, although it subjected him to the loss of such a portion of the profits of his office as the person performing its du- ties would be entitled to ; beyond this, it could convey no right to the defendant. Jf he chose to continue in the office after he was apprized that the title was in another, he continued nnder a liability of accounting- even for the profits of it to the proprietor. — ■ Assuming, therefore, as we are bound in le- gal strictness to hold, that the plaintiff was, dejure, the Marshal of the Vice Admiralty from the delivery of his appointment in 1 800, we arrive at the gist of the action,-— ;/ro»t what time is he entitled to an accof'^i of his fees. By analogy to the claim in equity for s JRT, •e is, how-* I the cases : is this, — • [imed that 1 of their t the case had been >per office only de- e plaintiif lids of his nsmission not affect a defect of itself; the , in Lon- plaintifF's ! that the efused to :> a person I authority t is clear, ;ti liable in But that e right of ed him to profits of ig its du- el this, it lefendant. :e after he \ another, ccounting prietor.— und in le- intiff was, Admiralty- it in 1 SCO, an,-— from v"^ioJ his equity for NEWFOUNDLAND, the meme profits {e) of an estate, the plaintiff IfnH? k"*"^"* /"li ^"/ P^''*'^'^ °f the profits until he affected the defendant with the knowledge of his appointment. No direct proof has been brought as to the time; but It 18 probable that it must have been kAown t"*^ J^fu^"!?'?^ ''^^"^ ^^^ time that the Judge of the Admiralty laid the case before the Governor, and was desired to continue the defendant m office.-.[See Exhibits, 3, 4, O, O.J The second point in the case depends !J?*? IS H^V\ "^^^^ ^""^ ^^« customaAf fees of the Marshal ? and ^^\i2.t proportion of them should be allowed to the defendant for the trouble, the expenses, and the responsibilitv /le incurred ? *^ ' .J^^c^u""^^^^ ^^^ charged upon the cus.= tody of the droit ships, at the rate of seven shillings and sixpence per day ; and that charge was allowed by the Court. : - .cannot, as has been contended; be regarded as a gratuity, flowing from the bounty of the admiral and th^ captors, m The custody of all prizes by the practice of the colonies, is in the Court; an(i the Court exercises its authority by the hanr^sofits omcer. ihe circumstance of capture before declaration of war against a new enemy, makes no difference. Until war is declared the court is the guardian of neutrality, and has the right, as well as it is bound by diitv to see that the rights of nations are not inl •vaded. It has been decided at Halifax, by an emment Judge of the Admiralty, upon the authority of a case which had gone befbre the Lords of Appeal, (§•) that the Marshal is entitled to seven shilli ^s and sixpence, cu&- anxious tensions^ urrogate NEWFOUNDLANiy. Court, with leave to bring a new action, as the party may be advised. In the case before me I can discover no- thmg upon which to interpose. The appel- lant was sent by his Excellencv the Go- vernor to execute a particular order; and If he had confined himself to the execution of the Governor's commands by abating the nuisance complained of, or ordering others to abate it ; and if, while in the execution of his duty he had been forcibly interrupted, and had resisted such interruption by oppo- smg force to force, the act for which he has been sued might have been justified. But, unfortunately, the appellant mixed himself in a personal quarrel, first by words, and after- wards by force, with the respondent, accom- panied by what the law terms false impri- sonment. ^ '^hese facts are not denied ; but it is con- tended that the damages were dispropor- tionate to the injury ;— perhaps tiiey were. iBut has this court a constitutional right to disturb the verdict of a jury, upon a matter exclusively within their province to determine '* The 491h of the King gives this Court a summary jurisdiction in civil causes, which are, however, to be tried, as nearly as may be, according to the practice pursued at home. It gives the right of trial by jury to the suitor, without limitation or control. 1 hold It as clear that, in the declaration of this constitution'^^ rx^^ht of trial, the suitor in this Court IS r.v6iUrii to the benefit of a ver- dict, m as h\h, free, and ample a manner M he wou,.. I.e in any Court in England. i>ow what have Courts in England held upon verdicts in cases of personal injury^— that they are purely for the consideration of the jury; as fellow-raen, having common leelmgs, but, at the same time, common in- w 1817. Roberts Simpson. itmmm mm mum 78 1817. RoBBBTi V. Simpson.' CASES IN THE SUPREME COURT, terests with the parties to the cause, they are sure, on the one hand, not to compromise an injury ; and, on the other, not to oppress hf their verdict. This verdict has given high damages ; but 1 carinot, by comparing this with cases where new trials have been refused at home, call them "excessive and outrageous," so as to warrant a new trial. The legal remedy for the appellant would have been to have applied to the Surrogate for a new trial, upon the ground of excessive damages. Looking at the case and the law under which 1 sit, 1 do not think that I can constitutionally reverse a judgment which is not erroneous in law, and merely because the damages are higher than I should have been disposed to allow had 1 been on the j«i-y. Judgment affirmed. -> «i In the matter of Robertson & Mortimer's . Insolvency. December 2ith. By the Chief Justice ;— Decision of the Chief Justice on a qupstioQ voluntari- ly siihmi tied to him by the parties in- terested on a point connected with a claim upon an in- 8olvi3ut estate. Question has been voluntarily referred to the decision of the Court, by the trustees and creditors of this estate, as to the right of William, M liver into Court an account of (heir proceedings. 80 CASES IN THE SUPREME COURT, I Applioation from the morlgtgees of premises, pledged lo tbem by a party vbohftd since been declared insolrcnt, to hare (hem sold in satisfaclioii of the balaoce of the debts still due to the mortgagees by the mortgagor,~with the Chief Justice's order thereon. In the matter of John Winter's insolvency. \fN this day, Messrs. Atiwood ^ Haynes presented a memorial to the Court, of which the following is a copy ,*— To the Hon. Francis Forbes, Esq.f Chief Justice. The Memorial of Henry Simms, on behalf of AttwoodSc Haynes, Humbly Showeth :— That Mr. John Winter, of St, John's, on the 4th January, 1815, executed to the said Attwood 6f Haynes the mortgage, herewith laid before your Honour, of premises situated near the Ordnance Yard, as security for the sum of £784 0*. Qd. then due from hira, pay- able with interest on the 20th of November following. That there is still due to the said Attwood Sf Haynes^ on the said mortgage, the sum of £133 18*. 5rf., with interest thereon from the 14th of January last, agreeably with Mr. Winter's note of hand of that date. That the said mortgagor having been lately declared insolvent in your honourable Court, your memorialist respectfully solicits the authority of your Honour to sell, by pub- lic auction, the interest of the said «/oA» Winter in the premises on which the said mortgage has been given, or a sufficient part thereof, to satisfy the claim of the said mortgagees on the same.— Your memorial- ist, as in duty bound, will ever pray, &c. kc^ (Signed) Henry Simms. St. John's. 2d Janiiarv. 1AIA. tT, jolvency. r Haynea of vrhich m behalf )hn's, on the said herewith situated Y for the ici, pay- OTemher Attwood e sum of on from )Iy with ite. »g been lourable solicits by pub- did John the safii ent part be said ;morial- 8cc. &c* MMS. NEWFOUNDLAND. Upon which memorial his Honour the Chief Justice made the following order:— Jf the fact of the amount of balance claim- ed be not disputed, the trustees may go on to sell the insolvent's interest in the lease, and out of the proceeds must first pay the amount of principal and interest to the mortgagees ; and if there he a surplus, apply it as part of the general fund; or, if there be a deficiency, to the credit qf the mortgagees, against the general fund as a general credits (Signed) F. Forbes, C. J. 81 1818. Ja the matter of John Winter's insolvency. Trustees of Dalton & Ryan against * ' . Attwood & Haynes. '^"""^''^ "** This case embraces several interesting a cS^'^h?* points, all of which are distinctly stated and proves his debt ge- examined in the following decree upon it. nerally against an Per Curiam. The primary objection made '"?^'^*"* «sta*8' by the pjaintiffs- agent, namely, that Messrs. SM ^S".; attwood dr Haynes, in proving their balance securities in his \ upon oath against the estate of the insol- possession for the vents, without mentioning the securities satisfaction of it, they held, amounted to a waver of such se- t'ssa^Vt^fe^ curities, cannot be sustamed. It is the his right tb the be- practice in England, when a creditor appears "efi* «' such secu^ to prove his debts, to require him to give ud 'L*'^^l ^^' *•*«* his securities to the assignees ; but iS doing ZdlJa^f^J^l so he does not wave his priority of claim tTs^iven" inTo": whicu he has upon such securities to the temptation of in- extentof his demand; but they are delivered ^°^^^^^y* with a up to the assignees, who are fo dispose of p Jerlnoe" are*'' f , vou/,yettbatapre« lerence given even on the very verge of insolvency, in virtue of a previoug d5fre««e«« is not so; 3d, that a party who advances money to another, through the medium of an agent no! uwi ally employe* for such purposes by the supposed borrower, does it at ijs own risk and peril; 4lh, that the pri- ▼atetransaations between the individ »? partners of two firms, cannot be "" "■' V. |n«'».'PO':a»«d with the por*".mAip accounts batwetn those firms, io nt m iiis iuSwiVcMwy of eilber oi them. lue M d9 1818. Trustees of DaltonaRyan ''v.- Attwood & AiAYNFS. CASES IN THE SUPRHME COURt^ InZ'fli ""^,^1' i^'^ P'-^^eeds, f^Tst, in pay- men of the debt for which they were pledg. h L /^ f"''' "'• '^ l''*^»'e »>e any, to the s^ch"^!''-^""'^- Jf there is a defidency, such deficiency is ranked as a general cre- d against the estate. Here wc have no Tn f ■? T^ "^'^^^^'^ *^ the same effect, and it may be expedient to make one : but m the mean time, if a creditor have a secu- nty, he must account for it before he will be admitted to Gom<2 in as a general eredkor.— nn 1 nff^? ?"*' ^'^^^""^ ^^^« delivered in ;i?« . r^r ""'] ^^'^ '2th of December, and the credit for the order on Marten does not appear to have been entered until the follow- fS month, when the principal part was re- covered ; and the credit for the cutter Ac- iives fish 18^ not given until several month.f TJ\: ?° ."'^^ ^' ^''^ ^''"^ the account was h!1 ?:. 'f '''^^ ."°' ^"^^»^ whether the or- ILn A ^u P^'^^"*" *''^ *'^«'* ^'•"ve safe; ^hen and where only they could be consi- «at.^llf' payments. These circumstances tinl In ^''T"?^ ^Z^^'^ defendants' omit- of wl ?i v^K^ ^"""^^^ ^^ ^'^«^« securities, ot which, if they were otherwise legally en- prive them^""' s"ch omission would not de- But it is contended, they were given witli a view to a preference, and therefore void 1 certainly do admit that, although the iaws, yet that the principle of equal justice growing out of them, as interpreted by the Courts at home furnish us with thiiest 2Z 5^, ^^«*'«*^f decision; and amongst m w % ?? "'' *^«»^tation in saying, that a nianifest mtention to prefer one creditor to T^:^A\ ^^ *he contemplation of insolvency, would be considered avoiding any payment made under such circumstances. For such it, ill pay-' ire pledgM ny, to the eticiencyy neral cre- have no lie effect, one ; but e a secii" le will be editor. — I'ered in iber, and does not e folio w- t was re- nter Ac- ? mont/i.f •unt was r the or- i^e safe; 5 consi- istances s' omit- curities, ally en- not de- en with 3 void. ?h the express justice by the ie besi nongst that a itor to i^ency, yment * such NENyPOUNDLAND, an u in England, although not an act of bankniptcy, is regard .d as contrary to the equity of the statutes, and void. Jnthe two payments in this case, one was an assignment of part of a cargo ot tish the evening on which the attachment whicii led to the insolvency was served d there was an order given to the defer s to re- vive money due to the firm o Dalton & Myan a few days after the writ, and only ^e day before the insolvency was declared J his was certainly pressing very close ; and It sucli a case were now to occur, I should Ijave no difficulty iu setting it aside. But 1 must remember that these things were done when It was supposed they might be lawful- Jy done, under the misconstruction which the Courts gave to the 49th Geo. 3d, cap. 271 indeed the agent himself admits that he gave the order, supposing the defendants had a preferable claim as current creditors, and that It could make no difference. The or- der having been given to the defendants to receive money, without any express direc- tion as to the appropriation of it, and the makers being at the time indebted to the defendants, I do not see how 1 can consider Sjnerwise than as a payment to them. VVith respect to the assignment of the Ac^ lives cargo, it appears to have been con- ducted m a very obscure and ambiguous way; but it is proved that at the time of the assignment, a certain quantity of fish was due from Daltoti ^ Ryan to replace other fish which had been borrowed ; that it had been JaithJuUy promised to be returned from the cargo then expected on hodLvdihe Haddock s and that it was this very vessels cargo, after- wards partly laden on board the Active, which was assigned in compliance.as it would seem, with ^previous promise, and certaialy a very 03 1818. Trustee 8 of Dalton&Uyan AlMWOOD & Uaymas. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 2.0 ^2 13.6 IM 125 i 1.4 1.8 1.6 150mm <5> >^ V /APPLIED J IIVMGE . Inc jS 1653 East Main Street .sss r^ Rodiester, NY 14609 USA ^j^B'A Phone: 716/482-0300 .^S-.SS Fax; 716/238-5989 e 1993, Apptiad Image, Inc , AH Right* R«Mtv*d r\ i\ 4s \\ Ok v\ 4R> er- sonally, for the benefit of his son, and was a gift from Baynes. As a matter of conve- nience to partners, this mode of adjusting their separate debts may be sanctioned amongst tbv mselves, but it must be by som« ■HtBiiiiiiilAir RT, s the fact, een, from iroducetl, tt himielf it in con- payment, !tddoek to y refused ■his case by Lord [Cowper, faprevif nain ob« the trus- parts of le plain- liouid be fering a >f fact, it oney to nanded, Oeynes » but aa » vonld lii but aployed t them- tempt-r io have nTview, counts, m, per- ad was conve- justinff tioned ^soma HBWFOUNDLANI), Od agreement or admission of the other party, 181» And it appears, that /i^«n, one of the part- ^ _j- ^ Ay_' ners, expressly desired the entry in the day, Tru.ii«« of back to be expunged, as soon as he saw it; Dauon* Ryah and that it was not brought into joint ac- ** count, until newrjiveyeara after it occurred, VaTn?.* I must, therefore, reject that item in the defendant's acco^jint. Hequla Generalis, iTistbis day ordered, that whenever a creditor of an insolvent estate shall appear to prove his debt, he shall be required to state the amount of any pledge or other se- curity he may have in his possession, or power, for sqch debt, and the circumstances under which he holds the same ; in order that the trustees may be enabled to see that such pledge, or security, is disposed of to the best advantage, and duly applied, in the first instance, to the discharge of such debt ; and if there be any surplus, that the same be applied to the general fund of the insol- vent estate ; or if there be a deficiency, that such deficiency rank as a general credit against the same estate, (Signed) f. PoRpEs, C J, Jtmuarjf 'Jth, In the n^atter of Dalton & Rvan's i^nsolvency. Oi _ 'N this d^, Mr. John Ryan^ on the part of Messrs. Timothy Ryan, Patrick Morris, Thonuu Meagherjtm. and Jamts Mortimer. trustees to the said estate, produced in Court a stateinent of the claims against the S amft- aa #hov onnAa.. K«> «k_ i 1.- .^^i. . Januaiy 9lh, A ratabb^^lg^ tribulioa among «li III* eraditun, without ihe letst preference lo any class of them, or- dered by the Court, in a case where ihe insolvents were proved Ic be genc' rai thopkefper$t 60 1818. In Iht mittar of Dalton & U». AN'8 InaolTcocv. CASES IN THE gUPRBME COURT, iniolvents ; and prayed mat the Court would take the same into consideration, and order the said trustees to make a distribu^ tion of the realised funds belonging to the sold estate, to be made according to Jaw, to the several claimants thereon, without delay, agreeably to the said statement. The Couri having taken the same into consideration, and having ascertained that JJalton if Mt^an were general shopkeepers^ without any immediate or particular con- nection with the fishery, ordered, that the trustees to the sa'd estate should nroceed to make a dividend of the funds which have been realised, ratably, amongst the creditors of the said estate, in conformity with the decision of the Court in the cases of Cm- nmgham. Bell ^ Co, and Hunters & Co, against the trustees of Crawford & Co, Against which order, Mt. Robert Job, as the attorney oi John & Robert Gladstone, of l^iverpool, En-Jnnd, gave notice of an ap- peal to Hh ajesty in council; on the ground, thai n.-y considered their claim en- titled to priority, as being a current 5ii«»/v, m pursuance of the 49th of the King, c. 27. Mxparte, Graham Little in the matter of JtMmny i4#A. DooLiNG & Kelly's Insolvency. J^tS^ 3??R CoBUM. This is .„ application i.> to lb* provisions of *"® l^ourt, at the prayer of Graham Little. •■ act of Parlit- f Order the distribution of the effects of the meot, Is dio(«. insolvents, Dooling & Kelly, agreeably to mefToid. lav. The Court has already decided that the petitioner is a creditor of that estate, and with a view of ascertaining the extent of his claim, ordered the production of the accounts of the estate, and the proceedings RT, be Court ition, and distribu- ing to the iaw, to »ut delay, ame into ined that pkeeperst liar con- that the proceed lich have creditors wilh the IS of Cu" s & Co, 1 & Co. Jobf as ^stonCt of an ap- on the laimen- supply, , c. 27. atter of ition to Lillle. I of the biy to id that estate, extent of the idiogs NBWFOUNOLAND. <>f the trustees in the business of distributin'* it. " It appears that, soon after the insolrencv, a general meeting of the creditors was cal!- ed, at which it was resolved, amongst otiier thmgs, that the stock in trade of the insol- vuits should be divided into lots of ten pounds value, to be ascertained agreeably to the cost of the articles, as stated in the stock-book ot the insolvents, and distributed amongst the creditors for the current year of the msolvency by ballot, so as to make a dividend, as nearly as might be, often shillings m the pound. This extraordinary dividend was accordingly made; and the trustees, with a ^reat deal of diligence it must be admitted, proceeded to realize the remaining effects of DooHng & Kellu ; and by the 1st January following were prepared tor a final distribution. They accordin-lv called a second meeting of the creditors.^at which It was resolved, that as all the current creoitors had not received at the rate of ten shillings in the pound, such as had not should receive a special dividend of five shtlhngs tn money, which was deemed equal to ten shillmgs mgoods, so as to place tliera upon a par with their co-creditors for the year 1815. And it was further resolved, that the demand of the petitioner should rank as a debt of 1814, but not as a current supplu or preferable claim. The residue of the undis. Jo oi^"^ ^^^""^^ ^^■^'^ «^'^*^ to amount to A3,340, and it was agreed to submit the proceedings of the meeting for the approba. tion of the Surrogate, In reviewing these proceedings, J cannot refram from observing, that they exhibit so extraordinary a departure, not only from /aw, but also from antecedent practice is »»!«»«> vacTO, luttt, « IS Qiffieuii to conceive 87 1818. Exparte, Graham Littli in the ivaUpr of Doolinq&Kkl* 88 Expartt, Graham Littli in III* caattsr oi DooLiNo.^ Kbl- Lt's Intulfency* ii CASES IN THB lUPREMt! COURT, liow they could linve been fallen into ; and certainly impossible for this Court to justify them. When the tmstces of Doolinff ^ Kelltf were appointed, they became ministerial offi^ cers of the Court. It was their duty to sell the estate and distribute it according to law; and if they felt any doubt, to have applied to the Court for further directions* But, in- stead of pursuing so plain a path of duty, they convened a general meetmg of the cre- ditors, and, under the sanction of a majority of voices, dispensed with the provisions of the law, and resolved away the rights of a creditor, standing upon a claim which one might have supposed peculiarly entitled to consideration— a claim to participate in those very goods which he had sold fo the insolvents, and which were the subject of his demand. It is stated that, under the altered circum- stances of the times, this mode of sale was most beneficial to the creditors. Perhaps it might have been ; but surely this was not a sufficient reason to justify the breaking through an act of Parliament. It appears that the remaining eflfects have been realized, and amount to the sum of ^3340. They are the effects of persons not in any manner engaged in the fisheries, but mere shopkeepers, and general retailers; and, as such, 1 shall in conformity with the late decision of the Court, direct the undis- tributed effects to be divided equally amongst all the creators, share and share a/tA:e— crediting such as have received shares in specie, with the amount of such shares, agreeably to the rate at which they were distributed by lot. I do not see how I can determine otherwise ; for it may be impose Bible, at this day. to ascertain the exact ya- ST, nto; and to justify if Kelhf terial offi-' ity to sell gto law; ipniied to Bnt, m* of duty, f the cre- mnjority f'isions of i{^bta of a 'hich one iititled to ipate in >ld lo the abject of I circnm- sale was Perhaps this was breaking ;ct8 have ! sum of sons not ries, but retailers ; with the le undis- equatly nd share id shares 1 shares, ey were »w I can e impos* XAQt va- NEWFOUNDLAND. ao liie of these shares, at the time they were divided. In the matter of Dooling & Kellv's Insolvency. 1818. Oi 'N this day, Simms, on the part of the trustees to the estate of Dooling ^ Kelly, gave notice of an appeal from the judgment of the Court, respecting the distribution of the remaining effects now in the hands of the trustees. Jn answer to which notice, Lilly, on the part of the creditors generally, contended that tlie trustees cannot prosecute, or enter, any appeal against the wish of the general creditors. The Chief Justice obBetved, that it seem- ed to him that the trustees, as such, could not, under these circumstances, appeal ; but that any creditors who felt themselves ag- grieved, or injured, by the decree, might db so. As the case, however, was new, he should give it further consideration ; and, in the meanwhile, would direct a stay of pro- ceedings, with an order that the time to be allowed for giving security to prosecute the appeal should be computed from the day on which he should deliver his final decision up- on this case, January l&ih. The right of tru(i< teei to appeal ,cono Irary lo ihe winh of one claas of creditors on an in< solvent estate, doubted by the court. pr»p«irty will rgnliaue"*! ilittriflk«f lb* vea> ilimg Am htttn .•d«a«««r*|ali«Nr lo the quantities of the casks. .And he has. produced a certificate, stating the f|uantitjeft as be received them, and ac- condingio. which,: be must [be supposed to have re-sold them to defendants. But this argument is certainly not tenable. What- ever the quantities might have been, as be- tween the plaintiff and his vendor, they are not necessarily alike as between the plaintiff' and the defendants. It is impossible to admit this as an argument ; and, besides, the certificate produced merely shows the gross quantity of nine casks, one of which had been sold to another purchaser; and. Rti KOIVVi he sum of e defence ia the de- le to the oins that only a ?ered to short to I casks. » stating and ac- Dsed to But this What- , as be- hey are plaintiff iible to resides, •ws the ' which r; and» » I I /us uuu NKWFOlTNDLANtK. mot been so gua«?ed, as to be exactly ascer- tained. The plaintiH's own witness alHo states that he was directed to guuge the molasscH before he delivered it ; so that alt had not been done^ on tlie part of the seller^ which ought to have been uone» and, there* fore, 1 cannot distinguish this case from those of Hanson t. Meyer ^ 6 £aAt» 0t4> and Rugg V. MiMti, 11 £ast,2ia The plaintiff; in order to have fixed the liability of the defendants^ should bare guaged the casks, and sent notice thervof to the defendants, or sent a bill of parcels witb the price, which, being all that remained for him to do, would have relieted Mid from the risk, and thrown it npon the defendants. His allowing tlie motasses to remain in his store, was an act of accommodation, not on- usual in trade; but that cuxrumstance can- not be considered as a delivery to the de- fendants, in shorty the plauitiff had not done all which, by the contract, it was ne- cessary to do, and, therefore, ho cannol recove«,>— Judgment for defenda ^« John DAMBRtMi ogmnst John D^nscomb & Co. B »Y this actioo, Ae plamtxfT sought to charge the defendants witb a liability to pay for the repaurs of certain premises of which the defendants had been in possession as the assignees of a lease, but had parted with that possession some time before the action was commenced against iuem. Per Curtani.-— There is no point of law clearer than that the assignee of a lease is liable for the covenants contained in the leas^ no ipoger ihaa he continues in the Tai& Uehdcbson Bao«N. Boiua Jammnf 19th, ThetwigoOTtof • leas* •!» ctnly liabk »o loog as th«y cotttiBOfr m poue$$iom of the demised prentispa, rSeeaseasibleiHile by Iba lata Proftf aorCbriitiaD,ialiia aditioa ef Black, atooe'a ConuoeiiU •ries, Tol.2. p.327, upon tha qucitinA railed in this caM.| 02 CASES IN THE SUPREME COURT, 1818. Dambrill V. If' ': possession of the lease. Mc is a constructivo tenant of the landlord, by the fact of pos- session ; and dnriii}? the continuance of that DuNscoMB&Co. possession, he is liable for the rent, as well as running covenants. But as he is only liable for possession, so with possession he loses his^liability. The plaintiff's own witness has proved, that a few months before the defendant as- signed his interest, the house was in good order. The presumption may be, that the short interval of time, during which the house remained unoccupied, would not al- low of the great dilapidations which are now said to exist. Indeed, it has been said by the plaintiff's wife, several times, in Court, that it was the assignees of the defendant, who did the in- junr. In point of fact, therefore, the plain- tin has not been able to prove that there was any breach of covenant during the period the defendant held the premises ; and the presumption is not strong enough— or rather the fact that the assignees of the defendant did the mischief, will not entitle the plaintiff to a judgment. There was a misapprehension of the law by the plaintiff, who should have received the keys when they were offered him. On every ground, therefore, the defendant ia entitled to a judgment in his favour. i structivo t of po8- Q of that well only ssion he as IM proved, idaiit a8> in good that the lich the I not al- bich are laintiff's : was the I the in- le plain- here was 9 period ind the or rather ^fendant plaintiff the law 'eceived m. Oq idant ia NEWFOUNDLAND. James Murphy, appellant, and Samuel Kouom, respondent. HIS was an appeal from a judgment given in the Surrogate Court. The reHpond- ent had instituted an action there u.i^Hlnst the appellant, for uttering and circulatiog certain false and scandalous words, tending to injure the character of the respondent, and had laid his damages at £2,000. The case was submitted to a special jury, who gave the plaintiff below a verdict for two hundred pounds; and a judgment for that sum was afterwards entered in his favour. After hearing the parties at considerable length, the Court reversed the judgment of the Surrogate Court ; as it appeared that the appellant had disclosed to the respond- ent the names of the persons whom he had heard utter the words spoken, previously to the commencement of the action.* * In the record of this case, the ground for reverting Uie Judgmontof the Court beluw, is cert«inly slated, as in the forego! ', ifort, to be, that ibe defepdanl beluw liad Uis« closed :m name of the author of the slander lo the plain, tiff before tkt aetiam tetu brought ; but 1 very much doubt thia being a true statement oi the facts upo'n which Mr. Forbea rested his decision ; as I apprehend that the plain- tiff had a Bu£Boient cause of action, unless the defendant named th« author of tha slander ot the very moment he re-> peated U, I am awart, indeed, that this point has never received a dire^ adjmiKeatum in Westminster Hall, as it has never been directly raised in any of the cases that hava been argued there ; but in Lord Nwthampton'a case (12 Rep. 234) it is expressly said, that " if J. 8. publish tb^ " ho halh heard J. W. say that J. C. was a Ihief, apd the truth be so, be may justify." And the reason assinned is, that tha author named may be in such low estimation that J. C. might have suffered no injury from his slander. Now this reason clearly does not apply when the name of the aolhor of the slander ie disclosed at a period $ubte- quemt to the publieatum, but pnor fo the commencement oj the action; because in that case ii has, (ota lime, been ua The diflcloiura of liiQ iiBiiie uf iho rnginal nuiliur of n MliiiKlrroiiH rc|iort prfoiovniy to Iho commcntrment uf tlie acliiiu, held to bu a bar lo tha aame. 04 A principal rc« ■iding abroad l» not litblo lo pay for tb« board and lodginf of bia ■leot in tbiscoun* tr^, vnliis he pro. luiatt or under* Ukca to do sob CAIEf in Till SUPREME COl'DT, Jamei Smithfrs & Co. uirainst Thomas Williams & Co. HE only ouestion io issue bcttrccn tlio parties was. whether llie plaintiffs were lia- ble to pay lor the board and lodging of their agent; the defendants having charged them «*>r the same, and retained a large sfim of naonev in their hands on that account. A • jury found, specially. " that James ISmithers jun, as agent to James iSmWters A- Co..]oascd and boarded at the expense of Thcmas W^i/Z/Oin* 4. Co., from the 19th Jan., 1813, to the 26th July following ; and that thi charge of four guineas per week for that time was not an exorbitant charge ;'*. and after having heard both parties upon tbe effect of this verdict, each party con- tending that the judgment ought to be in their favour. The Chief Justice said : The verdict ha- ving been special, turned the case upon one mam point, viz.. Is a principal, who sends •irea1.t«d m tU credit of th, defends, ..d mw ibM haTo produoad if iba disclosura bad b«ea made ai tb. in«ly. .1 la a..um«l by Scarhit, a^Juendo, i. W^kr, EUmbmough^nA Mr. Jaetica JU Blaii, thai " m ofdaTlo enable a defendaat to ju.iify elanderoa. word.. uLm beerjay, be m«.t dl«,loM it the time o/SSL'X i?i^ ••'• -me of , be pereo. from wbo^be CS it/' It i».y be material lo add^, tbat ib^ •baefralioM aVa confined 10 ore/ alaader; a.d Ibat il i« .Si .r«ZlI3 qa..tionwbelb.f a defendant caD. by ba»n. a^S II original autbar at lb. lima of pTblicJioS? ju'e'tifJX pi^ (3 JSa«t, 420). They era evidenyv not acta ehud^ S« A!*'i ••""•'ir^'y. «>••« •taWi.bed in r4ar^ S lerrj™. r'"^ ** 'I* ^•"'."" »' •°°'« ^niiaeSili^r r» lIOMAt Ten the I'ere lia- of their 'U them sum of int. A mithera lodged Thomas , 1813, liat the )r that ; "' anc| upon y con- 9 be in ict ha- on one sends my ibM ould not » a( tb« •ecord* *lMtk r. order t» !■• upo* % ' 'n Wewfound^ T* J ''r"^ ''*"* ^^^"^ "«^'"'nf? '" the shape of probf of any guarantee or express pro- mise by the plaintiffs to pay the defendants tiny private expenses which their agent might incur. The case, then, is resolved hito this simple question;— is a principal who employs an agent abroad to transact his bu- siness, generally, liable for the mere per* sonal and private expenses of such apent without any promise to iU person with whom they were contracted to pay them' I must own I never heard of such a principle before. The law of England is the law of Newfoundland ; and I cannot sanction such a departure from it, in a country where so much business is conducted by agents, I shall, therefore, give the plaintiffs a judgment for i^lll 12*., which is the sum charged by defendants for the board and lodging of thfl agent: •■"- * ' " -- - - 05 i8ia Smith IMA: Co. V Williams & Cot special jury. allow the costs of a 96 CASES IN THE SUPREME COURT, 1018. Against which judgment, the defendant* gave notice of an appeal to his Majesty in CounciK January 23(/. Thn Court will not set aside a deed made in conformity with the interprela' lion whieh ihn Courts had given ID an Act of Par* iiament, allhongh that construction appears to ba er« rouious. in the matter of trust of Godfrey's Estate. ^^FFER having heard ttie several parties, viz., the trustees under the deed of trust, the petitioners for the distribution under such deed, and John Ryan on behalf of certain English creditors (not parties to the deed). The Chief Justice observed, that the deed appeared to have been executed at a time when all the parlies to it were supposed to have preferable claims ; and that, therefore, as the Court had refused to re -open accounts settled, or payments made under such in- terpretation of the law by the Courts, he did not feel himself at liberty to set it aside. It was a conveyance to trustees for the cur- rent creditors; and the deed conveyed the beneacial right to the properly assigned ni as full a manner as it was then possible io tlo. "the right was conveyed, although it was to be enjoyed hereafter, and this case is like one of an actual distribution, which the Court has refused to disturb, until the decision of the King in Council can be had. Note.— In the above case the effects of Godfrey were actually delivered over to the power aod disposal of the trustees, and were oonaequently sold for the benefit o( the trust. Janmr]j2UK Stuart & Rennie against David Walsh. The circumstances attending this case, counteracting the , ,j^^ jjp,«nrtant nnestions arislne OUt of ?6a'g.°o.3:o.!.;! ihe fiicts oFil. Vre'distiBctiy stated, and A fishery may be carried on upon $har€s, without counteracting Ibe aT, 'fendantd ajesty in 8 Estate. .1 parties, trust, the der sucli f certain e deed), the deed at a time 3|)08ed to therefore, . accounts r such in- ourts, he t it aside. r the cnr- I'eyed the signed in ossible to though it this case on, "which , until the n be had. »r QODFRBY lod dispoial »r the benefit 3 Walsh, this case, ine out of ;ated, and NEWFOUNDLANDi 0f 1818. MS V. Walsb, carefully investigated, in the following judg- ment:— ' Per Curiam. This is an action brought Stuarts dcRsir- by the plaintifis, the suppliers of a voyage to the Labrador, against the defendant, under the following circumstances: — In the spring of last year the defendant was out of em- ployment, and two persons, named Merri' gan and Jarvisi applied to the plaintiffs to advance them supplies for an intended voy- age to the Labrador, and were refused.-^ These men nplied to other persons for em- ployment, o.d, beingrefused, again returned to plaintiffs, who agreed to supply them, but on one express condition— that they should ship their servants upon shares, and not for wages. This was agreed to; and the de- fend ant was engaged by Merrigan ^ Jarvis, and signed a shipping paper by which he was to receive "the sum of twenty^one "pounds, if the voyage would afford it;'* but it was understood that the supplies taken from Stuarts 4* Rennie, with freight, fcc; were to be paid Jirst. The voyage was un- productive, and fell short of the supplies furnished in nearly the sum of one hundred pounds. The first question which presents Itself is—whether this agreement between Merrigan^r Jarvis and the defendant be net contrary to law ? and, consequently^ whether the plaintiffs can recover in an action evi- dently founded upon such an agreement ? By the 15th of the King, every person who employs any fisherman for the purposes of the fishery in Newfoundland, must enter in- to a written agreement with him, stating the wages he is to receive and the term he is to serve. But the evils complained of in the act, and the remedy which this provision wording of the clause of the act, do not en* o CASE* IN THE SUPREME COURT, 1818. Stuarts & H^pim MIB V Walsu. U able this Court to pronounce broadly tliat no other contract can subsist in the fishery than that mentioned and regulated by the act. it is notorious that a great part of the fishery in this island is carried on upon shares, or, in other cision for an enactment, and remedy the want of ^ law ; and it must be determined, upon the threshold of this case, whether or not theire can be a fishery voyage upon shares. I shall hold that a fishery may be carried on U(>on shares, without contravening the provisions of the 16th of the King, although a great part of the act is evidently impracti- cable and obsolete. The next question which arises is, how far the defendant is liable to the plaintiffs under the express terms of his undertaking? The plaintiffs contend he is liable to the fnU extent of the proceeds of the voyage, until all the supplies are paid ; but the de 4 fendant maintains that he is only liable for the supplies immediately furnished to him- self. The account produced is, by name, agamat Merri^an ^ Jarvis, as the planters or masters ; but many articles appear to have been supplied for purposes independ- cnt of, or not inseparably connected with, the voyage of which the defendant was a shareman. Such articles must be abstract- ed from the account ; and for the supplies actually furnished, and the expenses actual- 1/ cotttracted, ioi the particular voyage of k RT, ladly that lie Hslipry ed by the •art of the on upon tumber of are to re- in lieu of ml ate the re to pro- ill, it is e interfe- :ute a de- nied y the ;ermined, hether or ige upon »e carried ening the although impracti- s is, how plaintiffs ertaking? ble to the t voyage, it the de < liable for io him- by name, planters ppear to idepend- ted with, int was a abstract- supplies 8 actual- oyage of 1 NBWFOtrNDLANO. last summer, and no other, the defendant is liable to the extent of his interest in the proceeds of the voyage. 09 1818. IVIartin Titzgerald against George Lilly. Jatiuttty 9lit, I eiprtM AgtM* n«ut. Jl HE extent of the defendant's liability, AiuratyMODot under a guarantee given by him for the pav- J? *•'■'«•'* •»•>••><* ment of rent bv a tenant of the plaintiff. »"• "p"" •■'••- formed the only point in dispute between the parties in this case : the plaintiff contend- ing that the security was general far whate- ver rent might become due during the existence of the term ; and the defendant insisting that it was strictly confined to the rent ofthepre-^ misesfor one year. The Chitf Justice SBidf that as the guaran- tee, which was given before the date of the lease, contained a promise to pay rent, and not rents; and as there was nothing in it which referred to the tease in question, either by word or circumstance, he could not con- sider it as guaranteeing more than 9l yearns rent. That the covenant for re-entry, m de^ fault of the payment of a year's rent, mate- rially strengthened this construction ; as the defendant might have founded upon this clause an expectation that he could not be responsible for more than one year's rent. — That a surety cannot be charged beyond his express agreement ; and that it would be giving improper encouragement to that loose and slovenly manner of doing business with which this transaction had evidently been conducted, to extend this guarantee one iota beyond its precise words. Judgknent/>ro defendenU, ^ ,-™.-sswv*^^.?-^ loe CASES IN THE 8UPBEME COURT, If two firms, eoDsiitiogr entirely of the $ame metn* bere, carry on ai nStaJ unotte. '~ ~'^ -XM%Jy,HlMlfe^,«, i Hl L IXVimtJtt m ya:^ 102 1818. la apiMal, in th* iDaU«rofCRAW< FORD & Co'i. IniolrtMjt CASES IN THE SUPREME COURT, 1>laced within it? This is certainlv a very arge— a splendid proposition. But regarded as a rule of international justice, it may be allowable to say intentata nitet; for it is still in its infancy, guarded by cautious qualiacations, and untried in all its remote and possible consequences. IVhat those consequences might be, as applied to this country, where a peculiar law of distribu- tion prevails, is rather a matter of specula- tive, than an essential, inquiry at present. But it would not be difficult to frame a case fr0m the materials before the Court, and a ease of very probable occurrence, in which the application of the principle, in the gene- ral form contended for, would be attended with a degree of inconvenience, such as might call in question its very existence as a practicable rule of justice. Suppose, for instance, a person to have engaged exten- sively in the fisheries in this island, where he holds his stock, his counting-house, in short, the local habitation of his trade ; that in the course of years he acquires opulence ; and leaving his capital and concerns under the management of agents, retires to England, where he happens to embark in some inde- pendent speculations, which bring him with- m the pale of the bankrupt laws at home, and induce a failure in his engagements in this island. Shall the whole of those en- gagements, in all their various branches and intertex«.ures, be transferred to the adjust- ment of assignees, acting under the direc- tion of authorities sitting on the other side of the Atlantic, at a distance from the place where the engageinents were contracted, where the body of creditors are resident, and from which all the evidence in the case of dispute must be drawn ? Or should the BuOrief course be adopted, of proceeding .,me at at. of the joWy for Iter, the true, in- :omniis' lie prac- ect that itice can ;s to be be same :ommis« ed that, * has an e whole tion of a and the It prac- ariation in argu- eparate irisdic- NEWFOUNDLAND, 105 lion of the chancellor does not ordinarily 1818. run. For how can it he reconciled with v^n^-.^-,*^ convenience and economy, to require the body In tppetl. in the of creditoi-s in this island to send their debts n"»"e'of Cbaw- to Scotland, to bo proved under the seques- T"? * ^'''•* tration there ? But there still remains ano- ^"'"^'"••"'y- ther great objection, which, in the absence of every other, would, 1 conceive, be con- clusive in the present case. The law of in- solvency in this island is peculiar to it, and the course of distribution different from that in Scotland. By the 49th of the King, (/) there are certain preferences of pay- ment to particular creditors here, which are unknown there ; and, although it in not pre- sumable that the legal rights of creditors would be less respected in Scotland, yet, as a matter ol mere policy, it is surely desirable that property, subject to distribution in con- formity with a particular law, should be ad- justed at the place where that law prevails; for the law of the place, necessarily enters mto all contracts between parties, and forme an implied and operative part of all their dealings. Upon the maturesc consideration, therefore, which I have been able to give this important subject, I am of opinion that the declaration of insolvency in this island must be sustained ; and that the separate creditors of the house of Crawford ^ Co, must be first paid out of the separate estate of that partnership, between which, and the house of JohH Crawford & Co. it will be necessary to state an account, and on which- ever side the balance appears, such balance must stand as a credit, and be proved as a ratable demand C^^, »i!toi;»» ..« Having disposed of the |)ma>/c of the >i M . (/) Ch. il. and iM 1 Hea. 'sT'iafc* kSilr (Sf) Cxpto. Jobni Cook, B. L. 63^. ' *I P Ml la 100 CASES IN THE SUPREME COURt) m i^ A 1810. case, I shall proceed to examine the claims '' *■■' * ■ ' ' of the Scotch creditors, according to tho U appe.!, in tb« order hi which they are made. The first ot' toTd&m\ *^®*'® *^^^>*^» " ^^^^ of Jean Crawford, wlio loMlrMMj. ' FORD & €»*•« Stated. From the affidavit in support oftho 1818. claim, it would appear to have been em- ployed in the general trade which the tes- tator had carried on, in partnership with his three sons, and which was continued by , . them, under the same firms, as during tlie '^•■«y«i life of their father. However, it forms the basis upon which tlie present claim is made by Mrs. Crawford^ on behalf of her hus- band's estate. It might be sufficient for me to say that the claim cannot be supported by the evidence before the Court, because it is not proved that any part of the monies re- ceived by the Crawfords^ in their character as executors, was employed in the esta- blishment in this island. But there are certain circumstances which, it appears to me, would tend to destroy the claim under any form. In the first place, the Crawfords, vrho have been declared insolvent, have a reversionary interest in the very sum which is now sought to be recovered ; and it re- mains to be shown how far Mrs. Crawford, as executrix of tlie will of her deceased husband, having suffered his property to be employed in trade, has not made herself a partner, and become liable to the full extent of any interests she may derive under the will (h). If such be the case, it would seem equitable that any sums of money which have been received by the representatives of the late JoAn Crawford^ to the prejudice of the rights of the other children claiming un-^ der his will, should be considered in the na- ture of private debts, and liable to be satis- fied, in the first place, out of their separate property and reversionary interests. But it is not for the Court to wander in pursuit of a subject which is not before it, and in (A) 1 Mtul. and Sel. 4ia loe 181B. la appeal, in th« nattrrof Craw> roBO fit Cq'b. luMlrMoy, CA8ES IN THE SUPREME COURT, which, from the absence of facts, it is expo- sed to error. It is sufficient to delermins that the claim of Mrs. Crmvjord, as at pre- sent brought, cannot be sustained : and t!ie decision of the ^Surrogates must, therefore, be affirmed. The claims of the other Scof/h creditors, taken collectively, amount :u the sum of £07,459 ; they rest upon one and the same ground, and may all be resolved into a simple question of fact, — are they creditors of Crawford 8c Co. of Newfoundland? By their own showing the credit they gave was to the house of John Crawford & Co. of Port Glasgow; and as the latter is considered in the light of a distinct firm, it follows that these claims must also be rejected. I ob- •erve that the Surrogates admitted the first four accounts, as set forth in the transcript of their proceedings ; but upon what ground of distinction, does not appear. It is stated, however, that ii: was m consequence of those particular claimants having been able to trace the goods whi(;h were sold to tho house at home, to the possession of the house m this island. But 1 cannot agree that any substantial c^*' tin'^tion can be founded upon thatcircumsnaiirv. As soon a* thft gooiia were delivered, i< > ame the property of the -vendees, and were mixed up intheundistin- guishable mass of their effects ; so that had an insolvency immediately followed, the Tenders would not have stood upon abetter footing than the generality of the creditors. But if m this case they should be allowed to come here and claim for goods delivered to a distinct concern, between which and the house in St. John's there are mutual ac- counts, the consequence must be that the amount claimed, instead of being a credit in favouf of the house at home, becomes the r. is expo- }tennina 8 at prc- and t!ie etc 10, be reditors, sum of he same a simple itors of By their i was to of Port dered in )ws that . I ob< the first anscript I ground 9 stated, ence of een able d to tho be house that any ed upon »iiaivere y of the ndistin* hat had Bd, the a better editors. )wed to 'ercd to and the lal ac- hat the redit in Des the MEWFOUNDLAMO* SM In app**!, iu the maiturof Craw. credit of the individual, and, of course, al- 1818. tcrs the state of accounts between fhe two firms, and is attended with tlie efiei i. of gi- ving a preference to particular creditors, contrary to every principle of the bankrupt f®" * laws. 1 must, therefore, reverse that part ""»""'y' of the decision of the Surrogates which ad- . niits the claims of these particular creditors, 1 1 with the exception of Lawries\ which was originally a direct credit to the house in JSewJoundland ; but in consequenc ^ of what has been stated, and with the appt arance of truth, that Lawrie was referred by ti. at house to John Crawford & Co. for pr 7m( nt, and j agreed to his demand being placei. to his credit in the books of that firm, 1 n.ust let this demand lie over until that fact an be ascertained, it may be necessary tu add, that this estate must be divided in conformi- ty with the course lately determined by this Court, and not according to the old i uer- pretatiou of current supplies. From which judgment, or decree, Sk ms, for the claimants, gave notice of an ap( jhI to his Msgesty in Council; and (on boiial of the several claims of William Bennett as trustee under the Scotchsequestration; W il- ]iam Bennett & Co. for money lent Willi: m Bennett & Co. for premiums of insurance ; Joseph Marry at £p Son, and Jean Crawford) entered into security for) the due prose- tion of said appeals within the time pre* Icribed by law. 110 1818. FednuayOtk, Time allowed to M abNnt dtfend* ant to appear; and theialeof a?es8el belonging to bim, wbieh was bold by attachment under the prooces of iba Court, directed to take place immedi* ately, for tbepar< pose of preventing the deterioration of the property. CASES IN THE SUPREME COUBT, Henry Simms against Francis Hoddern. Tj HIS action was brought to recover the sum of £181 17«. 4d. ; and property of the defendant had been attached, but there had not been any service of the writ upon him, as he was absent from the island. The cir- cumstances of the case were shortly these : The owner of the vessel called the Brilliant, being at St. John's, and requiring necessa- ries for the same, took them up upon hot- lomty, conditioned to pay the amount ad- vanced upon the return of the vessel from her then Intended fishing voyage. The ves- sel returned, but the money was not paid ; and it is now sought to recover it by thia action. Proof of these facts having been adduced, the Chief Justice said :-^ This vessel has been attached for a debt> which has been proved to be due by a bond which was given for the payment of it at a time long past. Enough has appeared to satisfy the Court that the vessel is exposed to loss and deterioration, and that it is ex- pedient to order her to be sold, as would be done by any other perishable property. The defendant must have a reasonable time to appear. In the mean time, let the property be sold, and the proceeds held sub. ject to further orders. NEWFOUNDLAND, , Trustees to the estate of John Hill & Co. appellants, and Henry 8hea, respondent* Ji HIS cause camo on in the Surrogate Court, on the 19th December, 1816, before the worshipful David Buchan^ Esq. and a special jury, to recover the sum of j£93 ster- ling, being the amount due for the purchase of a lot of ground by the defendant below, at public auction, being part of the estate otJohn Hill ^ Co., situated at Prince Ed* yard's Island ; and that Court having given judgment in favour of the defendant, agreea- bly to the verdict found by the jurv, the plaintiffs below appealed to this Court. Jt appeanng doubtful to the Court, from the transcript of the proceedings, what were the points at issue between the parties below, and whether the time for completing the conveyance according to the conditions of sale, had been waved at the trial, or had pone to the jury, and chese particulars being disputed between the parties, the Chief Jus- tice examined Nicholas Gill, one of the Jury who was present, upon the facts, and who stated that the time of delivering the title-deed had gone to the jury, and was considered in their verdict. Per CMriam.— This is an application to this Court, to review the verdict of a jurv, upon mattet's qffact, entirely within the'ir province. This 1 have already declared to be out of the power of the Court. Trial by jury is a constitutional right, ex- pressly extended to this island by an act of Parliament, and a jury here has co-exten- sive rights with a jury in England. How stood this case at the trial in *^A Surrogate Court? The plaintiffs c^l upon 111 The Coort will not rariflw lb« Ysrdiot of • Jury upon ntalteri of fact. 112 CASES IN THE SUPBEMfi COURT, 1818. TruBteai of John Hill & Co. V. Hbnby Shba. the defendant to pay for the purchase of certain lands at Prince Edward's Island. The defendant contends, that by the con- ditions of the sale, as exhibited at the time of sale, the vendors were to give a legal title on or before the 20th November, 1815 ; but that, in fact, they did not make out the title- deeds till near Christmas, and that the title was not legal. That, in short, they had not complied with theconefifeowiof sale, either in the time, or in the perfeciiijg of the title. This case went to the jury, who determined, by their general verdict, all they could de- termine—the fact of the time, and that the condition had not been complied with. The jury could not try the title, because that is a pure question odaw. But suppose 1 were to go into thib part of the case,and say that the title, when tendered, was good ; yet the defendant must have his judgment upon the fact, as found by the Jury, that it was not completed when it ought ta have been by the conditions of sale. That time was an ingredient in the trial below is, I think, apparent, not only from the explanation of the juror, but also from the course of proceeding ; as it was made a point in the defendant's case by the cross- examination of the plaintiff's witness as to the time when the deeds were prepared, and the purchasers required to complete the purchase.— The judgment of the Court be- low must, therefore, be affirmed. Ti MEWF0UNDLAK1>« Petition of Mr. Ryan. The memorial, in substance, stated,— that the petitioner had for many years car- ried on business, under the style of Ryan ^ Sans, at Liverpool and at Newfoundland; the first-mentioned branch of it being con- ducted by Joseph Ryan, one of the sons of the petitioner, and the other branch by the petitioner himself. That in consequence of the {protest and return of some bills which the petitioner had drawn, be consulted hit friends as to the measureshe ought to adopt; and by their advice a general meeting of his creditors was convened, and a statement of the affairs of the firm laid before them. — That at this meeting trustees were appointed, and MtyHenry Shea authorized, as agent, to dispose of the property, and collect the debts due to the concern, for the benefit of all the creditors. That at the same time that petitioner received the first intimation of the protest ^f his bills, he was informed by Joseph Ryan that he expected to be abl« to effect a compromise Hivitn the creditors in England, to whom he had felt himself justi- fied in holding out a prospect that the pro- perty in Newfoundland was more than suffi- cient, if not sacrificed by an untimely sale, to disdhti^ all the claims upon it in this couhti'y; That from the occurrence of se- veral unforeseen and calamitous events, the hopes enterUined by J, Ryan \vill be so far from being realized, that he will soon leam that the property here has not yielded, un- der the best management, enough to pay ten shillings in the pound upon the amount of the Newfoundland debts ; and that the t-iti ~.J UC^r. m^f. .>MA *k»a n1a«>Of1 in thft painfal predicament of having, though unin- o 113 1818. Ftbnuaryltht "Where there ara two braocbet of the lame firm, tbo one in England and the otbtr in Newfoundland, the property of tba firm in each counii tnr is, in the event of bankruptcy, or iniolvency, ezclu« aively divisible among the credit- ors who trusted the branch of tha firm established in that coaaliy in which the proper* ty is Bituated. lU 1818. CASES IN THK SUPREME COURT, '1! 'I ■' i'*(t r»!. I I., I ,1 iii;i!i.!||,.t ., » (!«h !.y . .f : . '■llUrCj '.I',*. ■ ■ ■ ,, ; iWl'l-t Uf(r :;; , . - ,., 'Uia/i'ir , v;j;; >»f ... «>■■/■' - I? ,. •. (t I«,il» a..!!., of 5iin™ .1 ^ '"•'"«'"0"» class df their ere. MWh order thereon Ji^.' *",'**'» «»fce .a.j^uStoXe.\VtS«t^^^- to think that the 3vL«,A^^/ ^'^'?»^d the k9U9e ij», But they looked to tJitt *Joj«i: 'A^'« V vH the ostensible stock ^nV ^«'«' «»d.t6 trade, for thefr serurit;''^ Wmnr Mtha^ % "Newfoundland creditors" I '^;j r all. criitora In &i &'*",'' ^ »d<»ds, "■■^it to the house of X*^ /"S'''""' -'-"■"'- '-^.i'/;iJ:/!, 5?:^';;;„: ■•■■?;j ;lfi^ • «i*,^»».-j>«w OURT, ^elusive ex- 6{ thpir cre- lulled intp a ^Prejqdicial er- then po^ ny business connected^ ?ir trade to * ^jl;i:eaitingi ;9sei^toit3 tidtoipafc© deeni .Jj^st mef^uitice TOorial ?— p m, inclined tbe,3Vew4 'S^nnpt I;>e atJQQs jbe-^, il9i49e id, ' I • NEWFOUNDLAND. >?e,,and.to y .h2 debt^without a »acrifice rf the S ^ which the debt was contmrtprt »5 • ■ Jond With the othrdS-ant'eS o "Ke cviatuce seemed. 115 1818. February IQth, A surely is dis.. charaed from bra Jiability to pay the debt of another. by the parly, to whom the debt is duo, giving lime to (Its principal debt- or witlioul ihe knowledge and concurrence of the surety. But in an action against both the principal and the surely, the Su- preme Court will give judnment for tU plaintiff against the prinoi|)al debt- or. f the in- d, might B would lis funds cannot iption is >nnc\^Ie iroof of did ex- OQunica- nd that uainted » tenns e Zord MBWrOITMDLAMD* 117 ton, (a) as applied to the case before me, that 1818. the givmg twelve months for payment, be- V,-»-.v^«i^ yond the period limited by the bond, has the Attwood & effect ofdischarging the surety. This may Hatnes be, and certainly is, a hard case upon the j.«« 'l „.„ good nature of the plaintiffs; but it would '^"^ L,L?r. ' ' be still harder if that good nature were to be exercised at the expense of the purety. I'erhaps, as a matter of personal feeling, it was too much to require the surety to press a proceeding against his own brother; it would have been better to urge the payment of f he debt at the time the bond became due. However, I cannot enter into any feelings upon the subject This case must be conformable, indecision, to every other: and as the facts bring it within the rule of law which discharges a surety by the credit- ors extending the time for payment without the privity of the surety, I must determine that George Lilly is discharged, but the plaintiffs must have their judgment against James Lilly in the sum sued for. * Against which judgment, so far as it re- leased the said George Lilly from the said bond, the plaintiffs gave notice of an appeal to his Majesty in Council ; and, within two days after, appeared and entered into the security required by law, for duly prosecu- ting the appeal. (a) t Vez. Jr. 642. • A« this ution WM on vmirwt, • Jadgmrat fn favour of on« of the defendants, and against the other, could not oerlainly hare been giren ln\ny Conrt of Law in u* "i* ""S* *•"• »»<">Iy <>•>• 'Mtweo, among amultitode. where tha Supreme Court of Newfoundland baa endea. ▼oured to administ^ justice secundum bonum bt f ??.?1' V^T P»J«« »•»• •"•l>««t regard to the rules wrtaWishedm the mother country, nspfeting i\»%Jorm of 118 J'^ebruary lOlh, The parties to a d««d, under which the ptoperiy of an individual is con- veyed lo trustees for the benefit of his creditors, can- not set up such deed as an act of insulvency. CASES IN THE lUPREMB COURt^ ^:rparte T.H Bft66KiNo and Others/ >n the matter of u lU Ghaham LiTTLfe's Insolvency.' ' ' * Per Curiam. This is an appliratlon to LtuJ .L i'^^V ^ri>.^ against Graharfi n.i!r * r "u. ^"^ *^^^'«'"® *'•»" insolvent ; in proof of whici a certain deed is exhibi ed. rlT*^^ ^/"/' «PP«^" to have conveyed away the whole of his real and personal es. ^te and effects to trastees, for the benefitof d rpri! i''""!* * ^" ^^"^Pliance with theact I clue from X.»///^, as well as a Schedule of bis property to be laid before the Court rand n certainly does appear that he is not in a pound!''" *' ^'^ '""'"'^ ''^'"'"«« '^ '^"^ fb^'ni'?^''® "^ pfevious question, whether are not'^Kr"*'' ?T^ P^"'^« *« *'^« ^eed, are not estopped from setting it up as an )VZf'''''^^ ^'""""^ knowlt principle of Jaw, that no person shall be heard to aver ^Ji""? his own deliberate deed. With respect to Mr. J^ittle himself, ie may be^yery immaterial whether his pro- perty is^to pass out of bis hands by a decla- ration of insolvency, or by the aLwment under the deed of trust; but wit^ fZ^J to the creditors, it is very material ; a^ therefore, I am under thenecessity of deter! mining upon the deed as a matter of Hi« §^!^TjS!2 between the .relitS!^"'^^^ dee4,; Zf^/e conveys the whole of his real *nd personal property and effecte to t^iS trustees, tobeseld aSd divided anwnTstto creditprs, according to the sttp^osed^^Shts' y/r t ' P'tb«a. . property, becomes, of course, completely WJ' """I" «^ ^pw wbatislii,reint!ie:^eeaio'Jifc^^ }t.„ .It^onveys the debtor's property to all Jns creditors, according to. wh^tT^a^s then r^cpi^ef aslaw; and be soVouv^ys it. w^th tb^jon^ent of all his creditors. - ^ ' , u.,*T^'V^ ^'^? provided rules for thf distri: butipn of insolvent estates : but it k nierelV in the cas^s where tl,e partl^3 dppot adopt Wt interfere with the policy of l^w. ^ ;^ ' : ♦p^i-^' *!!• ' "^^^ a// persons wlio ar^'in- terestedjn the property; for a *iW« dissen- iient creditor, whZis , no party to the deed yould be abl^ ta4efeat it. ' ^"^ «?^^': .lyow. the petitioners in this case are bar-' Ue8,to the deed; they executed it with their Taff^^h' ^^?*7"' >e too much for ma' to Mord them rehef against their own acts ' to t^e prejudice of rights which are con- veyed, and tq wHoh they c^onsqnted by deed,.,,;. ,, ,, ,. • . .. , , , ■ •' I sh^J, therefore, yhold the deed to i^ a good afl<^ valid convey wee, an4 leave it to the tw^ep^ to carry It iijto effect (a) ; at the same .^ime professing my readiness to afford (o)Seotlie>u«^ItedinftBote in th^2d T. R.§m. "*,'^aJhM»?ifs;i'*i*».'^*- 120 CASES IN THB gVPRBMB COUBT, 1818. Ftbnmji llfA, John Williams against Tua Willuamb anaOthcrs. ITndtr win T \f "hcin for •rcr/' IbeflldtstsMofA (who diM intM'> iatt)iinottntiUtd with •nd aiiun. by wbieb landed Jl HIS action Was brought tiominalW to properivisdafifed recover £l20, as rent of a certain dwelling- to "A and b«r house in St. John's. But the point which the plaintiff really sought to establish by it, was his exclusive right to the premises in question. The following is a short outline Jhu 1 "!"*'• I.**' <*^ **»« prindpal facts t f the case : — aou'lX bJt m«; , The maternal graiidf ither of the parties, abaraiiiocommoa •^o Monter, by his Will (which is admitted), -'■'*■ bis bfotbers among certain Other dispositions of his pro- perty in this island, gave his house, gardens, and appurtenances in St. John^s, to ** Mary Monier, his daughter, and her heirs for ever.'* Mary Monier afterwards intermarried with George WilHams, and by him bad several children, of whom the plaintiff is the eldest. George Williams and his wife Mary both died intestate, and the plaintiff claims the sole right to the premises, as heir at law, and under the express limitation of the de- Tise ; whilst the defendants contend, that real property in Newfoundland has sdways been neld to be mere chattels^ and iiot sub- ject to the English law qf inheritance. For the plaintiff, it was urged that, althOngti real property in Newfoundland is considered as chattels for the payment of debts; yet, un- der the laws of England, which arc; the la^.<« of Newfoundland,ybriA« imi|Mi««5 of succes- sion, it ought to be considered as real pro- per^. That by a bond intended to nave oeen given by John Monier, in contempla- tion of the marriage of his daughter, it ap- pears to have been the clear understanding of the family, that the property in question would descend to the plaintiff as A«trali^«;. That suppogiiig ihe custooi oi ibis islaad io I NSWrOUNDLAND. 121 » f I i he well founded, and universally understood, it must have been known to the testator. And that, therefore, by giving the property to the plaintifll'8 mother and her heirs for ever, the testator must have intended the word "heira** to operate as words of limita< tation to the eldest son of his daughter Mary. To these arguments the defendants answer, that the rules of real property as to succes- sion are not in force, and never have been re> cognized in this island ; and that, by an in- dorsement at the back of a certain deed, it appears that the mother of all the parties to this suit considered her property as equally divided amongst her children. Per Curtam^-^After diligent inquiries whe- ther any, and what, rules of descent have been followed by the Courts in this island^ 1 cannot find any record which throws the jqnost distant light upon the subject. 1 can- not, however, regard the silence of the Conr(s as entirely without expression ; and the inference that X should deduce from it is, that the law pf inheritable succession^ with it^ alluring rights and legal conopliGa- tions, has never been urged before the Courts of this island. However, as the question is npw before me, and I am called upon to determine it, I shall endeavour to trace my own yf^y through those first and general principles, which appear to afibrd the only safe conduct to aright decision of the case.* * It appaarg lohav* bteo Mr. Fffriet't intention to have inierted his whole JudgmenI upon this interesting esse in the record ; but, unforionstely, from some cause or oth«r, it was nevf r done ; and all thai can bo collected from the .record, in Uh present state* tbeneforef Uf that the judgmeat ^uninjavowrofthede/endants^ 1018. Williams V. Williams snd Otitera. 112 CASES IN THE lUFREME COURT, Undor tbe 40lii O#o. 111. 0. 27, tbeJuiiioesinSes- ■ions hare no ju- riBdiotion in catvs arising out of a da> mand for i/ait, wliere the demand exceeds forty shiU lines. [Such aju- risdjctioii is noir, ho w«fer, expressly conferred on them l)y Ibe 6tb Geo. lV.,c. 07, §.22,] IIuTTON, M'Lea & Co. against Dennis Kelly. "N motion, this day, to quash certain pro-^ ceedings which had taken place in t!ie Court of Sessions, it appeared that Butler ^ Grace, boat-keepers, and dealers of Hut' ion 6c Co.f had been supplied with caplin bait, last summer, by Keifi/, in payment of which they drew orders upon Hutton ^ Co., which were refused, upon the ground that the drawers had no authority to draw them. Kelfy afterwards brought his action in the Court of Sessions against Butler i^ Grace, for the amount of the debt; and having ob- tained a judgment, followed the proceeds of their voyage into the hands of the present plaintiffs, as the receivers of the voyage. It also appeared that an objection had been made, at the trial, to the jurisdiction of the Justices in Sessions ; which was over-ruled, upon the authority of a rule framed by a former Chief Justice, for their guidance, and expressly directing that the price of bait should be considered as wages, and rank as a preferable claim. The same objection was now urged before the Supreme Court ; and it was also contended, thai, admitting the case to be within the jurisdiction of the Court below, yet the present plaintiffs were not parties to any engagement between Butler jr Grace, and the defendant, Kelly. Per Curiam. The defect of jurisdiction in the Court of Sessions to try an action for money due for bail, i» so evident upon the face of the proceedings, that there can be little hesitation in determining the course to be pursued. But, perhaps, I owe it to the public to explain tbe reasons which com- pel me to depart from a rulef of of practice ) IT, ^EWFOU: ting a judicial power would have been con- trary to the constitution of a British Court* The only ground Upon which the rule con- tended for can be supported, is upon that clause of the Act which directs the ChieJ Justice to *^ settle forms qf process and rules of practice, for the conduct of suits and the dispatch of business in the Court of Sessions." But a rule oi practice is as essentially differ- ent from a rule of law, as form is from « be the ! ■ f KEWVOUNDbAND. > law upon the caS^. feait-money is not wa* ges ; and no power but the magic of Parli- ame7>t can make it so. All preferences of one creditor to another are contrary to the equal rules of justice, and in oppositidn to the very object and end of the bankrupt laws of all countries. 1 believe that the ex» tension of preferences in this island, beyond the letter of the Act, has arisen from a hu- mane disposition o^ the Courts to let in cre- ditors whose demands were of a strong kind, but which, by not being considered in the first order of preference would fre- quently be lost altogether ; and J am ready to do justice to the intentions of the Court; at the same time, I will freely state that, in my own apprehension, it was e'xercising a parti- cular lenity at the expense of that general beneficence which belongs to the law, as a system of even and regular justice. - While I sit in this Court I shall always re-^ gard preferences of payment amongst Cre- ditors with a jealous eye; and I feel assured that I am borne out by the intentions .of the legislature. Much of the erroneous interpretation of our Insolvent Act has arisen from a supposition that it is a peculiar law, both in its application to this island, and in the character of its provisions. To the latter I cannot assent. Our Insolvent Act is nothing more than the application of that part of the maritime law of Europe Which relates to ships and sailors to the fisheries, which, in their general features, bear a strong resemblance. For example, in the adjustment of the claims upon a ship, by the laws of Europe, the seamen have a right to be paid the full extent of their wages, while a plank of the vessel remains. Next in nrinritv nf rinim aro matoflnia nwtA «l.^«^ 125 1818. HuTTON, M'Lea &Co. V. K&LLTi 126 1818. Bottom. M'Lba A Co. V. Kellit. ^ \ CASES IN THE SUPREME COURtj who have furnished necessaries abroad, who clairri a preference amongst each other ac- cording to the recency of the date of their several bottomries ; and, lastly, all other creditors alike. What is this but the law o^ Newfoundland applied to llie product of a fishing voyage.jnstead of a ship-^to supplies for such voyage instead of necessaries for a foreign voyage, and to the last supplier in preference to the one preceding, instead of the last security of bottomree ? This appli- cation of the maritime law to the fisheries naturally suggested itself to the Courts at home, which used formerly to determine all causes which arose in this island. It was as naturally followed by the Court of Vice Admiralty, which afterwards entertained civii actions; and it remains to this hour the law of the island. Jn the case before the Court, I shall consider bait as a very neces- sary supply for the fishery, and, as such, it must rank with all other supplies. If there be a necessity for giving it ^^ higher claim, recourse must be jiad to P&rliament ; and, m the mean time, 1 should recommend bait- suppliers to have a previous understanding with the supplying merchant, before they part with their bait, and not to risk the un- certainty of coming upon them at the close of the season. ( >ad, who >ther ac- B of their all other le law 0^ duct of a supplies ries for a ppfier in istead of lis appli- fisheries ourts at 'mine all It was of Vice ertained bour the fore the y neces' such, it If there r claim, it; and, nd bait' tanding re they the un- le close NEWFOUNDLAND. in the matter of Dooling & KEttY's Insolvency. L) PON motion, it was this day ordered, with consent of the appellant from the late order, or decree, of the Court in this case. 4hat the creditors for the year 1815, who Had not received either goods or money, should receivfeat the rate of 55. in the pound out of the goods bought in by the trustees: and further, that the balance be remitted to ^nglandjor the purpose of being invested in the public securities, to abide the issue of the appeal. -^ And it was furtherintimated by the Court, that upon reconsidering the case of those creditors who had received goods in specie, at a supposed valuation, to the extent often shillings m the pound, upon the amount of their demands, if satisfactory proof could be brought that such goods, if sold at the time, would not have realized the value at which they vere received, it would cause the Court to make an alteration in the order of distri- bution; and the Court was the more anxious to set this matter right, as it had been made to appear that the principal creditor, Graham J^tttle, was present, and. indeed, a party to the resolution of the creditors, under which the division m goods was made. But as the matter was under appeal, the appeal had belter be suspended until such proofs could be brought m. On a subsequent day, certain proofs, by affidavits, being laid before the Court, that the goods which had been received in specie had not realized the amount at which they were valued ; and that the creditors were, generally, of the same opinion, inasmuch as " — "--vv.s,^ v» luciu uuu cojiseaieti io re- 127 1818. Februarijlith^ "Where some creditors had re- ceived a divideoJ and others bad not, the Court directed, with the concur- rence of the body of creditors, the payment of the same dividend to those creditors who bad not already re> celved it ; and or* dered the surplus of the insolvent estate, after the payment of such dividend, to be In- vested in the pub- lic securities in £ngland, %» abide tlie determination of an appeal then pending before the King iu Council. 128 CASES IN THE SUPREME COVRT. i8ia. Is the mttttcr of D00MNO& KbIi- duce them from the original valuation of IOju to 55 ; it was ordered by the Court, that the first order be altered, as follows : after the word •* lot," — unless the persons re- ceiving the same may be able to prove to the satisfaction of the trustees, (in case of difference to be determined by the Court,) that the goods have not actually realized^ or been worth, the sums at which they were valued, in which case, they must be taken at, or as nearly aa may be, the value they liave realized. \ • /■ / ftbrnary 20/i^« The person or> dtiing an insurance is liable for the premium; and the insurers ca^ sus' tain an action agftinst him. Attwood, Hunt, and Wilson*, a^ami^ Tr^stees of Samvel Kough & Co. ft J HE plaintifib had effected, by desire of the insolvents, an insurance on some pro- perty sent from this country to Ross, in Jreland ; and the payment of the premium was now resisted by the defendants, on the ground that the parties who were to receive the benefit of the insurance, were alone lia- ble fur the payment of the premium. This defence was, however, immediately rejected by the Chief Justice^ who, said : — The main ground of defence %o this ac-< lion is, that the plaintiffs, in insuring tHe Sbamrojck and eargo^ although they did it by the directions of the house A«re, yet they looked to the house at home for payment of the premium ; and that as it was to the £ng^ lish house that the proceeds of the insured property went, so the insurers should look to those proceeds for the premium advanced for their security. But it is impossible for the insures to follow the property for the purpose of recovering their claims for a pre- % tionof lOjb lourt,. that t follows : persons re- o prove to a case of he Court,) ' realized^ they were t be taken value they , against &Co. Y desire of some pro- Ross, in e premium its, on the to receive '. alone lia- am. This ly rejected io this ac-< isuring tKe hey did it ?i yet they ayment of \ the £ng-^ be insured lould look, advanced ossible for 'ty for the for a pre- NEWFOUNDLAND. the insurance, unless in a case of mere agen- cy, and even then they act upon tiie faith of the principal in reality, and may properly be said to look to the persons ordering the insurance—" Qui facit per ahum facit PER SB." Now there has not been a shadow of evi- dence to show that the plaintiffs looked ex- clusively to the partners in Ross to pay the premium. The letter which directed them to inform the house of the insurance being effected, might have gone farther, and desired they would draw for the premium ; but, even then, if the premium had not been paid, they might have come back upon the house here, as having ordered the insurance without a hint that the insurers were not to look to them for the premium. Looking at the letter by which the insurance was effect- ed by the plaintiffs, 1 cannot say that there is anything to discharge the house here from their Kability for the premium ; but, on the contrary, it is a general order, and the estate of the parlies who gave the order must be primarily liable lor the premium. Judgment for plaintiffs, £210 75. 6rf. (211 1010. f n the mutter of D00LIN6& Kel- ly's Insolvcucj* William Lego against M'Carthy & Banfield. JL he property which formed the subject of the present action, is a plantation at Car- bonear, and the dispute between the parties grew out of these circumstances : Henry Webber was in possession of the disputed plantation, and by his will, dated after the'deatli of B, arid pays'rent fo the reversioners, to a eonfirmatmn nf tho lanaa on, I ^«i., ...b^. • <». |S«e Woodfall'B T«naat»' Law, pp. 39 and 78.]] Febntary 28/A, 6, tenaDt for life, demises for years, and dies be« fore the expiration of the period men* tioned in the lease. The lessee conii* nues in possession This does not amount \i ]3Q [1816, Lbioo o It'CARTHY Si Sanfiblp. n s t. CASES IN THE SUPREME COURT, f in 1769, devised it io Frances Tucker, forlier life, and, after her death, to her three chil- dren and the survivors of them. Upon the death of Webber, Frances 7'ucker succeeded to the property, under his will; and by lease* dated in 1776, leased the same to Dr. Ferrers for the term of ten years, with ev singular clause, that upon the lessee's per- forniing certain conditions therein express- ed, respecting a part of the premises, he should, possess and enjoy the remainder «» hng as he or his assigns should think Jit, In 1787, Mrs. 7W*«- brought an action against Ferrers for holding over after the expiration of his term, and the Jury found, «• that the principal part of the property, aa leased, should be restored to tlie plaintiffs, and the remainder continue in possession of the defendants, subject to the payment of certain rents, and the performance of cer- tain conditions." Two of Mrs. Tucker^s children died in her life-time, and Mrs. TwAcr herself in 1 810, Her sole survi ving child, Henrr% continaed for some time after her death to receive a yearly rent of £7 10*, for the premises now in possession of the defendants, under a conveyance to them from Mr. Watts, the representative of the ^te Dr. Ferrers ; and in 1813 he, Henrv Tucker, sold the same to the plaintiff, who seeks, by this action, to eject the defendant from the possession thereof. Th^ Chief Justice oh»erved that two ques- tions had been raised, upon the foregoing facts : 1st, does the acceptance of rent by Henrif Tucker amount to a confirmation of his mother'slease to Dr. Ferrers ? And, 2dly, how far property adapted to fishing purposes can be considered liable to the laws of land- lord and tenaiit ? Upon the first point, he felt pRrfpoflv rnniirlonf and, therefore* what one does, and the other recognizes, must bind ; but here the interests are different and oppo- site, and, consequently, a different rule must prevail. The2d pomt, he added, could not properly be raised between subject and Subject, and could only arise between the crown claiming after the determination of a life interest, and a subject claiming through the person whose interest was protected by the statute. It was not, therefore, atpresent^ necessary for him to express his sentiments upon it, and he should give judgment for the plaintiff. 131 1818. Little o. M'Cahthy Panfiblo. The trustees of Graham Little against DuLrLAHANTY. J. HE questionhere raised was, whetherthe mortgagor, being permitted by the mortgagee to retain title deeds, does not inyj^Iidate ?he mortgage, as against abondJidepavcUaset ignorant of such mortgage ? Graham Little sella to Burmtt Rutfe^e, and Burrd Rutledge mortgages to XMile as a security for payment of purclias'e mo- ney, but obtains possession of title-deeds, and there is no mention of the mortgage in the bill of sale to JRutledge. Rutledge obtains a grant of other lands, and sells them, together with those pur- chased from C?. Little, to one Dullahanty, April ioM, The retontibn of title-deeds by tha mortgagor, with the consent of the mortgagee, will prevent the mort* gagee from setting up the morlKaga against a honajide purchaser for a valuable considera- tion, even though the mortgage tad been recorded la the Supreme ^ Court. But note, this was before the passing of the 6th 6flO«IlI.,c,67^ 132 1818. TriMjtees of G. LiTTLB o. DuLLAHANfr. '^ Igt .! t. CASES IN THE SUPREME COURf* M'lio is not nppiised of the mortgnffe, and pays a full consideration. These facts were not denied. But it was contended that the mortgage to Lillle was recorded in ifie Supreme Court, agreeably to a rule made by the Ibte Chief Justice TrtmletU Per Curiam, -h appears that, in April, 1814, JMtle sold a plantation called '• Ga- den's Marsh" to Rutledge, for the sum of x200, and regular deeds of conveyance were given, together with the title-deeds of J^tttle, to Rutledge-, but as the monev was not paid at the time of the sale, a mortgage was made on the same day by Rutledge to .iMtle, and recorded in he books of the Supreme Court. About a year after this transaction, Rutledge obtained a grant of raore land, and sold the whole premises to JJullahanty for £300, who paid the same unconscious of the mortgage to Little. The vendor, Graham Little, in parting with the title-deeds, at the time that he sold the plantation, and thus giving Rutledge the means of committing a fraud ly keeping out of sight any traces of a mortgage, would be precluded thereby from setting up his mortgage against a bondjide purchaser, igno- rant of the mortgage, and it must have the same effect against his assignees. The re- cording in this Court is not sufficiently founded on law, to enable me to make that circumstance the basis of a decision differ- ent from what is held in England upon cases similar to the present* ' gnge, and facts Mere d thai the ed in if^e rule made in April, ed " Ga- he sum of nveyance ■deeds of oney was mortgage ttledge to ks of the after this grant of emises to he same, tie. The with the sold the "dge the keeping e, would g up his ler, igno- have the The re- Bciently ake that n differ- d upon MEWFOUIfDLAND. 133 Colonel FiTZHERBKRT against Williams & Gill. Ti __ His action iat'oae out of some altehl- lions in the arrangements of the church, un»- der which the plaintiflThad been deprived of a pew he had formerly enjoyed as Com- mandant of the Garrison; and the nature of the plaintiffs right to the pew seems to be clearly defined and settled by the Chief Justice in the following judgment t — Per Curiam, At the first hearing of this cause, the Court expressed an opinion that . the officer in command of his Majesty's land forces in this island, had a right to a seat in the pew occupied by him, before the Removal of the organ into it, and not a mere courtesy at the hands of the churchwardens; and it entertained the hope that this opinion might have led to au amicable arrangement between the parties, and the appropriation of another pew less objectionable than the one which hanimand- •9 of the ij^^ht, and Gambier iment of irch; but |ue8tion, ■^ of the fr of the irst peWf ar ]802i ithin the listration Bar 1811, msidera- bscribed. i, a new aodatioa present lew was nothing being in ipied by proprie- erecting ilted the 1 it being 9t for the to direct 3 for the : singers church- UdloneI« n to re- ipon the adapted « NEWFOUNDLAND. to the station he filled, being prepared for him. It is to be lamented that something more definite had not been arranged be- tween the parties, and that. the pew which was intended for him had not been more particularly pointed out and approved at the time. The Colonel states that, in consider- ation of the sacrifice he had made, and the convenience which had been afforded the church, he was entitled to expect every libe- rality on the part of the proprietors, and their representatives, the church-wardens; and I do certainly agree with him in the Cropriety of that expectation. The pew» owever, which was taken in exchange, was given to the officers of the navy, and the one occupied by them transferred to the Colonel, a pew in sis^e something less than the one he had resigned, and subjected to sounds certainly not fty distance made more 9weet. Such is the state of facts before me, upon which 1 am called upon to delermine the right which is clsiimed. But there is a preliminary question : Is this Court compe- tent to determine such right ? As between the church-wardens and the colonel, had he been dispossessed by them of a seat belonging to the crown, I could have indemnified him for any disturbance ii^ the quiet enjoyment of possession. But in this case there has been an exchange between the governor, as representing the crown, and the church-wardens; by which exchange, the pew occupied by the colonel has passed to the general rights of the church, and the pew called the singing-gallery has been transferred to the crown; for I hold, that as all property in the church is in virtue of sub- scription, and as the crown has subscribed very liberally, the crowtt is as fully entitled to those parts of the chvrch which have 195 1818 riTZHERDBRT V. Williams & Gill. p I I ff 130 loia I'rrziiKRnERT t>. Williams & Gill, CASES IN THE SUPREME COURT, been successively occupied by his Majesty » servants as any individual can be to the pew which he occupies. Uut, independ- ently of tiie crown, no rij;ht can be claimed in the pews belonging to the crown ; they must be held like the assignment of barracks and other accommodations immediately afl'orded by the crown, at the discretion of His Majesty, and are entirely a matter of private arrangement by those under proper authority from him. Recommending the commanding officer and the officers to that source for relief, I m-jst determine against the present claim to an indemnity from the. cliurch- ward ens. . ■ ( r July 0th. Jno. Lynch against CATHEniNE Coughlan^ •• Actio non accrevit infra SEX ANNOS" \i a good j'lea in New- foundland to a debt due,on simple con- tract, more iliinsix years b(>(ore (he coDiniencenient of tti« action. Ti HE only interest which this case is ca- pable of exciting, arises from its being the Jirst on record in which Mr. Forbes held that the statute of limitations was a part of the law of England applicable to the circum- stances and condition of this island. In deciding it the Chief Justice said : The cause of this action being one to which the statute of limitations applies, in j)art, I must begin with limiting t/ie time foe which the demand for wages may be sustain- ed to six years from the time of serving out the writ. Of these six years eighteen months must be deducted (according to the agreement proved by the plaintiff's witness^ and confirmed by the defendant's witness,, viz., that plaintiff was to have his victuals, clothes, and boarding, in lieu of wages), leaving four years and a half to which, I think, under the evidence, he is entitled to wages, at the rate of f20 per annnm, liable UUT, s Majesty *a I be to the independ- be claimed own; they of barracks mmediately iscretion of a matter of ider proper ending the cers to that line against )[ from the. /OUGHLAN. :ase IS ca- i being the hrbes held I a part of he circuni' sland. In ng one to applies, in /le time foe be sustain- erving out I eighteen ling to the 's witness, s witness,. i victuals, f wages), which, I ntitled to ira, liable NEWFOUNDLAND. to deductions for such articles of clothing and other arlicles (except usual meat and tlnnk allowed to all servants about a house) as the plamtifl' has beea actually supplied with by the defendant, who must produce an account thereof, beginning in the spring ot 18I1J, and ending in the fall of I8I0I ami deliver a copy of the same to the plain- titt before the next court-day, unless the parties should previously come to an ar- rangement among themselves upon this point. *^ . 137 1818. tVNCH «. COUOHLAN, William Dawe against Peter Faddy & John Connell, J u ^^® action, which was for an assault and battery, a special jury returned Jhe foN lonng verdict : — . " Tlju dry find John ConneJl guilty of an asbuult and battery. Damages £5, with half costs of suit. '* Peter Faddy guilty of aiding and abet- ting an assault and battery. Damao-es ^ClO- with half costs of suit." * And the Court gave judgment accordinely against the defendants. ♦ ^^ in this case clmus atUntion on thrt* * Tbt T«rdtel grounds : 1st. Because the Jury have assessed several damaces lor a jouU trespass. * 2dly, Because ibey have found one of the defendanle guilty as a principal in tbe^tt, and iH other as only in the second', degree. And, 3(lly, Because tbey have given much higher damages against the principal in the second, than they have done •gainst the principal in the first, degree. • 7 '*•* "fPect to the first point, it was certainly holden tikLowfield V. Bancroft, 2 Stra. 910, and has ever since been admitted in Wesimiuster Hall to be good lavr, that where the defendantji nl chant, as agent to the landlord, is nut entitled to a pre- ferable claim in ibe 8?ent of the agent's insolvency. CASES IN THE SUPREME COURT, William Newman against Trustees of Tr EM LETT & Co. Ji HE circumstances of this case are suffi- ciently explained in the following judgment : Per Curiam. There is not evidence be- fore the Court to sustain the present action. It appears that Tremletts were the agents of the plaintiff, and received the rents upon his property in this island. That they received various sums in the year 1817, which they applied to the pur- poses of their trade ; and witness states that he intended to appropriate the balance of an account due to his house from that ofNeivman 4r Co- to the repayment of the sums he had so applied ; but that being pressed by the Ses- tsions for servants' wages, he drew the ba- lance out of Newman ^ Co's. hands, and appropriated it to the payment of wages. How can this be called an appropriation of a particular sum to the payment of the plain- tiff? The specific monies which he received for the plaintiff, he spent as soon as he received. He afterwards determined to JEipply a debt due himself, to the repayment the damages cannot be given feparaiehf againat tbem; yet »t a period not very long befoi^ the decision la Lowfield v. Bancroft, Lord King did take a verdict in a precisely pimilar case (that of Lane y. Santeloe, 1 Stra^?0), where the Jury gave sevqral damages ; and I think it will readily be admitted that the earlier decision furoishes a rule more applicable to the state of this country, and the course of proceedings in our Courts, than the latter one. On the second point it may be observed, that, though, technically speaking, there can be no accessory in tres- pass (Rex V. Jackson, 1 Lev. 124), yet tbtre may be a distinction between Ibe principals. And, on the last point, the verdict may be jastilied by the oobsideralion that it is perfectly consistent with natu- ral justice, that a rich man who aids and abets ao assault should be mulcted in higher damages than the poor mah who voiumils it at iiis instigation, or by iua command. JRT, ustees of e are suffi-> judj^ment: idence be^ lent action, e agents of ts upon las lums in the to the pur- states that lance of an ofNetaman ishehadso jy the Ses- •ew the ba- ^nds, and of wages, priation of if the plain- le received B soon as ^rmined to repayment Insttbem: yet n ia LowfieU in a precisely fad 79), where it will readily )• a rule more the course of ibat, Ihough, 'ssory in tres- kre may be a le justified by int withnaiuo ets an assauU ihe poor mab ommand. NEWFOUNDLAND. J>f the plaintitf. He dianged bis detemifha. lion before he had done so, and applied it otherwise. His insolvency followed some «ays after ; and at the date of the iusolven- cy, which IS the true time to which such s aaim for preference must always be referred, there was no appropriation of any monies, c:b ®r .security whatever, to the demand of the plamtifT. it IS hardly necessary to say, that rent received by a general merchant, in the ca- pacity of an agent for the landlord, forms in Itself no claim to priority of payment, and, unless particularly set apart, merges in the general mass of the insolvent's effects. 139 1618. Nbwman V, Trustees of Trbk< BtliTT & Co. John Sqv are against Matt. Morey & Co. J-iJJ^J^'^*" ^SJ.'«»^*> '•ecover the sum of xa,7 1 J ibs.Od, J he circumstances attend- lS?.*t^''® ^" particularly adverted to by the f^/uej Justice, who said :— This is an action to recover the amount of certam bills of exchange, which wer^ drawn by the defetidants in favour of Varioiis persons, m the years 1814 and 1815, and came, in the course of negotiation, to the hands of the plaintiff, by whom they were presented at the place appointed for pay- ment, and were refUsed; consequently, it falls upon the defendants to excuse them- selves from a liability apparent upon the face of the transaction. Two objections ar^ raade, one goes to the merits of the actioh. the other, if allowed, would stop it at the threshold of the Court. It has been stated that there isasurt pending in England for the same cause which is now before me If tuis >¥efe proved, i should certwnly consi* September 14/A. A and B are partners in trade ; Ihe first residing ia England, and the other in New* foundland. B drawls a number of bills, on partner- ship account, upon A, who accepts them, but after- wards refuses to pay them. With a knowledge oC A's intention to do so, and, in fact, aC his particular de- sire, C. purchases the bills, and then brings bis action in Newfouodland against A St B.— ' Held that he ia --^ivwitsSu to iScoyd? upon tbem. I\ ' i i . I 140 1818: Squarb V, JdOBBY & Co. 7o; CASES IN THE SUPREME COURt, rfer it as an abatement of the action : but the parties have had sufficient time, not only since this case was first brought before the Court, but smce the objection itself was raised, to have produced something in the «nape of proof, whether the suit said to b6 peiHlmg on the other side of the water is lor the same cause, and between the same parties, as the present,~in short, what that suit IS. To say merely that there is a suit between the parties, and to say no more, i4 -pleading historically." as Lord Hardwick expresses it, - without any averment or certamty which Courts of equity and laiv both require. ' 1 must, thereJore, dismiss this plea, although with reluctance ; for a^ the parties are all in England, it won? r^ . ^.fe^® ^«en more advisable to adi;.-i their difference there. The principal defence IS upon the merits of the case. And it is sufficiently brought to the notice of the , ""^.^y the evidence on the part of the plaintiff, who has travelled a little further than was necessary into detail, how he came to take up the bills in question, and why he c uM?"l**^ ^^^ ^^^^^^ **«••«• The holder ot a bill of exchange, is always presumed to have come fairly by it ; and where it was ongmaUy given for value, the want of con- sideration can hardly be averred by the drawer Against the holder; who, if the bill be dishonoured, has his choice of action agamst all or any of the parties, without assignmg his reasons for pursuing one of ^^^}?Vl^i^T^^ce to another. But, as the plaintiff has thought fit to enter into the pnvate history of his case, it is open to the defendants to take advantage of anything MThich may anse out of it, to defeat the ac- tion; and,certainly,it is a case very singular! v circumstanced, in wKi^K ««^rvf*u^ iLr_-y _. J _„ ,, „,^.„ vx*v VI MIC ucicuu* )URt, clion ; but ne, not only before the itself was bing in tlie L said to b<6 le water is n the same what that re is a suit 10 more, ii Hardwick erraent or ty and law e, dismiss 'e; for as it won' to aclj; : al defence And it is ce of the )art of the tie further w he came id why he le holder isumed to re it was t of- con- i by the f the bill of action I, without ig one of It, as the into the n to the anything the ac- ingularly ~ icfcud ■ NEWFOUNDLAND* hnls determines before-hand to protest bill^i for which he was, prima Jacie, liable as the partner of the drawer, and fixes this liability by accepting them ; and the plaintiff, with a full knowledge of this determination, comes forward, at his request, and takes them up, avowedly for the purpose of their being protested and sent back for recovery to this island. Such a transaction might be ftll very lawful and correct, but it is certainly Very suspicious ; and if it had rested here, I should have felt myself called upon to suspend the judgment of the Court, until the defendants should have an opportunity of proceeding by some course in the nature of a cross-bill, to probe the case to the bottom. But the circumstances set forth in the plain- tiffs affidavit, must have been sufficiently in the knowledge of the defendants^ to have enabled them to have put him to his answer ; or, at least, to have produced proof of the fraud which has been set up; and 1 cannot, at this late season of the year, leave the case jpen to such a proceed- ing, without throwing it into another year, and departing from the system of sum- mart/ Justice, which is particularly enjoined upon the Court by the act of Parliament under which it sits. I must, also, bear in mind, that the law (.5th Geo. II., chap. 7), which allows the affidavit of parties inte- rested in England to be evidence in the co- lonies, has, in this instance, furnished the personal testimony of the plaintiff directly negativing any presumption of his not being the real party to this action. He swears distinctly and expressly, that the sum de- manded on account of the bills, is justly due and owing to him ; and in this statement he is corroborated by the admission of the de- fendant, PrideauXf who goes on to affiriPi 141 ]818. Square MORBY & Co< 142 CASES IN THE SUPREME ^OIJRtj ^1 * V 1818. Square V. BIORBY & Co. that lie had no eflecls oi Matthew More^ ^ Vo. iA hm-hands, as it would seem, for some time before the date of the bills, and that he bad given positive orders to h's clerk id refuse any of their bills which might b^ presented for payment; and he did so> because he was desir take up ight law* ding one defraud ^e shape uppicion iffidavitsi iffidavit^ fffects iti the bills has not 'the de- j|t does defence ds; and ion, that Br of the Ige^ that 1 do not ■ . action, ct trans- fore the vour of landed ; they are ppeal to bled ta and to NEWFOUNDJLANi)* 143 1818 October \tt. Where ♦here are two leases of the same property, tliR trustees, i i case of Exparte William Haly, Esq. in the matter of Jambs Johnston's Insolvency. ffiUTCHJNGS leased certain ground to J nomas Williams, who underleased part thereof to one Johnston^, for a certain term ••— ^ -, -. of years, having a few months less to run '""'^'^^n'^y' "*a:- than miliamis own lease. '"•'*^ I" ''"^ "?'" "'"^ IT , 1 • .• , , . rorect the otlitr Hutchings died, and the ground leased to Wihtams devolved upon Colonel Hali/, who, by deed, covenanted to extend Johnston's term for ten years after the expiration of the lease to Williams; and Johnston also cove- nanted, during his lease from Williams, to erect certain buildings on the premises. Johnston is become insolvent, and I he trustees desire to dispose of the first lease to Johnston, but intend to give up the ex- tended lease, or rstiher lease oovenanted to be extended by Colonel Haly. Colonel Hulu prays that they may be obliged, to dispose of both together. Per Curiam. The trustees have a cleat- right of choosing whether they will take both of the insolvent's leases or not. Now, supposing they gave them up, Mr. Williams will be entitled to the residue of his term, free from any after-engagements of Johnston with Colonel Haly, The only question then is, can the trustees retain the first lease, and give up the second? 1 think they can ; for, in the first place, by so doing they may benefit the insolvent estate, and can- not place Colonel Haly in a worse condi- tion than he would be in were they to g. ve up the lease to Mr. Williams. But upon the general question, I think the assignee of the first term would not be liable to covenants reeiepvpr] with n nour no^i,. ;» ... new deed, and with reference to a mew ea- n i i. I 144 1818. JExparte, W. Haly, Esq. in (be matter ol J. Johnston's lusolveDoy. CASES IN THB SUPREME COURT, tate, not yet in being, and not even to comr mence, at the expiration of the first, for the residue of Mr. Williams's terra will intervene, and the property actually change masters before the new estate, upon which the covenant is reserved, is to take effect. 1 must, therefore, decide that the trustees may elect and dispose ot the one lease, dis^ charged from any covenant in the other. November IWA. A person who, since (be year 1685, has built and made a hoase, sir ges, and oth^r con» veiiiences for (he fishery, is entitled peaceably and quietly to eojoy the aAme. The King o^aiw«< Thomas Row. V ^ PON a full hearing of this cause, the Court g»ve the following judg«:aent :— This is a proceeding on the part of the crown, to abate a fence lately run by the de- fendant across a part of the water-side on the soiUh of this harbour, and claimed by him as private property ; butwhich, it is con- tended, is a public cove, or landing-place, and as such has been used, time out of mind, by all His Majesty's subjects, and particu- larly for his naval-yard. It is brought by the Crown, as the guardian of the rights of the community, and not as the sovereign claiming an exclusive property in the soiK I shall, therefore, abstain from entenng into the general question, as to what is real pro- perty in Newfoundland ; a question which has been carefully avoided by all my^prcde- cessors, and which 1 am not disposed to in- vite. Whatever may be the quantity or qua- lity of real estates in this island, it is certain that the statute of William authorises any subject to make a fishing establishment oa any part of the shore which had not, within a given period, been used by the fishing ships ; anv* quiCvty t,o 'ise &n_ eDjoj the same for his fishery. ' ' '^^ URT, NEWFOUNDLAND. U9 a to corn- first, for term will ly change )on whioti B effect.^ '\ le trustees lease, dis- oth'er. Row. :ause, the nt : — art of the by the de* ter-side on claimed by h, itiscon- iing-place, at of mind, id particu- brought by e rights of I sovereign n the soiK itering into is peal pro- ition which I my prede- losed to in- tity or qua- it is certain horises any lishment on had not, sed by the g and enioy i- The defendant rests his case principally upon this statute ; and if the facts of it bring him within the act, he certainly has a right to enclose the place which the law has exclusively entitled him to hold. The case before me depends upon its facts, and I shall, therefore, begin with the defendant's evi- dence, as first in the order of time. It is stated that, in the year 1768, the de- fendant, or his predecessor, having occa- sion to erect a fishing-room on the South Shore, and desirous of ascertaining how far it was necessary to keep from the naval yard, was informed by the gOTemor that he might approach as near as twenty feet of the eastern boundary. This information he re- ceived in writing, and caused to be indorsed on what is called a grant, from the same governor, to build other fishing-places. In the following year, 1769, there is a similar instrument, confirming the defendant in the possession of the place in which he then carried on his fishery. These instruments, which can hardly be considered operative as royal grants, are of use, however, as evi- dence to show the first intention of the parties, and the probable time of possession; and 1 must own it as my impression upon them, considering the situation of the place in question and its acknowledged conve- nience, indeed its actual connexion with the defendant's rooms, as forming part of the front of his flakes, that the defendant most probably took possession of the place ac- cording to the intention of the governor in 1 768. Following the course of evidence, it appears that for the last twenty-nine years, the defendant has occasionally erected what is called a •• summer flake " over the dispu- fori C!t\nr>a ^ff n>Mo..nJ . 4l.n^ it~^ l«~i. ^_I was built in the year 1811 ; since which per. 1818 u If \mm* i W ^B H " 14^ 1818, iM i * i (■' i u CASES IN THE SUPREME COURT, nod it has been used more particularly for hauling up boats, for which the defendant had a greater occasion, in consequence of having reduced his number of barking ves- sels. So far the evidence of the defendant goes to support a long and peaceable pos- session of a place actually used in, and es- sential to, his fishing establishment. On the part of the Crown it is stated that, in 1804, a survey was taken of the several fishing-rooms in the harbour of St. John's, and, among others, the defendant's is laid down in the plan, in which the space in ques- tion is not included, but appears as an open cove. But this plan in itself, however, made under very high sanction, cannot bear down positive testimony, directly contradicting any presumption which may be collected from it. The statute giving the title which is now claimed, requires no registration of property to make it valid ; possession peace- ably acquired, and use in the fishery, are the best title-deeds which can be produced in Newfoundland. The evidence of Mr. Bol- irooky on the part of government, is too re- cent to meet the statements of the defend- ant's witnesses. He proves that one of the Kin'^'s anchors was laid upon the disputed ground, in 1812. But with what view was it laid there— as a boundary of property ?— It was for the purpose of hauling up a mer- chant ship which had arrived in sinking condition, and required to be immediately run ashore. The mere fact of putting down an anchor for such a purpose, and leaving it there, proves nothing. It is a circumstance capable of explanation from the recency of its date ; and it has, I think, been explained away in the very intention for which it was :_; ii« loir! flAwn namplv. not as a mark or boundary of property, but as the means ot RT, cularly for defendant Equence of irking ves- defendant :eable pos- in, and es- nt. itated that, the several St. John's, it's is laid ice in ques- as an open ever, made bear down ntradictinp; 3 collected title Mrhich istration of ision peace- lery, are the roduced in )f Mr. HoU t, is too re- ;he defend- one of Ihe he disputed view was it )perty ? — it J up a mer- in sinking mmediately iitting down id leaving it ircumstance 3 recency of in explained vhich it was )t as a mark he means of NEWFOUNDLAND. aiding a ship in imminent danger. — Mr. Holbrook goes on to say that he always knew the cove to be used as public; but his experience does not go back for more than six or seven years ; and it appears that what he considered as a right, was frequent- ly complained of by the defendant as a tres- pass. If the place in question had been public, It seems natural to suppose that it would have been easy to prove it so by the testimony of many witnesses, whose length and locality of knowledge would have pla- ced the matter beyond the •reach of doubt. As it is, 1 am of opinion that the defendant's case is within the protection of the statute ofWilliam; and I must, therefore, determine, in the words of the Act^ that the defendant having, since the year 1685, built and made a house, stages, and other conveniences for fishing (which appear to have included the space in question), is entitled, peaceably and quietly, to enjoy the same to his own use, without any disturbance whatever. 147 Peter Lahy against Francis Tree. Ti ^ HIS action was brought to recover the sum of £5 \As,9d.y amount of servant's wages, under the following circumstances, iMhy was shipped by the defendant for the summer of 1815, for a certain sum ; and at the close of the year, took sfti order on Shannon Sf Co, for balance of his wages, which he received from them in a bill of exchange, and which bill was protested. — Defendant contended that he was dischar- ged under the authority of the case of Meany v. Pynn^; but plaintiff insisted that * Ante p. 66. 18(8. The King V. Row. November 20M. If anindependv ent planter gives a servant in the fish- ery an order upoo a mercbanl for the payment of his «a« ges, and the ser- vant takes from the merchant a bill of exchange which is afterwards protest- ed, the planter still continues liable to the servaat for bit wages. 140 ': f. 1818. Peter Lahy V Francis Tree. CASES IN THE SUPREME COURT, defendant was an independent dealer, em- ployed his servants upon his own responsi- bility, and sold liis tish to whom he liked; and, therefor ', that the decision in that case was not appli -able to the present. Upon these facts the Couri adjudged, that, by the 15th Geo. III., the employer was obliged to pay the one-half of servants wages in money, or good bills of exchange upon Great Britain or Ireland^ That the defendant, acting for himself, as an inde- pendent employer, and not as the agent of any particular merchant or receiver, was, of course, bound to follow the directions of the statute. He had not paid money, nor had he paid bills, and, therefore, he would be liable to the servants, unless it could be considered that giving an order for bdU was tantamount to giving bills ; in which case he became party to the bills, and must be considered as guaranteeing their being good. The defendant was liable to the plaintiff for the amount of his wages, agree- ably to the provisions of the act. But, inas- much as it had been (nade to dppear that the first fish and oil had been sent to Shan- now, Levingston Sf Co. to meet the order for servants' wages ; and as the statute express- ly made *' the fish and oil subject and liable, in the first place, to payment of wages," the defendant is entitled to take the benefit of the clause, and claim upon Shannon Sf Cos. estate as for servants* w,age8 of the year 1816. ll HT, NEWFOUNDLAND, 149 ealcr, em- i responsi- he liked ; I that case adjudged, employer F servants' '' exchange That the J an inde- 16 agent of er, was, of ions of the y, nor had > would be t could be Dr for bills ; in which , and must their being t)le to the ges, agree- But, inas- 3lppear that it to Shan- te order for te express- : and liable, jvages," the e benefit of non Sf Co's. )f the year Elizabeth Caurell Carson. against William Ti HIS action was brought to recover one year's rent of premises, situated in water- street ; and the defence to it rested on two grounds. First, that the house for which the rent was claimed, had been consumed by fire, and, therefore, that the lessee's obli- gation to pay rent was at an end, under the custom of this town. Second, that the ground upon which the house formerly stood, had, since the fire, been appropriated to the use of the public, and now actually formed part of one of the streets. To establish these two points, the defendant called Thomas II. Urooking (sworn). Witness, as one ot the attornies for the piuintiflT, had conversation with the defendant; and it was the opinion of both, that thejire having des' troyed the premises, had cancelled the lease. An account Avas stated by the defendant, and given to witness, charging himuelf with rent up to the day of thejire (the rent was payable every 20th October) ; and had the money then been offered, witness would have accepted it^ and considered the lease at an end. Geo. Lilly (sworn). Witness drew the lease in question. He intended the lease to operate merely so lon*^ as the house was in being. It was generally understood that a Jire extin- guished the lease, and, therefore, there was no express clause to such effect. Cross-examined. Considered that if the premises were burnt, it avoided the contract altogether, and that the landlord would have a right to re-enter, althou.i]rh the lessee should wish to retain the ground. James Simms (sworn). Confirms tLjstate- 1818. December 1th, Where, after a liniiso liad been desiroyeJ by fire, liitt K't^uinl 01) which il stood was converted into a public street, and the acts of tile les- sor's aiicnt alst* amounted to " suniethin;; very like an acceptanc* of tho surrender of the lease," the les« see is discharged from his covenant to pay rent. [Seu the case of J. Broom v. Preston ifStabb, decided in the Supreme Couil, i:Uli Au|just, 1825] 150 . 5 ill 1818. Carrbli. V. Carson. CASES IN THE SUPREME COURT, mcnt that it was the opinion of all persons ill this town, that a fire put an end to the te- nanlcy. That he has been in the habit of making many leases, and knows this was the prevailing understanding. In pronouncing judgment for the defend- ant, the Chief Justice said : — The Irssors agents (who executed the deed) having done that which amounts to somethin very much like an acceptance of the surrender of the lease , and also the ground on which the house stood, being ac- tually converted into a street; so that the defeiidant could not use the ground, or re- build qn it, if he wished to do so ; I think that this action cannot be sustained. Dtcemhtr 1th. Tn a case whrre the fomimssioners of tlie customs had exprrsseii a disin- chnation to enforce a bond given by a party who liad bepn (Siiilty of an infroctMxi of an act of Patli&meni, iin- ilfr circinns'ancfs which necaiived •fery presumption of fraud on his part; the Court considered the bond as cancelled. A. H. Brooking, Esq., airainst Charlei l\. Byrm; and 11. Job. This was an action to enforce the penalty of a bond, under the following circumstan- ces. The defendant, Byrne, master of the ship New Century, arrived at this port sonae time since, from Liverpool, with a certain quantity of bread on board, consigned to tbe other defendant. Job. The vessel and goods were regularly cleared by the custom- house at Liverpool, with the exception of 500 bags bread, for which there was no cocket. The plaintiff being doubtful as to his power to admit the said bread to entry without the regular cocket, and at the same time, believing that the cocket must have been' left behind, as it could have ^een had, as ft matter of course, at the time of clearance, took a bond from the defend- ants in hifi own name, conditioned for the production of the cocket. It turned out, however, that the cocket had never b«en RT, 1 persons to the le- e habit of this was 3 defeud- ?uted the nounts to eptance uf also the being ac- o that the id, or re- ; I tliink d. Charles 16 penalty rcurastan- er of the port some a certain ;ned to t^ie essel and le custom - ception of e was no btful as to i to entry t the same must have lave ^een the time le defends tioned for unied out, .ever been NEWFOUNDLAND. taken out, and the present action was brought to enforce the bond. 'J'here was a letter from the commission- ers of the customs laid in evidence, by whicii it appeared that they had expressed a disin- clination to proceed against the parties. 'J'he Court, having heard the respective parties, cave judgment, in subbtance, as follov ) : — ^ T! is is an iCtion on the equity side of the Court, o eirorce the penalty of a bond given i; I tlie ;>roduction of a document from tlie cu.' jm-house at Liverpool, as to the whole of the bread which was imported into the island without a cocket, having been laden in England, pursuant to the statute 4th George III. The defence that this sta- tute was not imperative, and did not cause a forfeiture, was not tenable. The act pro- vided remedies at several stages ; first, in forbidding the clearance of all goods not la. den in England, for the colonies. Secondly,' in making any goods whatever, liable to sei- zure, as forfeited, as soon as they arrived, without a proper clearance, within two leases of a colonial coast. It fixed the limit at which the forfeiture accrued, and the seizure might be made at any time after. [Vide Lockyer v. Offley, \ Term, Rep. 252.] That the objection as to the bond, being conditioned to perform an impossibility, by producing what never was in being, was a mere quibble. The custom-house at Liver- pool might have given the document re- Suired, which would have satisfied ihebond, lut as the commissioners of the customs had signified a disinclination to proceed on the bond, the Court must consider them as virtually exercising the power vested in them by the 61 Geo. 111.: and as tliAro wqc « t/^toi absence of all fraud against the revenue, the Court would consider the bond as cancelled. Idl 1010. liROOKINU V. livRNu cv Job. i I: 152 CASES IN THE SUPREME COURT, ^' ^' ^' ^^^^ ^'l ^?^inst Miller, Fer- December 9th. «: <- O. l)eBu,y.c.i,.c,„, „,,'„„ i, f " from the following decision "' y*' n. Duties, Ti„^ gi . accompanied bv a , * ^"^ Curiam. — Tlii<5 i« o« *• threat SfattaZ^ "t>y the plaintiff as rnl ! f '^'^i'^i" *''*«"&»»t t'.e fish belon^i^J Hospital du fes to r! *'*'' ?^ Greenwich not complied wjib ^ "e defendanta o«« ^ ='»«»"tes. — »"« ajseit of Z* land, eAtenSvelv .r "^T'^^^ls of this is- clefeDdants agrees, for what intVl i°^?^"' '"•««"««& Supplies n.™ ...pioye,, ty Lndedoi ,iL ^'!*""''='' Hospital dc- pursuance Of this '"^nt'*. for all the fi^hl ^^ ®^ ^'^- P^r a.-menf. draw': defendants rstafnfttrr^PP'^^ ''^ ^^^ * bill „pon the de. WeiP rnm^i; i^^Pf "»»' UnleSS this DrODOSil fendanis for .he ♦ ! Compiled With, he should ho ^iV- J amount thereof ^"^ ^^^tach their Jish To th;, J 5^*''^®^ -hich Is reSd r"^« at first Sted nn^ "^^"J^?^' '^''^- P;yment by ,hem. ship of payin- tnonev f^ "'^^*^ "*^ ^ard- ^-.'dt that the in debt to I .V^- ^^ , '' Persons who were plaint ff coiiM „„. . "\"' 10 Ins princiDa s f/.H ♦l>„: ,.*^*^® f ^!i ;fr lOBDine sum which *""«• "'s instructions Vwh.-^i, i "^ . ^'°*^ had been ..,u«iiy Were to attach thrfiVN*'^ \ ^"^ *« ^nfor. stopped and de/ into executlnn I ^^'"'^ ^'^'"'d be carried tained by defend. ney-llT ', ''^ ^^nsented to pay the mn •n's'agent from the T^ ' ^"*^ «» t*»e 29th of Octohpr Ll " fis!,.rmen on ac! ^^^-^W a bill of exchan-e nnin /u ""^^r^S"' count of the duty, ants in St Jnhn\r P^\^^^ ^^^ defend- [See .he decision'^ This bdl Was pre^eitlH'/^" '"•" demanded, ^hich were given refused an,i M °'®^ ^'°'* acceptance but >n the Supreme "' an" the present artmn ii^lTi ' Court In i826.Tn '"^cover the amount hi. ? '^brought to -emal import;.,; defendants that their i '^l^^'^'tted by the rh-;Sr '^ ^-- ^"'« "Pon ^em^f rdrTheTeK :? r (J^^l^^«:?— - -3 I.ana ana .,..,.,,, , ,, ^^^^^^ i EME COURT, nst MiLLEB, FeR- 'ill be satisfacto- >IIowing decision » action brought »>• of Greenwich r the sum of £42 inge, drawn un- nces: — lanis of this is^ nssuing supplies ^e fishery, which by means of an (ember, the de- h Hospital de- emon, a written 'ty of Qd. per Hipplied by the ss this proposal uld be obhged demand, Ste- rged the hard- ons who were heir suppHes; puty-collector ' am to inter, uld be carried pay the nio- ber following, i the defend™ « demanded, eptance, but is brought to nitted by the 18 authorized therefore, no to the paymenk NEWFOt^NDLANrn 153 % payee, X^X^^eL^L^nirr ^ fendantscanavnil V»i i P'^"""» the de- f'om the drawpr h.ml IP ^' claimed teral nndertakln^ J ^'^' .°'* "P^'^ '^'s colla- r^nsl .:.u^*"^ ^<^'* another, which i« til case m the present action, f he act nf P liament under whiVh *k1 *i / • , of Par- directs it to be patj ^."zf "^^^^ »« demanded. to ite provisions If ti!J r ^^***'*» subject able in .he'p?ese„/ck tlf;7j bvZl''T masters whom thp rf»B.„J . >>y the boat's the latter can only be mar? l"??''*''. and press undertakin/ ,,'"*''* '"We by an ex- -changeTat Tlfey i wCS ae'lhr'"" if •heir agent, for the pavmenl „f 1h ' t^""}«^ money demanded o?.h? J ■ *'"' hospital consi Jeratr t'thl "uTdSSi ^as ^ How f„ ?"e process oJaT'l*'''' "*"'• have been lemllJ .tl attachment could ive dSr^^^wLre TheT"'' ''"V^P***- -as its existence .o'tir^^rorthTkl^g'' 154 1818. Lb Gbyt V. Miller, Fergus & Go. ? .' CASES m THE SUPREME COURT, which limits it, however, to cases where the cause of action exceeds £5, and is sworn to by the party. It is equalJy unnecessary to determine how far the persons on whose account the duty has been demanded, and who are all stated to be boats' masters and their children, or sharemen, employed in open boats along this island, may fall within the meaning of the act. The Court is in possession of an opinion of Sir P/«i7ip Yorke, that all persons whatever, engaged in fishing, are liable to the duty ; but it cannot help thinking, from the unqualified language of that opinion, that the exceptions contained jn the 10th Anne, chap. 17, and which are there confined to open boats on the coasts of Great Britain and Ireland, had not been extended to the colonies, at the time that opinion was given ; and it is the more in- clined to believe so, as Sir Philip had been many years t^ttorney-general, before the passing of the 2d Geo. J J . Indeed, the case put for the opinion of that great lawyer was upon the construction of the statute of Anne, and it is hardly supposable that a subsequent statute, passed so recently, and for the express pui|>o of extending the provisions of the former act to the plantations, should have been overlooked, if it had been in be- ing at the time. The case before the Court turns principally upon that part of the clause of the last-mentioned act, which directs the duty to be paid by the masters and owners of the vessels subject to its provisions, and for that purpose authorises them to deduct the payment from the wages, shares, or other profits of the persons liable to the duty, if such persons shall be entitled to any wages, shares, or other profits. U, therefore, the persons on whose behalf the duty was de- ^^--j rr-^iw MVi ^«iiUcu lu iiuy iaaar€S| Cc E COURT, cases where the and is sworn to unnecessary to rsons on whose demanded, and its' masters and n, employed in may fall within he Court is in \r Philip Yorke, faged in fishing^ t it cannot help led language of tions contained and which are ts on the coasts 1, had not been it the time that is the more in- *hilip had been il, before the ndeed, the case eat lawyer was tatuteof Anne, it a subsequent and for the ■ the provisions tations, should lad been in be- ;fore the Court irt of the clause lich directs the ers and owners revisions, and hem to deduct ihares, or other o the duty, if 'o any wages, therefore, the duty was de- to any shares, NEWFOUNDLAND. 16>6 I there was no original cause of action against iftift the masters of the boats in which they ^were v— ^^^ cTnSatior'f.'T^.^"^"^*^' thereUno "nX:r In^lT ; ,i ^*'""*^^'* "P^n forbearance «• Jn order to determine this point it wiH h^ Filler, Fergus proper to take a cursory view of the rda "on "^ ""'' of suppliers and iishefmen. as established by the usages and law of thi; island It has ff i /; °^^^««^"«« for a fishing voyage ieLf'''"'^ ^^^ ^^ i*« foundation in the necessary connexion of the parties Exm rience has proved that the^verrexis^^^^^^^ of the sedentary fishery deoendi .m^!. fk- principle; for it'is theToIeXunttrVthe mef n??i?' ^^"^^q'^ently, of the emp oy! tates ; and it is guarded with so much strirr ness by the Courts, that a judgS at i^^^^ ryToy':grura^r"^''^p^^^^^^^^^^ be Jn satisfied '^" ""'''""' ^"P**"^' ^^^ ed^t^o^^thi^l ""^ P'r°"'' ''^^^^ "a™^s affix, nVr?* 1 5 ^^''^.'^^ accounts demanded as CoTV''''' ^"'! ^^^" exhibited to the ^TLr^ f^ JV' T"^"" *°«^ their sup- plies from the defendants, and emolovirl .rom hired smante iu .hi. iiportdlt pcliti! U( 156 1813 Le Gett V. Miller, Fergus JkCo. CASES IN THE SUPREME COURT, cular that in ihe latter case, the wages are ascertained, and the duty imposed by pari i, ament attaches immediately ; while in the lornier, it depends upon the contingency of the voyage, whether any profits will arise, and, consequently, any share arise, out of Which the deductions can be made on ac. count of Greenwich Hospital. it appears that at the time, the demand was made by the deputy-colleclor, he was informed that some of the persons were in debt for supplies, but in consequence of his threatening to attach the fis?, in order to avoid expense the defendants agreed to pay the money. Now, supposing that he had proceeded by attachment, or any leVal couBse, could he have come at the fish until tfte lien of the supplier was satisfied?—! am of opinion that he could not,consistently with thelaw of the island, uncontradicted, or! rather, confirmed, as it is by the latter oro vision of the Act of Parliament. ^ ^ In every view, therefore, which 1 have UkeTtLV^' \''' of my judgment, to take of the case, I am of opinion that the amount of damages should be limited to the sum paid into Court, together with the n \ E COURT, the wages are osed by parlU ; while in the lontingency of fits will arise, arise, out of made on ac- B.the demand lector, he was •sons were in quence of his b, in order to agreed to pay that he had >r any legal the fish until sfied?— lam iistently with radicted, or,^ le latter pro- ^hich 1 have iudgment, to iion that the mited to the r with the NEWFOUNDLAND. 157 In the case between Cowell&Macbraire ^^'^ Btrl!;^Mr 'rr^/"^J" -i-ction to re. the nlAJn^iff l''''^''' ^"%' t''e agent of the plaintiff, from paying over to th? piain- tiff the proceeds of a bilUf exchange wS tistctbn" Z'"" '>. '^ ^'^^ defenda'ntTn a! DhinH^«f ^ judpent delivered in the H Pc?f Z^''''"'' ^^ ^^'^ ^o»''t ; and he urged hese facts m support of his motion --^tfa i?s" rtl n%W,^'"r^^ "^r ^'^*^»' '^^d been insured m England to their full value and nlin^T""' f ^''^ insurance paid t^ the whcrtL'r^ '^^P^"' of tbe^ground on tTken ht th ''^"f?. ^^••"^^'•'y stoorl had been Meagher & Sons agaiuH Hunt, Stabb Pkeston & Co. nTsf a^lf^eltScri^^^^^^^ \ ^\ «otes, made dnnng7hetriluf^^^"'f^'''^ -Action to recover the sum of ^T^i i lo ^v. goods sold and delivered ^*' ^*''* hv^^^"' ^f"^/*" ''**''. **^^ «/ ^^^'//an^*, drawn by defendants on their house in iCgland (Case submitted to a special jury ) 1 he sum demanded was admitted mH A great number of''witnessef werTe^u. Dtixmbur iith. Inj-in. tion crant- ••••by tlipSn.r.me Court to resiraia an uf-cnt from pav- ii2 ovpr ro tiis principnl a si.iu «f money recnved hj >iim in satisfaotioa of a j'jfJpinut in favour of his pria- C'pal, Wlif re it ap- peared, from cir* cunisianct's not known to the We- fpndunt at the time of trial, that th« plaintifl^oiight not «o have the benf^k ot that judgment. December 1 1/A, A special jnrjr nn«. that before t'»e passing of the 49 G;o. IK., c. ~7, the custom of receiving a iuer, chant's bill m ^ay. ment of i debt due by iijin,, wflt general; but that f'nce that period it has noi bten so. 158 H I 'If Meaghkr Ai Sons r. Hunt, Stabb, PRKSXON & €o. CAgES IN THE SUPREME COURT, amined ia si^pport of, and against, the spe- <^»a; <^"st m. tat up as ll < defence. pare. 8iite ibe ca^e; question of lo- . cai custoDf ; iaw ofemioms; take a view of the iinglish law, in respect oflegal tenders-^ not good unless in the lawful current coin of the realm; e.en teA^io^'c* not lawful, un- ies, exprtsshf made so by act of Parliament. I robablfc on^hi of ihe /oca/ practice of giving IjUs. ^ lsr;.-™No rjjixulating medium. 2dly.— ihe circumstance of the first fishery being transient, and the proceeds not being realized until ioey got to England, where, indeed, the contracts usually originated and ended, 3dly.— In the statute 15th George IIJ the emj;ioyer is allowed the alternative of paying the servant either in money or in bills of exchange, payable in England or Jreland. •' But the very passing this clause, negatives the argument that bills were a lawful tender before. However, it may account for the origin and continuance of the practice of paying by bills. But, whatever may be the origin, the questions now for the jury are, viz. :~ ^ Is there a fixed and universal custom among merchants upon the issue? and what IS the custom ? This question, confined to merchants and dealers in this island. 4u^^u^\^^'.^^^^ ***® general question, whe- ther bills of exchange are a legal tender in all cases hat it is not universally so; but the ques. ci more properly resolves itself into vh?f!-- By .-,c!ieral understanding ofmerchants, in thfciTAtractsofbuying and selling, it i» consid'jv ? :ig the condition of sale, unless trie contr. V je expressed at the time, that i ^'"•liik., I COURT, inst, the spe- nee. uestion of lo- :ake a view of ^egal lenders — urrent coin of )t lawful, un- f Parliament, al practice of m. 2dly. — fishery bein^ jeing realized here, indeed, and ended, Qeorge IIJ., alternative of Qoney or in England or se, negatives awful tender ount for the practice of origin, the I'iz. : — jrsal custom ! ? and what rchants and 3stion, whe- il tender in ally so; but olves itself merchants, lling, it [h sale, unless time, that MiWFOUNDLAND. 160 the goods sold are to be paid for in a bill of 1818 exchange In all contracts of mere indiffer- >..J^^!^L^ ence in the eye of the law. and such as are Uek^^^ not contrary to public policy, the intention sSns"* of the parties must govern the interpretation „ "• ni' III among uier^ ctiaiits, It is one of •he implied con- ditionsof sale, that payment is to be made in bills ofez- cbnnie./oiea/jprc- ved or rijected at the discretion of the jMTty to whom the fayment is due. o N this day, a motion was made by the defendants for a new trial, upon the ground of the verdict being contrary to evidence, and void, for uncertainty ; but it was refused by the Cliuf Justice, who said : — The simple fact forthe consideration of the jury, was this: — Is there such a custom in this island, as that the vendor of goods is bound (unless the contrary be expressed), at the expiration of the term of credit, to receive the purchaser's bill of exchange in payment ? The Jury have found that such a custom did prevail before the passing of the 49th of the King, which altered the law in respect of the preference given to New- JCUllOia, upuii illCU'IUUUUiUUv. lOuuuiaiiu. estates f but that since that statute, the cus I w cou'h'r, IS, in the ab* av be called intentions of ,'hange of the iven must be reditor being )f approving ing verdict { istom of re- nt's own bill, assin^ of the en the pro- the country )plied to the d creditors, ibsequent to I'ing; a mer- variable/' NEWFOUNDLAND* 161i and Others," lade by the the ground evidence, was refused •ation of the 1 custom in ' of goods is expressed), of credit, to exchange in id that such 3 passing of red the law n to New- te, the cus- Meagher ^tE Sons tarn had not been invariable; leaving it to ]81i8. the Court to determine, whether, upon the fact so found, it could be considered as a custom having the force of the law. Jt is one of the necessary requisites of a custom, that it should be continued; any interruption J^"^» Stabb, to it as a custom, causes a temporary cea- *^*^"®'* * Co. sing, and thereupon renders it void. Now the jury have found the time, since which the alleged custom ceased to be observed; and it becomes the easy province of the Court to say, that it wants one of the requisites of a legal custom, and is therefore void. l^pon a matter of so much importance to the mercantile community, it may not be amiss for the Court to explain its view of the ]aw, as it may now be considered as seicled. It is this: that in ike absence of express agreements between merchants, it is one of tkc implied conditions of sale that payment is to be made in bilh of exchange, to be approved or rejected at the discretion ef the part^. to whom the payment is dme. JohkBbopuv against Attwood & Ha^nrjiis Decemher 12th, Unless some act |*M be done by tba I HIS was an actiott to recover the sum utr/^'iS of £36^^ sterlings upon the following guaran< tee :— Mr. John Urop9y, Sir,— We hereby guarantee io yon the payment of whatever just and lawful swrn of money is now due to you from William Casey, one-half (his fall, and the other half ihe ensumg fail of 1814, on condition of yoor making over to Thomas Duffy all^ yaw Y of the time limited for payment, toi«A<. but the knowledge of the surety, the inere neglect by bim to lake active measure! to eufore* payment from tba principal debtor will not relieve the iursfy from his ii> ability to pay the debt. 162 1818. •AOPKY V. Att Wood & Hatmss ri w t CASBS IN THE SCPBEMI! COCIIT, ""*' ""nam Casey, master. Pro Attwood h Haynes, St. JoWb. October 25,1813.'""' *"""'• i. f'f^-^'^.L** J?'"'"'!^ states, that JVil- he'"p,Sff''Tr'P^t «-?'"« indebted a ZuW hi r ^^JT'^i "l *•"=•' balance as Principal died ; . and .h%,^"tLet nee'' this action wad : ought. "^yut-uce. Produces accounts between.- ophy und Casey, from 1807 to 1812, by wti^^^a ba lance is claimed of £369 11,. 9/ ^ ^*" by winch It appears that the (Jt^fenda * actually received two hundred and thltu pounds for the sale of the schooner JaiZ^ ^^■nms, for defendants, states that thev rTT T "* ,^^ ^"^ny* wishing to disDose ofthe .f.«^ and buy another vessel, ih7de femlants acted as L's L okers. or agents in «olhng the schooner ^ane for £230 e'ud /of/in I81T n <^^'**^^/) name, but wa. S/ John's hI^?""'"^ ^r"^ ^"^ ^"tP^rt to at. John s.—He also produces a paber bv vjhich It appe. . that, in 1810, JirSance «„^ • • ^^^s guarantee vas given ».■ !OURT, the schooner Iaynes, BY 8IMMS. js, that Wil- indebtecl to the payment, ooner Jane ; »eir accounts ome to a de- ig to dispose lits to gua- balance as -ators. That ; that the >nsequence, Vrnpky and vhich a ba~ s . Jmjtte'' tiefenda and thirty Jr Jane, that they r their own io dispose ely the de- a??ents, in ^230, and >vhich was 3, but wa^ outport io paper, by e ualance 'as given ivourable rj posses- NEMTFOUNDLAND, sion of a schooner, as a security for his de* hiand ; and that security he relinquished at the express request of the defendants, when they gave their own guarantee instead of it. It is, besides, a strong presumption of some money being actually due from Casey io Brophy ; although, the parties not agreeing as to the amount, it was referred to arbitra- tors to adjust. The arbitrators were dilato- ry in their proceedings, and could never be brought to make their award ; in the mean time C cy died. Nothing then remained io be done, but to carry the case before a competent tribunal to determine the sum due from Casey to plaintiff; and unless the defendants can show something which has occurred, since they gave their guarantee, to relieve them from the effect of it, they were bound to pay the amount adjudged to be due. It is contended, that there have been laches on the part of the plaint! T, in not enforcing his demand in the life-timt of Casey. But it was necessary that the amount should be det( rmined before he could en- force payment ; and it does not appear but that he endeavoured, as much as he could, to get the award from the arbitrators. The delay was theirs, not his; md has not been attempted to show that he ive any indulgence to Casey, by extending the term of payment, or otherwise. Besides, mere neglect of active diligence to enforce pay- ment from the principal, will not discharge the surety (a). There must be some positive act done by him, £ .me extension » f the time limited for payment, without the knowledge or conient of the surety, to relieve the latter fro.a his agreement. It was on this ground, (a)6VM, 734. 163 1818 Brophy V. A rrwooD 8c Haynes. ' III liW Attwood ^ CASES IK THE SUPBEME COURT, before the Court. '''^ ""^"^ <*°^ o.«i/°'u^.*^ opinion, that the guaraatee is a Inu t^^ H ''''"^ ^^^"^""^ agai„sTth7de?end! Xfntff r™''""'**r^'«'^'* debt to the & J* J" T?t*'"^u '^' «"«» dae from bv fL r ^^i^^^ ^y the amount given i" and whJ^^'"**^ '^ "'^^ defendants in 1816^ Jiidgmentfor the plaintiff, in the sum nf two Aundred and sixt^ght pounds tZhil imgs and eight-pence sterling, ''" Assignees of Rvan & Son against trustee. Jinnar^w, i8ia of Ryan & Sons. Where trustees, onder a composi« tion-deed. bad dis- tnbuiedpartofthe property (bat came into ibeir bands •mong (be New*. loandland credilori at large, and retain- ed (be remainder •n salisfaotian of tbeirown claims aa creditors, tbe Ch. Justice beld, that the assignees uo- der a commissioa of bankruptcy in Eogland, could not recover the ainoual «f those payments trom th« (ruaiflM, F«iiie!», tne cnief Justice now delivpr«,i judgment m nearly these wordsT- '"'"^ ofT^'^ 1 ^« ^*'^''*" ''''°"^*»' by the assignees tTestate of 'jJP'^ V«c''"«' *^« trust^eT of aIaT °' ^^*"* ^ '^^»*. appointed bv deed of composition, at Ne;foundS for ZZh^^L'' ^'''^"^ ^^-'* interest L •the partnership property of /2«a« &- Som It appears that the parties wfre concerned in busmess, which they carried on in nTw foundland and at Liyerpool? iCider thJ ■also carried on some business on comST s on, on account of the concern, bSt £• * --«wv »»tMii„« wtt wfciweea Li?er- COUHT, 5 present de- cided, and it the case qow uarautee is a t the defend- debt to the im dae from int given in nts in 1816; e confusion ?at fire, was to be used (he sum of ds teus/iil' St trustees beard the delivered ' assignees h commis- rustees of •inted, by dland, for iterest in j'Sons. ODcerned in TSew- ider the ^phRyan commis- but not seofthe I Liver- KAWFOVNDLAND. |)Ool and Newfoundland; that in conse-' quence of embarrnHHments, Joseph Rifan en* tered into a composition with the principal creditors at Liverpool, in February, 1817, by which he agreed to pay the English cre- ditors a dividend of six shillings and eighth pence in the pound, by three instalments, out of the funds and effects of the Liverpool branch of the tirro. The creditors of the Newfoundland branch, hearing of thib arrangement, became pressing for a settlement of their demands, and by a deed of composition, dated at St. John's, 28th May, 1817, Timothy Ryan, for him- self and his partner, Joseph Ryan, assigned all the funds and effects at Newfoundland to the defendants, in trust, for the benefit of all and every other the creditors of the said Timothy Ryan, and his said partners, under the firm aforesaid, for goods sold and deli- vered them in the island of Newfoundland aforesaid, or any other transaction with them within the said island, in equal pro- portions, ratably and proportionably. In pursuance of the last-mentioned deed, the trustees proceeded to collect the eflfects of Ryan Sf Sons in Newfoundland, and dis- tribute them as far as they would go, when some of the creditors ot Liverpool, not ha- ving come into the arrangement there, and the others not receiving the promised divi- dend, Joseph Ryan was declared bankrupt, and his effects and interests transferred to plaintiffs as assignees. As the respective branches at Liverpool and St. John's transacted business under the same firm, and seem to have been iden- tified, in a great measure, by the course of their dealings, it would have been right had the En&rlish creditors onnsiHonoH «k<^>n „<> tormmg but one house, and under the same IM 1819." Aflsigncfis of Ryan Sc Son TruitocB of JKyan & Sons, f lee I •n ^ ' ! ,':. I8id. Asignees of Ryan & Sop? V. Trustees of BvAN & Sons. CASES IN THE SUPREME COU«t, batScv^'in'^rh ^''^^^ ^ commission of S S«^nf r .^^^"^«7' 1817. against Jo^ edituTu ^'TP?^'' andtohave follow- against §^.„^V declaration of insolvency ivTjJri VT^y ^y^^ in this island. But entred btoTl '"i ^'^^.^''^^^t^rP^rt of them eniered into a deed, in iln operation tendinn- to place the creditors of the two branches if a distmcl pomt of view in relation to the re" Kst^l?''''''* .P' Newfoundland eel receive «n'°^ "P ^^^ ^^^^ '*'* ^^^ ^^^^ view, IZoJ.T ^'^•Sn»"ent of the Newfoundland effects through the hands of trustees m.^Vr;.^^ . ^ circumstances, whatever might have been the true light ik which the two branches should have bein con^derec I ihTTff" ^''V^' ?"^*^^« ^^» ^« charged bJ >vbat effects they have actually distributed even supposmg the deed of assignment void want of a sufficient power in Timothy Ryan to Una Joseph Ryan by deed. Yet thf de- I^enJs .'r 'S'^^'^ ^^ considered as The ^Jllor^rnff'''-^"^"* the defendants have l7ZffL\ ^'' '.' '.' P'^'^^d that they have hirpf. '^K*'"'^'"*"^ *^ their hands ; and! therefore, they must have judgment iv h faction onL^''^'yJ^^'' '•'''^^"'*^«'' ^»««ti,: taction of their own demands as creditors I tbmk under a full view of the whole clr- rZl^r.^^ '^"^ ^^«^» ^« they now stand. Wni *?''* '^^'% ^^^ ^«d« <>f J"«tice by distrbed'" P'^*^^^^'°S« <>f the trustees u/ \^*k.. ■*»'*W«»s, oij«r, nmission of against Jo^ ave follow- insolvency and. But, art of them on tending tranches in to the re* lland cre- arae view, foundland ;es. whatever which the isidered, I liarged for stributed, lent void, from the hy Ryan !t the de- ed as the id under ing pos- •tnership ats have ey have s ; and, . With [ributed, in satis- iitors, I jle cir- T stand, »tice by ees un- NEWFOUNDLAND, Deputy-Sheriff of Harbour Grace against Thomas Pynn. %J PON a rule to show cause why the Court should not compel the defendant to deliver up the certificate of registry of a schooner called the Lark, which had been sold hy the plaintiff under divers executions from the Surrogate Court at Harbour Grace, — The defendant now appeared,aud showed for cause : That several judgments were given by default against the defendant, to meet which he had offered to deposit monies, until he could show, under a writ of inquiry, that the sums demanded were not due to the full amount. That the whole of the judgments amount- ed to little more than £1U0, and that de- fendant had abundance of property in his house to meet them ; but that the Deputy- Sheriff attached a valuable schooner (for which the defendant had paid £600), and advertised it for sale the next day, when a friend of the defendant intended to have brought it in, but it was sold before he got to the auction for the sum of £400. Per Curiapi. Enough has appeared to satisfy this Court, that the present is not a case in which it will interpose. The insu- lated facts of the property taken in execu- tion being so much greater in value than the judgments recovered, and advertised one day to be sold the next, would be sufficient to call forth this determination of the Court. Sales under process of law are compulsi.. tory on the party, when they are regular ; but th y must be strictly regular to be legal ; and they ahouid be so fair, open, and above board, as not to admit of the suspicion of let 1819. January 14 ir i mm>9§imimm 3!e RT, ffering any t may not free to say therefore, refuse the the reliel Morris RY. f <£65, un-' tie Barry ^ •or a term ', 1816.-. ra, Barry le his per- ), entitled 'in, which Defend- \ expired, ng, dated e to quit, directs.'^ lispossess at his re- antees to lever reni iacbrairCf, October, emonths. ince paid, ^aire, for than the ^ry to the 3 brought noney so NEWFOUNDLAND. Per Curiam. On tlie 25lh October, 1816, it appears, by a note laid in evidence before the Court, Mr. Macbraire notified the de- fendant *• to quit the premises immediately, or he should proceed as the law directs." — This notice is dated near a month after the expiration of the defendant's term ; and, therefore, the statute giving double rent, which has been held to require a previous notice, does not apply to the case. What, then, does the law direct ? Why, an eject- ment, which is not brought ; and the action is resolved into one for use and occupation, for the time held over the lease, the value of which must be collected from evidence; and as the same premises were let in the following year, 1818, for a new term at £40 per annum, I incline to think that sum a fair equivalent for the preceding year. But I shall leave the case open to proof of any specific agreement, or understanding, as to the exact sum to be paid. On a subsequent day, the Chief Justice declared that he still retained the opinion he had formed on Ihe first hearing of this case ; and that, as the evidence which had »nce been laid before him cdnvinced him ibat the rent reserved for the year 1818 form- ed the best criterion of the value of the pre- mises in 1817, he should hold the defendant liable to pay the sum of £40 for his use and occupation of them during that year. * * As this etise appsars to bavu been brought more than '>nce under tbo consideration of Mr. Forbes, and to hate engaged a good deal of bis attention, I caaiiot easily per- suade myself that be has taken an erroneous view of Jhe Uw applicable to it. Yet upon a Tf ry careful comparison of thojacts of if, with those of Cobby. Stokes, 8 East, 358, - ;;uu^;:3s *ncy uo s&iSi 50 tiiv in bwsr a p'Tjici re$emutaHce to na«h other in eM their material poinl8.~" NoN tam OVUM ovo siM!LB." Aod. ccmiuJy, the decision o( the 169 1019. Meaguer & Morris V. Flannery. 170 CASES IN THE SUPREME COURT, ) . . ! i 1819. January 22d. A lupplyingo merobaat who baa. been deprived of the proceeds of the Toyage,on the faith of which the vup- plies weie issued, by the fraudulent conduct of the planter, may sup- port an action, in the name ot that planter, against the party who misap^ plied the property which ought to have been deliver^ ed to the merchant. CoNNiCK against Dooling & Co. .A CTION to recover two years' rent of a fishing-room, on the French Shore, and sixty quintals of fish which were caught by plain- tiff, and were to have been delivered to Shannon, Levingston 4' Co., but were clan- destinely received by the defendants, and fraudulently delivered to their suppliers, Stuarts SfRennie, to i g prejudice oi Shan- non, JLevingston <^ Co. who are the real par- ties in this action. At the conclusion of the evidence on both sides, the Court stated the case to be of so much importance, as a precedent, that it should require reference to the books of Shannon, JLevingston Sf Co. to see the state of the accounts between that house and the plaintiff, and what balance had become due to them that year. On the following day, plaintiff's agent at- tended and laid a statement, as required by the Court ; by which it appeared that plain- tiff, in that year's dealings alone, had in- curred a balance of debt amounting to ii558 6s, 4d ; whereas the defendants had a credit upon the balance of their account with their suppliers, Stuarts & Rennie, of J£138. . , . J This statement being admitted, judgment was delivered as follows : Per Curiam. This action is for two prm- cipal items ; one for two years' hire of part of a fishing-room on the French-shore, charged at £12 per annum ; the other for sixty quintals of fish, said to have been made by the plaintiff, and smuggled, as it is Court of Eing*« Uenoli in €t>hh 4' Siokis^^i diractiy rs vsri- ancA with Mr. jFbrto's judgment, and aUogether repugnant to the principle upon which he professes to have fouaded it. '**™!S;'?^ f^JWm?m«mm URT, & Co. i' rent of a !, and sixty it by plain-' elivered to were clan- dants, and ' suppliers, ;e oi Shan- le real pat' ice on both to be of 80 snt, that it books of e the state ise and the ecome due *s agent at- equired by that plain- le, had in- )unting to id ants had ={r account jRennie, of judgment r two prin- lire of part inch-shore, J other for have been ed, as it is her repugnant ive foucded it. NEWFOUNDLAND. called* on board a schooner of the defend- «nt, Doolini^, instead of being delivered to Shannon 6f Co., the plaintiff's supplieis. The value of the rooms has been variously stated by the witnesses. 1 incline to think that the charge is not out of the way, supposing the rooms to be in tolerable order; and, therefore, J shall allow the first year's rent as a compensation for repairing the room, and admit the charge for the second, at the rate of £l2. With respect to the smuggling transactiony the two principal witnesses, Edmund Dunphy and James Conners, are completely in con- tradiction. Dunphy, who was in charge of Connick's room, swears that sixty quintals of fish were put on board Dooling's schoon- er, commanded by Conners* But Conners as positively swears, that all the fish brought ronnd by him was from iJoo/iMg"'* flake, and no part whatever from Connick's. The trans- action is discreditable to the plaintiff, who comes forward in the character of a dealer ; confessing, by his action, an attempt to de- fraud his suppliers. Did the matter, there- fore, rest between these parties, I should refuse the interposition of this Court, upoa the principle, that '• in pari delicto, meli- OR EST CONDITIO POSSIDENTIS." But I am aware that the representatives of the suppliers are ihereal parties to this action.The case rests entirely upon evidence ; and as the evidence is contradictory, it becomes the duty of the Court to weigh it with a careful hand, and de- '>/,rmine to which side the balance of credit belongs. To me it appears,that the defendants did receive the sixty quintals offish from Con- nick, with the knowledge that he was in- debted for his supplies, and that it was with the view of defrauding his merchants. The 5ituaiion iii which Dunphy was placed, ae 171 1819. CONNICK V. Pooling & Co. wmr^ >-».j>»kJv.i*«i** — ww.'AjawTr**-''- 172 181D it M i^f '^'i CONNICl£ O. DOOLINO & Co. CASfiB IN THE SUPREME COURT, master of the plaintiff's voyage, his age, and the clear manner in which he gave his evidence, convince me that he could not be deceived, and that he spoke the truth. His testimony is also corroborated by many im- portant circumstances, such as Connick having first brought round a quantity of Doolingy fish, which he delivered to Stuarts ^Rennie, for which wo freight was changed. Why should this very proper charge liave been omitted ? By the circumstance, related by Mr. Bemdea, of CowmVA;'* demanding mo- ney of l> icample to ation be- apliers, md costs. MEWVOUNDLANO* Baini:, Johnston & Co. against Alexan- der Chambers. Jr^ER Curiam. The plaintifls are mer- chant-suppliers for the fishery, and ad- vance necessaries to dealers at the out- harbours of this island, for which they re- ceive fish and oil in payment. They supplied, among others, Fraud 6c Sons of Trinity Bay, last summer, to a cpnsiderable amount, but receiving from them little more than one- half of the value of their advances ; and hearing that their fishery had been product- ive, they caused an inquiry into the cause, and learnt that they had put ofi" part of the proceeds of their voyage to the supercargo of a certain schooner, which had been sent round, by the defendant, to Trinity Bay,'for the purpose of obtaining fish and other pro- duce in exchange for provisions and goods. It appeared in evidence, that the defend- ant was not a supplier of Froud Sf Sons '^ that he had sent a schooner to Trinity Bay, in October last, and directed his supercai^o in general terms, to barter goods for fish, who conceived he might deal with any person that offered ; and under this impression, re- ceived thirty-five quintals of fish from Froud & SonSf without asking any questions about their suppliers, or the state of their accounts, or supposing such inquiry necessary. Under these circuttistances, the plaintiffs brought this action for the recovery of the value of the fish received by the defendant, for which ihey contended he was liable, under the usage and law of the fishery. The defendant, on th ^. other hand, maintained that he had a Tia!:bt to purchase from anv person who was in possession of the com- modity _8old ; and as he paid ftdl value for 173 1819. January 25tA. The town of Sf. •Tolin is a market overt ; ami, tliere- foro, the lieii of llie siipplyjiif; mer- chant upoti (lie produce of the voyage is divrst* ed by a bonaJUle sale of such pro^* duce ill this town. Secus in ihe oat- harbours, which are not markeU overt. ')' 174 I ( t » M: " 'I I "1 y I 1819. Bainb, JoilNx sroN & Co. V. Chambers. y I CASES IN THE SUPREME COURT, the fish in question, he was entitled to retain It. And he further insisted that it was not only a usual traffic to barter for tish at the out-harbours, but it was a great easement to planters to be enabled to sell at their own doors, without the risk of water-carriage, or the expense of freight. Jt is certainly the right of the owner of any goods to dispose of thein in any way that he pleases ; but the gist of the case before the Court is, who were the owners of the goods in question ? and what is the force and extent of that lien upon the actual or supposed existence of which, the merchant who advances the means of prose- cuting the fishery principally relies for his payment ? This is a question of the great- est consequence to the trade and fisheries of this island, as at present conducted ; for it is well known that they are, for the most part, carried on by means of necessaries fur- nished at the commencement of thO'fishing- season, to persons who are seldom possessed of any capital of their own, upon the faith of receiving the proceeds of the voyage in pay- ment for the supplies. It is a system of credit founded in good faith ; and it becomes the duty of the Court to cement this neces- sary confidence between the parties, and to guard it with vigilance from infraction by others. It has always been held that the regular supplier of necessaries for a fishing-voyage has a specific interest in the fish caught, to the value of hit supplies. It is a local usage growing out of the course of conducting the fishery, and was probably adopted from the maritime law of lien upon a ship, for neces- saries found and labour performed upon a foreign voyage (a). In the case of Cunnings (a) Sm the caae of Kelly v, Hut(c4 it, besides th** ii«^ ? . "& '^s a fishe- "■ents, and the flXaUol '% "^"-^ «'«- icts be is laid open to the f/??^ "ar- ^ppl.es, by his deaLr*"be,W n ."' '°? '"''•« «o any persons who malfff '"'^'"'"'c'l produce of the voyage" tit f «» buy the "Pon which the «,.£i' ■ ^""7 produce for payment and wh,*;^ 'I^r^'P^''^ 'oIie» created by his Weans » pi/ '''' " chiefly 'abour constitutes M a smtl. "*?■ P^'-''""' •necessary m«to,„; fw a fi^hllr*'"' '"^"'e Judgment for piaiw4^''"'^y- ■MMHH COURT, o"ltl be liabK ailed upon so ants* w (TQg . 'inion of^tliis' eg;*' usanfeat 'larAet overt, •of sale; in to trace the 'oad of fish J the publi, r purchaser. '' apply to sual places the purcha- >f receiving •erty, and, e may bwj buy it sub" tJant must ish he has } satisfied iai princi- ance sup- 's a fisbe- f the ele- •>gn mar- )ssofhig ;d to sell buy the produce ly relies chiefly •ersonai 1 Of the mrwfoundland; Alexander VnzGB.VLS.'UTi against William Dawe. .CTION to recover £(^ 6*., amount ofthe passage of a servant, all sjed to have been stopped in the bar of defendant to the use ofthe plaintifi*. had previously paid the amount to Mi s. Baine^ Johnston & Co., the owners of the vessel. After several evidences had been examined, and the par- ties heard, the Chief Justice said : — There is no proof of the money being ac- tually stopped by the defendant totheplain- tift''8 use, so as to make it an original obli- gation on his part to pay the money; and, therefore, the plaintiffs case is tnerely a collateral undertaking, and falls within the statute of frauds; and as there is no agree- ment in tvriting, in compliance with the directions of the statute, there must bejudg' ment for the defendant. ' ,. ' DuoGAN & Whit? agains$ Jqhn if^ Tbimingham & Co. ink CTIQN of account ; disputed ch^i^etl rtiiide by defendants againW plaintift' as follows J—- • V t 1/4 .--Commission on adVariclrf^ jt3^5 foi- purchase of a certain schbonfer,'fl per d^t; 2 September— jei 7 15*. JB. — Ditto on sale of schooner to Pember- ton, 2 March— £10. C. — A puncheon rum, said not delivered —£27 ly. — Short received of Mr. Macbraire for freight due plaintiffi- £l 14*. E. — Short received of Pemberton for sale of schooner — £23 13*. 2a 177 1819. Fdmuxry Mth. In Ibis cue, tbt Chief Juitice re^ • ognized ibo •!■• I Jta of frauds (20 Car. 2, c. 3), aa applicable lo this Country. February IS/A. A conunissioo of 2i per cunt, it •II that an agent is entitled to on th« purchase and sale of property for his principal, in the absence of any ex- press agreement between tbem oa that point. And a general agent is not responsible for the solvency of the purchaser. It is sufficieot that thn niirshaaar n>n_ in good credit at the time of salt. n^ IMAGE EVAIUATION TEST TARGET (MT-3) (f 4. V 1.0 I.I us lit Ui u lit III u 14.0 1 1^5 IIIIII.4 i i 25 2.2 2.0 1.8 1.6 150mm 7 -> O / /APPLIED j| IIVMBE . Inc ,^S 1653 East Main Street JSS -^ Rochester, NY 14609 USA J=r -^ Phone: 716/482-0300 .S^.ss Fax: 716/288-5989 e 1903. Applied Imaga. Inc . All Rightt R*Mrv«d ^ iV <\ ^!^ f\ ;\ 4^^ ^ i ' 4 y ) 178 1819. DuooAN ie Whitb «• J. F. TaiMiNG. HAM dc Co. CA9ES IN THE SUPREME COURT, Several witnesses were examined on each of the points in controversy between the parties, and the Chief Justice then delivered the following judgment : — The commission of 5 per cent, on purchase, as well as 5 per cent, on sale, is an unusual commission, and must be limited to two and-a-half per cent., instead of 6, as is the usage of such transactions in the absence of particular agreements. It is admitted that the defendants held a security upon the schooner, which was alsolnsured ; and, there- fore, there was no such great risk as was suffi- cient to warrant unusual interest. But an there was money due from plaintiffs to de- fendants, when the latter demanded the purchase-money of the schooner, in addition to what was before due them, I think they are fairly entitled to legal interest from the time of purchase up to the sale in March. The objections to the two next items of the account have not been sustained ; and as the defendants bad merely acted as ge- neral agents in selling the plaintifTs' schooner, wHhont warranting the stability of the pur- chaser, and as it afipears that Pemherton was in credit at the time of purchase, and, it is known, became in difficulties in the fall of the year, before the balance of ;£23 was paid, no blame or negligence can be imputed to the defendants on that account \ and that sum aUo must stand. II I JRT, led on each etween the !iuiulivered n purchase, an unusual ed to tuo S, as is the absence of [iiittcd that f upon the jand.thcre- [iswassufii- st. But SB tifls to (k- landed the in addition [ think they ?fit from the n March. 3xt items of lined ; and :ted as ge- 8* schooner, of the pur- Pemberton liase, and, it in the fall of S3 was paid, imputed to ; and that 4 NEWFOJNDLAND. John F. Triminoham &Co. fl^oins hh at pkaaurt, if tho party who •reeled the build- ing refute to re« novo it. after ba> Ting been regular- ly deaired to do CO. tiffs to adduce farther proof, a judgment, as above stated, was entered against tiem. HoYLEs & Other^fl^atWl John Bland, Esq.. Higli Sheriff. ^ fThli cue I. ilf.atm'baiim from Mr. F^be,^, notea, or minutes, of the trial.] Action for forcible entry, and pullinff orhannfT'^'' building used as a coCig! or house, for a public fire-engine. J he declaration contained two counts : first, under stat. 8th Hen. VJ. c. ; and the sir/rr^c.'^^' ^- Plea, Defendant admitted the fact of !?♦ f"?f *"«* P»»»ng down the building, and set forth, that theplace on which the trespass, &c. was committed was a/mWiVr shiprJoom, authorized, by statute, to be granted, or disposed of. by the Governor.^hat the defendant, as sheriff and bailiff of the crown, entered on the same for the purpose of re moving a house, or shed, which was placed there, withnnf ri«.k» — i: i i v , such effect; and that he did so remote the I )URT, lere can be ilinn of the et tiiis case )laintifl's to any they retaining I under the e nature of given for the i^kin- Igment, as then!. r Bland, n'< notes, or 1 pulling covering, counts : ; and the tss, quare i fart of ling, and trespass, os''room, nted, or rhattbe D crown. Be of re ) placed f had to love the NEWFOUNDLAND. BAme in a peaceable manner; and that is the trespass complained of. It appeared, durin;; the trial, thai the locus in quo was, in fact, part of a ship's room, and that permission had been given, by the then governor, in 1805, for an engine-house to be placed on it, removaule at pleas,:re. In the fire of I 'M (i, the house was removed, and the building, whic'i was lately removed by the defendant by order of the present Governor, had been since erected as an engine-house. OUTLINE OF rHAROB. Place, a Ships -room. — Surveyed 1804.— License of governor in 1805 for a leropumry building, on wheels. — Act of Parliament 1811. — Allotment of place as custom-house, in 1812.— 7>Fire in 1816, and old house remo- ved ; replaced shortly after, — Fire in J^ovem- ber, 1817, and other place assigned as cus- tom-house; and place in question disposed of, under .^cl^ 1811. — Notice to plaintiff in February last, and consequent order to take steps to remove thd house erected on ^iliips*- room. m 1010. lloTLKb&Otbtrt V, Bland. State nature of action. — Define trespass at common law. — Forcible entry a statutable trespass^ and also renders party liable to in- dictmeni. But this difference, that in action at suit of party, defendant may show a right qf entry and possession; but in indictment, which goes to the public injury, without re- ference to the rights of parties, violence can- not be justified. — Hawkins^ vol. 2, p. 29 ; Hd Term Rep. 295—6. As this is a private action, therefore, and capable Mi justification ; and«as a justinca- tion goes to the question of title, necessary 182 B ]819. Bo7LB8&Othera V. Bland. CASES IN THR SUPREME COURT, to take a review of ihe case with reference to title and right of entry. Place upon which engine-house stood was shtps-room, [See statute 51, Geo. III., and chart therem referred to.] As such ships'- room, incapable of private appropriation, even by license from the Governor.~^to. III., and luch ships*- >ropriation, r.^Statute 8 being so, w its being ^e property id, conse- was fixed how some ion, at the ley had no itained no in 1805, ense that emoval of :h permis- I. he posses- tenantcy issive oc- ntUled to led to no* ible at the nantcy ai moH may )arty, or linst the vr, nor in i uRenjf. hexojffi' NEWFOUNDLAND, ciOf to take possession of lands for the crown. — Sec Ist Black. Com. 343. A ser- vant may justify acting under order of the party entitled to the right of entry. — Argent V. Durrani, T. R. 408. Where the Crown is entitled by matter of record, it may enter without office, or pre- paratory proceeding. Not necessary to gc into the great powers of the Crown, as they are difficult to recon- cile in theory with the practice of the pre- sent day. If the Crown had a present right o/en/ry, the Sheriff, as the public bailiff, was justifiable in entering, in the same way as a private individual would have been justified, acting under the direction of ano- ther individual lawfully entitled to entry ; and the house, being a fixture, belonged to the Crown, and was liable to the same consi- deration as the ground upon which it stood. Observe, generally, upon the power and duty of a Sheriff, and responsibility as a high officer of the Crown ; to which the law im- putes not only no wrong, but an incapacity to do wrong. If the Sheriff abuses his trust, and dishonours the name o'f his master, he is doubly liable as an individual, and as a public officer abusing his trust. — See 2dJnsi, 205 — 6. Sheriff acts at his peril ; and if the crown have not a complete right and title of entry, he is a trespasser, however high the orders under which he may act, and liable to an action at suit of the party injured. And ev^niftbeCrowu have the right, yet if he enter with force, and without the so- lemnity of lawful proceeding, he is liable to a crimmai prosecution. Upon tne whole, the action is not main- tainable ; and the only question for the ju- ry is, whether the esffine-house stood unn^ the ships'-room at thw time it was removed 183 1019 Hot LBS & Olbari Bland. i Is . f • 184 CASES IN THE SUPREME COURT, 1810. by the Sheriffs—which is no questim at aU, And the jury cannot but find a verdict for HoTiKs&Oih.M the defendant, under the evidence before the Court. The Jury retired, and, in a minute or two, returned a verdict for defendant—" JVof V. Bland. April I OIL HoYLEs and Others agaimt John Bland. Esq., fl. S. J flE plaintiffs in this action now m^ved the Court to grant a new trial, on the ground, •hat the building in question, on (a) wliich the trespass (as laid in the plainlifls' d* da- ration) was committed, was the properlv of the plaintiffs, in that degree which entiiled them to remove the same from the locus m quo, or the soil whereon it stood. That the plea of liberum tettementum, set up by defendant, extends only as to right of soil. That the declaration of plaintiffs compri- ses a count fie bonis asporlatis; and that proof of such carrying away was laid before the Court and Jury at the trial. That such presumed proof (being found satisfactory to the Jury) would establish an excess of damage beyond what could be justified under the defendant's plea. That thi« part of the Ciase wa6 not, by the Court, sent to the Jury for their osfd o? l^ the Governor. • ! i i. t Per Curiam. — It is useless to t>tt)C6^d fi^- ther with respect to property st^dii)^ iirion ship's-rooms, as denned by the^attitef dt'st George III. Let the matter stand ov^r lOr the present. I shall cause the Govi^rhbi^ to be informed of the case, in order that mea- sures may be taken to protect the r|ghts of the Crown. -"^ •'•^'^^^ .•;,; .-1. j/iut -if,- ' 2b WhfM Ibc pro- perly ill tiiiputo belwoeo tli« par« ties appctrcd to ba part of • thip'wn room, th« Court •topped nil futtbar procMdiDga. 'h 180 CA8KS IN THB SUPBEME COURT, 1810. As there is said to be oilier property than i„ .h .. , } «". *^">'*-»ww». Mr. Chancey will make 'M^%r.a/' ^ sketch of li.e whole upon pa^,er. distin- «!«•» properly. &"'«"'»&. between Buch property as is, and such as iH not, upon public ground, and lay It before the Court on Monday morning If) .^/ec*. «-""•" * c^i-nrii""" «-"• Lsq., Higli Sheriff. O N the 19th of this month, Simms, for the N«ir trial ri f«Md: and ih« "T-"" .^i.'" '*"" "' ""•"» "luimi, atmms, lormc grouodt of such P'aintinH, moved for u new trial, on the r«rusal •uted in ground that the difcndant had used unneces- jjM^^by lb. Chief «apf.wo/iWic/i in removing the engine-house. which was proper consideration for the juri/ ; but that by the direction of the judge, no such point of evidence was left for the jury : and cited 2 East, Rep. 08. But the motion was rejected by the Court, for the following reasons : — The first count, for forcible entry, will not admit of any doubt. The issue is always upon the title, and not the force ; Vin. ab. title, "forcible entry "—article, "issue." As to the second count, the Court is of opi- nion that, from the nature of the building, and the license under which it was originally put up, while the plaintiffs were in possession of It, they might have removed the same without being liable for the value, or subject to any action on that account ; and, even after they were put out of possession, that the materials ofwhich the building was com- posed properly belonged to them; and, consequently, had the defendant exercised any wanton yiolence in removing them, he mieht have nenn linhlo f/^x 4k« ;»; u. might have done. 3ut the cage was not KT, NEWFOUNDLAND. 187 pprly than will mako ?r, diHtin- as 18, and 1, and lay morning r Bland, ns, for the I, on the t vnneces- ne-house, • ihejury ; judge, no the jury ; Jie Court, itry, will is always Vin. ah. "issue." is of opi- building, originally lOBsession the same or subject md, even ion, that was com- 01 ; and, exerciseu them, he was not rested upon this ground at the trial ; no proof whatever was adduced as to any asportavit by the defendant, orany unneces- sary injury to the materials in taking them down. There was a carpenter employed for the purpose of removing the building. lie says he was obliged to cut it to pieces, as it could not be removed entire ; and after it was taken down, that the materials were carried away, not by, or with the consent of, the defendant, but by some of the people of the town. Now, the plaintiffs had been notified to remove the building ; they not only neglected to do so, but virtually refused, and contended for a right to continue until ejected by process of law. i It was this supposed right which consti- tuted the main ground of the plaintiff 's case at the bar; although the Court is aware that that ground was ratherostensibiy taken for the purpose of eliciting the sense of the Court upon the power which has been exer- cised, and even claimed as a right, of the Sheriffs pulling down bouses by order of the government of the isln ^, than under any serious belief of its be a^j; sufficient to sustain their case. Upon this the Court sufficiently declared its opinion to the Jury. As the minor point was not urged at the trial, and the only evidence bearing upon it went to negative unnecessary force in taking down the building, or any (tsportavit by the defendant; and especially as the materials could have been but of little value from the time of their being originally put ; I think I shall do most justice, by refusiitg a new trial. J819 0. Bland. 180 I i 'II 18IP. Jntl0 9tk, Ap|>licaiion io the Court tn eii- forcti pavinoni, through ihe inoan!i of •Itacbtnsni, uf a dabi duo by an ■ibaant parly wh«» nad become iniol- veat, and alnoond- ed from Halilaz. [8ft p6tt.j • ■ CASES IN THE SUPREMiB COURT, Wm. & Henry Thomas asrniiist theOwucrs of (he Sloop Acadia, ROCEEDING in rem iiiuler the statute 4mhGco. 3, c. 07. Case.— 'J'he 8loop Acadia, John Peters, master, sailed from Halifax. N. .S., for St. John's, in the island of Newfoundland, in the month of December, 1810; and arrived on the 19th of the same month, a good deal damaged in her sails and rigging, and struck on the north head, at the entrance of the harbour. The cargo was discharged; but the sfvere season of the year not allowing the necessary repairs to be made to thehull» imtd the spnng of the following year, 1819, and the vessel not being sea-worthy until such repairs were made, the supercargo wrote to the owner at Halifax, and in the mean time, to prevent unnecessary expense, sent the crew to Halifax, on the 28th De- cember. Ir February last, the supercargo received a letter from William Kidston,oi Halifax, who bad a bottomree-bond upon the sloop Acadia, that the owner, Joseph Jfarquhar, bemg insolvent in his circumstan- ces, had departed from Halifax, and recom. mended the supercargo to obtain a freiirht ^d return to Halifax ; and mentioned that William Cullen, of St. John's, would supply a certain proportion of salt, sufficient to ballast the vessel. The plaintiffs were the consignees of the cargo and vessel, and have paid the necessary disbursements, amdunt- ing (o £90 9*. Qd, and after deducting fr%ht received at St. Johns, are still in credit to the amount of £47 17*. which sum thev proposed to William Ctdlen to pay them, but which being refused by him. and the^ oaving no means of repayment, now demand'. llicOHucrs the statute hn Petergf S., for St. indiand, in nd arrived good deal and struck iCe of the irged ; but I; allowing tbebullf ear, 1819, orthy until lupercargo nd in the y expense, 1 28th De- upercargo iidston, of »ond upon er, Joseph rcumstan- ad reconii^ a frei^;ht ionec* that lid supply Sicient to I were the and have , amdnnt- ingfrdght credit to Jum they ay them, and they demand. KSWFOUNDLAND. The Court took time to consider tli^ case ; and on the following day, the Chi f/ Justice donired that particular evidence nliould be luid before iiim as to the actual insolvency of Fftrquhar, and bis having absconded from Halifax ; and, also, of the powers delegated by bim to the supercargo. 180 1010. W..hll.THOMAS V. Th» Ownvri of lA« SiuO|i ACAUIA. JauebClivt against H. J. Holdsworth. In Error. " "N this day, a certain judgment, given by the Surrogate Court at Ferryland, was brought under review of this Court. The judgment was under £40. I^illy, for the party in whose favour the judgment had been given, objected, in the first place, to the jurisdiction of the Court; contending that the power given it by iUo. 49th Geo. 111., c. 67, of reviewing the judg- ments of the Surrogate Courts, was express- ly limited to judgments for sums exceedivg £40, and could not, consequently, apply to this case where the amount of the judgment was under £40. But should the opinion of the Court be even against him on this point, he next insisted that the judgment ought to be affirmed upon the merits of the case, which he shortly detailed. Simms, for plaintiff in error, stated, that the main objection to theproceedingR below, was the want of service of process upon the party to the cause. That the plaintiff in error, who was the administrator of Shannon^s estate, was never served with process^ but a writ of attachment issued against the estate tn rem, without no- ticioJ" him as the defendant ant! wns sf fvpH upon the salt; and that the cause was heard June 10. The Supr«m« Cniirt hai an ap. pelUltjariidicliim, aven in oaira whpra tlia juiHf* inent of ibe Court below iff vnder £40. (Hut ae* Jlitnten ». Home' man, lieciUail in Ihi* Supromi) Coiirl. '2i)ili May, 1023. > Tlia Mr- ▼ioe of an alt i.h- mani upon proppr^ ty ia a tujficient nnlica to llip owner of thai property of Ihft penileocy of* auit ralaliTe to if. tl«0 '4 In 1819. I , / * ^^»E» '"THB.SUKREUe COURT, «f If J* P*^ ^*^*"S even bad any reeular notice of the trial. The plaintiff in erroJ^ inat the salt had been attached, and meant coufdl^ke f"'^' *'" ^"•'' •^"t'forhe could take the necessary measures to do so. It was decided; and the salt sold at a season ced a^nd'V''^'" ',7? necessarily sacSfi^ ie:s\hTn'its;ll.fr^'^' ""' least ten pounds ^^In delivering judgment, the Chief Justice iJ^ !!t™l*? me impossible that the objec- tion which has been raised to the iurisdi^ !'«»^<^jhe Court m this case can be we» founded. This Court was expressly consU. tuted by act of Parliament, ^^TheSu^emP Court of Newfoundland;" and, as S iLlthS '" "^.' ^""^r"^' Cou^Uof Eng: iand,jt had an universal control in all caii ses anc^^over all Courts, within the hounX "n lesrifwer^i^'^T^ "^ ''' JurisdicSon, unless It were ousted by express words. The act of the 49th of the King, was. iA manv particu ars. merely affirma^ve of its geS authonty. Thus it allowed appeal! Tn all Courts 'wi: ^lJ"^g"^«"t of thTsuJr^ato ^om Jhp i "P'^T ^^"•'''' «"d inall cases *I00, to the King in Council. But it did not require this affirmative clause, to give either an appellate jurisdiction. By the fountain of appeal from the Supreme Courts law those superior Courts have appel- late jurisdiction from the inferior Courts It IS part of the constitutional law nfT* lana that there must reside somewhere a 1 COURT, ng present to J any regular ntiffin error, ivate channel, i, and meant ut before he res to do so^ il at a season arily sacrifi- t ten pounds ^hief Justice t the objec- the jurisdic. an be well ssly consti- lie Supreme f as such; rls of Jing- n all cau- le bounda- irfsdiction, rds. The s, in many its general eals in all Surrogate exceeded a all cases exceeded ut it did 'e, to give By the cil is the ae Courts ' common B appel- Courts. Jwhere a NEWFOUNDLAND. 19t 18(9. I! 'lll.-.ll '• ifllll. M supreme juridical authority to watch ovef. the proceedmgs of all inferior tribunals, and to keep the scales of justice even and uni- --" orra. 1 he same principle forms apart of „ ''' the law of every civilized state in the world ^*^^»^^^o"«- Were it otherwise, there woujd frequently be conflicting decisions, which must intro- duce a positive difference in the rules of justice--" ALIA LEX RoM^ ALIA AtHENIS." bo that a suitor would be sure to cain a cause m one Court which he would be as sure to lose in another- and that without the possibility of redress, the iud-- nient happened to be under a certain sum. iiut, to bring this hypothesis to a practical test, suppose an action to recover the pos- LTl""" ""/.? '^^'''.'^'^•^ plantation in thiL is- ntih. .k ^'^^^^ J"'S»n«^»ti«given on one side 01 the other, which judgment is not satisfac- tory ; will ,t be said there is rid power to appeal to, because the judgment is not "for a sum exceeding forty pounds?" Yet if he fifth section of the act be the onlu basis to rest an appeal on, the consequence would be, that an appeal to the Supreme Court or irorn thence to the Kiug in Council, could ffo onn''"^'';'; f"^ ^i'?"1 a property worth ^10,000 msght be adjudged in a summary way, without a chance of revision or appeal Having disposed of this preliminary ob- jection, his Honour added, that he felt no diflSculty whatever in affirming the judg- ment below upon the facts of the case, as the attachment of the property was suffi cient notice, and it becan^e the duty of the parties to have appeafea in the Surrogate Court w t^nn a reasonable time, and defended th^ '/ S' ^1 192 1810. June 12/A 'Th« 8ii|terearK0 of a vps«el beloiiK' ing lo • person who had iMconie insolfcnt, an •r in an action brought to recover monies eipended «u such vessels. CASES IN THE SUPttEME COURT, Wm. & II. Thomas against the Owners o! the Sloop Acadia, fL#N this day, some witnesses were pro- duced and examined on the several points upon which the Chief Justice had express- ed a wish, in the 9th instant, to obtain fur- ther information. His honour then obiserved, that he considered the owner as suflSciently represented by the supercargo ; and that as the debt was distinctly admitted by him to be due, the plaintiffs were clearly entitled to a judgment against a party who appeared to have absconded from Halifax, as an insolvent debtor. The nature of the debt, which gave the plaintiffs a lien upon the vessel, fur- nished, the Chief Justice added, a strong argmnent in favour of the plaintifls' claim to the relief they sought. July Tlth. An award set aeidp, because tha •rbitialors admit* ted, iifion verbal proof, an agree* ment which ihs alatufe of frauds requires tc be io writing. ; .; GossE, Pack & Fryer against Charles Kelly. HIS case had been submitted to arbitra- tors, under a rule of court, who had given in an award, which the defendant now sought to set aside, on the ground that an agreement, whicli the statute of frauds re- quired t ) be in writing, had been admitted upon mere verbal proof by the arbitrators, "who had also formed their judgment eitfire/^ tipon such agreement. Upon this statement bf facts, which was admitted on both sides, the Chief Justice deciated that the award was altogether void. lOURT, e Owners o! 38 were pro- 3veral points lad express- i obtain fur- m observed, sufficiently and tbat as by him to be Dntiiied to a appeared to an insolvent which gave vessel, fur- ;d, a strong iiis' claim to t Charles d to arbitra- had given ndant now und that an >f frauds re- }n admitted arbitrators, lent entirely Is statement both sides, t the award Newfoundland; CowELL & anoiher asraiiist Macbraire. 193 Ti HE plaintiffs were tenants, in common, of a certain plantation in this town, which tlicy leased in September, 1809, to the de- fendant, for the term of seven, fourteen, or t\venty-one years, at the yearly rent of£ 150. The leases were drawn in the usual form ; the lessor cpvenanting for quiet enjoyment, and the lessee to pay lent, and also to keep the premises in repair (destruction by fire, &c. excepted.) It also appeared that one of the lessors had insured a small amount on her interest. In November, 1817, the houses were burnt down ; and, in June fol- lowing, the defendant, who resides in Scot- land, caused notice to be given that he con- sidered the lease to be at an end. The plaintiff, Cowell, brought her action for the recovery of a year's rent after the fire, and obtained judgment. The Court afterwards, entertaining doubts of the propriety of that judgment, granted a new trial ; and the two lessors having join- ed in one action, the case was this day final- ly determined. Per Curiam. The Court was taken by surprise at the first hearing of this case, and relied altogether upon the authority of Pen- der v. Ainsleij & Rutter, 1 Term Rep. 312, as decided by Lord Mansfield. Upon com- paring that case, however, with the reason- ing of the Lord Chancellor in JBrowne v. Quilter, Ambl. 619, it appears that the two Courts did not entertain the same view of the liability of the tenant where the property was destroyed by fire ; the one holding that the lessee was bound by his covenant to pay rent, although he received no benefit from the lease ; the other, that ■ lie landlord be^ 2c laid. Auguit 0th. tTpon a new trial. lb« Chief Jtutice held that lh« destruction of the premises by fire eatitled tha lessee to surrender the lease, although he bad, in tho former trial, girea the lessor Judg- ment for a year'f rent duo and pay-^ able after the house had been burned. 191 1819. COWBLL 6C •oolber V. Macbrairb. Ph ^ r. // It CASES IN THE SUPREME COURT, ing boimd by his covenant to protect the tenant m the enjoyment of the property, an eviction hy fire was as much an interruption of Uiat enjoyment as if it had been occasion- od by any other event ; and that in sucli a case equity ought to relieve. it IS a little singular that a point which mast have been frequently raised, should remam unsettled to the present time : for tb€ cases since reported will be found to be as numerous on one side of the question as the other ;— the Law Courts holding the tenant io the rigour of his covenant f and equity releasing him, under considerations too slight to admit ofany reconciliation of principle. ♦1,^??'"*.? jny«eJf bound by the decisions of the iioglish Courts, m herever they are clear "r? .^^* ' ^^"°* ^^y "^"t 1 am rather glad to be released from the trammels of authority in this, and enabled to receive evidence of the mojs^e of the place; because I jntertoined an opinion, upon the first trial, the ouT ^^ **°^ ^*^* ^°*^ ^^^ practice X ^^i^J^^vedhjfaUtke evidence which has been laid before the Court, that after the de- ttructtne fires in 1816 and 1817, i/ie tenants, toAose Mouses had been destroyed, exercised the mscretton of surrendering their leases. The same practice was observed after the fire wluch %s stated to have happened about forty y^s a^o ; tmd this, in fact, has been invarf^ ably observed, without a question, until it r^i?"il"%H.*" ^»^ <^^e- It « also sta- ted by Mr. JLt%, who has practised many years aa a wota- public in this town, and 1*1 P'^P^'*? * «"^eat number of leases, that, wuiong!i 1^ has been sometimes suggested. ™,vT^« MivMgui uiiCGssaryf lo itilroduce «ny express exception against the payment I 1 aURT, 3 protect tlio property, an interruption en occasion- at in tmch a point which ised, should t time ; for found to be '■ question as bolding the snant ; and Qsiderations Qciliation of decisions of ey are clear 1 am rather trammels of to receive ,* because 1 e first trial, he practice which has ter the tie- the teHants, ^ercised the ases. The r the Jire about forty feen invari- n, until it is also sta- lised many town, and ases, that, suggested, introduce i payment las 1819. COWBLL & anotlter Macbeairb. NEWFOUNDLAND. of reni after the destruction of the property by fire, because it was universalty received and acted upon that such an event kft tlie tenant at liberty to surrender. Had the English law upon tke porat been less doubtful than it is, this Court ought not to hesitate upon the case as it now stands in evidence; for communis error facit JUS. I shall, therefore, let this judgment follow the usage of the place, sanctioned, as it is, by the decisions in equity. Judgment for the defendant. The King against Patrick Kouoa and Avgua22tU another. o< 'N this day, Cooie, on behalf of the Crown, and Simms, on the part of the de- fendants, bemg present, the C'eurt pronoun^- ced the following judgment : — It appears by the facts which have been laid m evidence, or admitted in argnment, before the Court, that the piece of ground forming the subjeet-matter of the present proceedings, was, upwards ef sixty years aga, in the possession of one Jlaines Howell, and has ever since continued in the occu'- paocy of himseli^ or of other persons claim^ ing under him. It also appears that the ground lies at the bock of the Ordnance Yard, and falls within the provisions of a certain order made by the local government in the year 1760. It would seem that, in consequence of certain: alleged abuses, the permission which had been formerly given to the soldiers of the garrison to build huts upon the vacMilt inpntmi) »flMpr>nf fin JCViWF H^iUiam, was at that time revoked by the Governor ; and that six houses, which had Ao advene pos- stMion of land in Ihii country for sixty years.ia • bar to the rightioftha (Jroum. And the aame kind of poi> aeaaionfor Meventy yearu, will deprira the Cro«rn of ila right of entry upon ^080 lauda. i9e ( • 1819. The Kino V. KOUOB. CASES IK THE SUPREME COURT, been left undemolished by the French, after the evacuation of the fort (amon- which Tn'^i^tfT *•""" ''^"^/"° "P«" the ground f!rfi P* '^^* '^?'^.' ^' ">^ ^'•d*^'' relates, suf- lered to remain m the possession of the re- spective occupants, upon their undertaking not to sell iquor to the soldiers, and that tlie house should be removed at their de- cease Hov far the parties in possession agreed to hold upon such terms, is nowhere mentioned ; but there is a short note, pre- served among the records at the Government- office, which refers to the permission given toBoweil, and states that a similar indul- gence was afterwards continued to his widow Pursuing the history of the case agreeably to the order of its dates, it appears that some years after the above transactions, a part of the ground which had been occupied vL rt?* ""^^ *^^^^ ^»'« ^^^ ordnaSce- yard, by the mere act of the officer then in command of the department, and theresidue was lett in the peaceable possession of the partRi, and has so continued, without any dispute or question as to the title, until the Eltr^Ar^-S^^^'^Ss were instituted on the part of the Crown. ♦T. Jl""^'ll^! P'fP^^' ''^^^> ^o notice, that in the year 1804, the Governor, haviig it n contemplation to dispose of certain ships^- room, situated in St. John's, caused a survey and plan of thrown to be made, in whic J plan the ground now claimed is laid down and numbered aa private property Upon these facts, a presumptive title is set up, on behalf of the Crown, to the ground m question ; and the defendants are called upon to show the title upon which thev airj • ^'^ 't .'''^'' ^^"^^^ the defend^ ants reiv unnn thf» I^ify^K -i?xi- --• and require that a complete title for the 1 I ! -OURT, ?'rench, after nong wliicli I the ground relates, sut- >n of the re- undcrtaking !r8, and that at their de- i possession , IS nowhere rt note, pre- rovernment- ission given milar indul- ) his widow, le agreeably ppears that nsactions, a 3n occupied i ordnance- :er then in the residue ssion of the ithout any , until the ited on the ice, that in lying it in ain ships'- sd a survey \ in which laid down • ve title is he ground are called hich they le defend- ossession, e for the I NEWFOUNDLAND, Crown should be made out in conformity with the statute of James. The nature of the defence imposes upon the Court the ne- cessity of determining, in limine, a very im- portdut question of law, viz., how far t/te subject can claim any property/ whatever in the soil of this island ; and whether the statutes for limiting the rights of the Crown in real actions can be considered as applicable here f We are informed by Mr. Reeves, in his History of Newfoundland, that thequestioii of property had often been agitated, but never finally determined. Mr. Fane, the law-adviser to the board of trade, had, in- deed, gone so far as to admitsomethinglike a life-interest in the party in possession of the land ; and from a series of direct ques- tions which were afterwards put to Sir Philip Yorke, the Attorney General, it was hoped that such information might be extracted from that great lawyer as would lay this interesting question at rest. The Attorney-General, however, never an- swered the points which had been referred to him ; and they remained, says JVlr. Reeves, to be discussed in after-times. Jt is not easy to assign an adequate cause for the disinclination shown at that day ei- ther to admit or to deny the right of real property in this island. The statute of William had then passed, and whatever might have been the former policy of prohi- biting a sedentary fishery, it was virtually abandoned by that law. Of all evils in so- ciety, uncertainty in the law is amongst the greatest, and there cannot be any uncertain- ty more distressing than that of the right by tvhich a man holds his habitation. This island is one of the few possessions which were originally acquired to the Crown of England by the right of occupancy ; and 197 181f). The King V. KuVUH. I 193 1819. Th« KiN<» V. KOVGH* CASES IN THE SUPREME COURT, it is liable to all those considerations which apply to that species of colonization. The right to the soil rests in the King, as the Sove- reign of the state, by whose means the posses- won is supposed to have been acquired, and IS, m fact, maintained. In all the other plan., tations this right is preserved to the Crown, and in virtue thereof, royal grants and other alienations are made; but in this island it has been conveyed away to the exclusive uses of the fishery. It is this circumstance which has created the peculiarity in the tenure of the soil in Newfoundland, and cuused all the difficulty in the discussions about property. The statute of William throws open all the shores, rivers, and oth^r convenient places for the fishery, to all His Majesty's subjects in common, but with an express saving of the private rights of indi- viduals. The act recites, that since the year 1685 several inhabitants had possessed themselves of rooms and places which had before belonged to fishing-ships, and directs that all such rooms shall be restored to public use. The inference, then, would na- turally follow, that such as were possessed uZ 'he year 1685, were not to be dis- turbed. But the act goes on to declare, in express terms, that all such persons who/ since the year 1685, have built, or at any luture time shall build, or make, any rooms or places for fishing, " shall and may peace- ably and quietly enjoy the same to his op their own use, without any disturbance from any person or persons whatever." The statute of William does not define the quantity or quality of estates ; but it fully recognizes the right of quiet possession, which supposes property of some kind; and in this it IS confirmed by the statute passed in 1811, for sanctioning the sale of the ships' -rooms, RT, ons which on. The theSove- be posses- lired, and ther plan^ le Crown, and other island it exclusive urastance ty in the and, and scussions William and other ;o all His t with an s of indi- ince the K)S8essed hich had d directs stored to ronld na- •ossessed be dis- JcJare, in ms who/ V at any ly rooms y peace- to his or turbance ;ver." efine the t it fully M, which id in this in 181 1, KEWFOUNDLAND. which directs such rooms to he " granted, let, and possessed, as private properti/, in like manner as other portions of land in New- foundland.'' lu the statute for confirming the existing treaty with the United States, the right of settling upon such parts of the island as the Americans are permitted to use for fishing, is reserved to His Majesty's sub- jects ; and it is also «igreed that, after such settlement, the Amerians shall no longer use them without the permission of the inhabit- ants or proprietors* By a decision, also, of this Court, affirmed by the Regent in Coun- cil, so late as last May, the right of private property in the soil of this island m judicially acknotvledged. But it is unnecessary to multiply instances, or to look further than the statute of William, which is, at this mo- ment, the great title-deed of all the valuable fishing establithments in this island, and which creates a facility of acquiring and transferring property in Newfoundland, al- together unknown to any other portion of the King's dominions. It is to be observed, however, that the statute of William only relates to such parts of this island, as are actually available to the fishery; the other parts remain within the power of the Crown to grant away, or to retain, at pleasure. Several written instruments, in the nature of grants, from different Governors, have been laid in evidence; and, among others, a grant from Admiral Edwards to Winter, of apiece of ground adjacent to the one in question, and, also, within the boundaries of Fort William, as described in the order of 1760. These instruments do not bear date earlier than the year 1757, but they refer to others of a much earlier time \ and one in particu- lar recites a grant as having b"jn made by 199 1819. The Kino V. KouoK. tl 200 t- inifl. CASES IN THE SUMEME COUBT. pn'f«< in llio rei-n of Clinrlps II • i. th.it Hie rents ,?Lm^f ■',"''™' ''"y. ""'I ther Co m?'v ext^n ';" ^ '""" "''""= i*'"- areappliSe!''no49'K?.'' 'j- »' "'.^^ • Jlct under ivl i,l. .; ,' ■"'? '^"•K-tlie the laws o"L^I„".,ri natnre acco.,lh,g ,„ ye applied to NeX„rdl»J^."'^^X"rV"; wc// in resoect nft/,. y. Crown, as as the SZf^fV,Zt!l-','''^Tf'''''- apply also. 1 knnw^ i- '""'."• *'"'"''' ''«t Xi are not provrde'MltV"'" ™'?'''^- 'aws,thevareenfnri„i , *'''"''^^« '""al ^«re.t,.^estat„te'"oft«4rap;;;^'o''Z- .f*N™^*:dT5°'%t'whS""*' '•*»*"■• H»to,y (t)Tll.21stJ„.,.c.,4. Tl,.„_„..v. ; .. ^«... -a. Fir.,. ^.., y /."X'n;',-;-,-*; o^Ki.» E COURT, II * It cnii- I Rroat number sent (Jay, and fn lorm one of tnue. Since, e island have, anLs of those i" within the s which aj)ply its derived, or '•' them, must common law s of the Mo- fnr as they e Kinff—tho >'ign of Kioi; :. I. C. 14; I, i NEWFOUNDLAND. case before me, I must try the title now set up for the Crown by its own strength, since tiie defendants have shown an undisturbed possession of more than twenty years. The evidence to support the pammount title of I the C.own, consists merely of an order and memorandum found amon^ the records of ^ the Govemment-oifice, which are supposed to affect the present case, either by bringing; the ground in question within the boundaries of Fort William, or by raising a presumption that the occupancy of Hmvell was only per- missive at the date of the order. Could either of these points be established, or even corroborated, by other evidence, it would have an important bearing upon the case ; but, unsupported as they are by any regular proof, and completely at variance with the fact of the boundary of the fort, as it is record- ed in the government chart of 1804, 1 cannot safely consider the unsupported dictum of fiu order as conclusive upon a point which would involve in its consequences a pretty large bection f lands in ttiis coontry tv a subject, will furnish him with <« ampleU and petfixt Utle to those lends, even aoojaif the Crown ittelft under the 9Ui Geo. III. o. 16. It should, however, ba borne in mind, that this doe« uIqs doe? not apply to such lands as, by the lOtb & lltb of William III., e. 26, are exclusively appropritted. and pvtieululy dvdicatsd, (o tk» mm oftlu^theritsi 2d 201 1819. The Kino V. Kouoh; /. aoa in Ciii* 'V THE SUPREME C0I,«T, however, to beHevl Vh-^* • " - °' ^""^ *'''»*'y» island could brWh''» ^°- "''""=• «''*''« public fortifications 'aSiM«^''" "^'^^ *'^^ to suppose that ihn 1 '• '^ '"orenutur.; I^een 1^,1 i„ J^Znf"^'' "self mi^ht have tenantry of iwJT '""''?"• '^'^'"^ the ment-o/fice, wU^.l, *^ 1? '^ ^" the Govern- ^nowIedffmenT f om iP'^'nl ''^« "" «<^- effect, or Soi.Mt/t'^''' ^""'^'^ *« that ^^itnesses, vho wJi K^^'"^ ^"^^^« '« the «»ftht naturllly Iffnfn" T«5*'^"'-«' «"J cumstancr 1^,; 1'"^°T;^^ ""^ «"<^h a cir- a"y under the eye^Til"^ ^^ l'^^" ^^ntinu- has been staicd and n^^ Garrison; and, as tban once been the Ik- **^?'^^' ''^^ '"^''e the proprietors and thro'i ''"^'^^ »^^*^«en meantime, it has olnlv ^'^^'!?;ce- In the J»and, without r/n?/^P^''^'* from hand to ors for a?uIUo::fde/aton^%''"i^P^^«^^^^ disposition to uDl,o?ri ? Fjelmg every Crown, and at th.J **? "S^'^^s of the claim has OeenTou^,";'^^- .^^^^ P^f e„t been proved that thn nlf i' , •'."•"' " I"*' possession of tr«ound^n? *'''' ^'''* ''*'' " nantcy, and th„.^? "eknowledgment of te. dopant cLts on2e'a""«- "''"^ li ■ ' l>p correctly dc- •y Capt. Palliser, y the ground in ind which, it is itcd by Admiral not very easy, Governor of the >. give away the IS more nutiir.il tself might have 'on, 'i'iiat the nissive, we are J intheGovem- »j? like an ac- himself to that known to the Jighbours, and of such a cir- heen continu- fison ; and, as Jed, has more treaty between ance. In the i from hand to ' to title, and 5sent possess- Feeling every ghts of the 1 ''om^ justice : ■' present '-iii^iX it has 'S have had a 'ards of sixty gment ofte- 1 the protec- ates against NEWFOUNDLAND. 203 John Ryan against W. & U. TuoMAf. 10(9. J. n E parties held conterminous parts of the Hea-shore; and the plaintiti' left, on his side, a cove, or space of shore and water, without erecting any building thereon. — Tho defendant!!! built wharf ut the extremi- •ty of their bouiidury, and yet insist on ma- king use of the cove which the pluintifT had left for his own use. The right to this cove formed, therefore, the sole subject of the present action. Several witnesses were ex- amined, upon whose testimony the Chief Justice declared — That the plaintiff having been in the pos- session and occupancy of the premises for more than twenty years, had a eood title un- , til the contrary he made out oh me part of the crown^ or the public. That the occasional use which had been made of the water lying over the cove, by tba defendants, did not amount to such an interruption of the plain- tiffs possession as would destroy his title, or found a claim in defendants to use it in common with plaintifi' as a matter of right. That it had appeared, in another case, that it was not unusual for persons living adjoin- ing to each other to allow the use of water which was not immediately wanted ; but that it would shake the fonndationa of all property to suppose such an indulgence could grow into a nght. And that, there- fore, leaving the public rights to be pursued in such way as mny be deemed proper by parties concerned, he should determine this case in favour of the plaintiff; though, as no notice had been given to defendants to discontinue the use of the water, the dama- ges, or rent, for the use and occupation must be merely nominal ; and each party must pay bis own costs. Avtfust U$t* , . Twtnly yeirk undiHlurbtd pof ••ssion of ft cor« will entbU iba ptily wboliaihad 8uch possetsion lo sustain an aelioa ■gainst a wroog- doer. ft 904 d iUi r' m i\ ^ nvaned Ibe judg- niffltoif(|ieSur^S. •miWdUitttiiere icmlmer to siiiiajii' tiMverdicU 1\ 1'^ 1 CASES IV THE SUSBEMB COUBT« Parkin & Anderson appellants, PoNNELi ^^ Others respon^eiils,, Coi'a^tSb^rTal'^^ *'^ '"''^^^*^ It appeared, from the transcript ofthcDro- ceedmgsin the Court below, that%n the L7h of jFanuary last, Bomell and partners sued W jX"i °y«i"?^e« against>c«wA Por^^W o?^^ft iT** ^«^f r* *^ '^^^^^^^r the sum n^iiVA^ '^*'' ?"^ **»«* 'he cause was sub- tifl Li '• V-^^* .''l® <^efendants should pay So „Tf ^J- ^*P^'''^' ' ''»« «"™ of forty S^cot'oter ""^^^^ ^' '^"^'^^-^ -^ deseed ^\\'l°! "''' P^^'^^V^he Ch^f Justice oecreed^ that so much of the judgment be- low 98 adjudges the sum of £18 17? to be dueto the plaintiffs by the defendants "> «p/wwe* " together with the costs of action should be affirmed ; but that so rnuch of £40 '-r 3- '^^"^^^* *»»« further sum of ,W i**^® ^^*"^ ^^""""^ •'een found by the pUmtiffs, or any wi^/^we whatemr laid be^ ch^«Tf Ih *'2*'^ '^ '^^ «»** ^^^"^''^'•y to the B COUBT« ftEWfOtVUDLAllD. aQ& appellants) spopde^its,, the Surrogate -riptofthepro* latt on the 19th partners sued Josiah Pmkin Jcover the sum ause was sub- found by their ts should pay is seventeeen sum of forty damages; and J Chi^ Justice judgment be- 8 17*. to be endants **for ►sts of action, so much of Pther sum of ^ould be re- found by the le part of the v«r laid be* trary to the i|f put such Andrews against And.bews« jf^CTION to recover the possession of a certain plantation situate at Port-de-Grave. Several witnesses were examined, from whose testimony it appeared, that the party under whom the plaintiff claimed^ had been in possession of the property in dispute for more than twenty years, and had often been heard to say that he had made a will, and therein devised this property to the plaintiff* Upon this evidence the Chief Justice de* cided, that the room should belong to the plaintiff, agreeably to the supposed will of William Andrews, But that, from the length of time which had been suffered to elapse, all questions of rent should be laid out of the case, and the judgment should be merely for possession of the property. lyiicHAEL Dunn against Rodebt Brooks, j^ . , 191^ November 4th. Oral testimony of the conleotfl of a will which could not be fouDd, ad- Diitled by the Chief JHUice; and judgment given bjr him according lo the directions of the will so profed. .Action of trespasses; damages £ftO, and to recover possession of certain premi- mises in St. John's. Simmsy for plaintiff, states, that in June last, the plaintiff took a lease from the de- fendant of certain property in St. John's, on condition of his paying the arrearages of fent due from the former tenant, and also future rent. Tha^ plaintiff had paid the ar- rearages, and was in possession, when the house was burnt down in July last. That the plaintiff himself was at the Labrador, carrying on his fishery, when the fire took place ; and that his wife, on being applied tt\ aai#l aha t*e\n\A Aa nottiincr nn#i1 how kna- band's return. But that, notwithstanding this declaiatioa ou her part, the defendant The decision of a cause postponed by the Chief JuU- ice, uuder an «x- peelaiion that a bill was in progress in Parliament/ the provisions of which were to be retro'* tpective, & would, consequently, bear upon the questioB DOW ID dispute* 206 CASES IN THE SUI»REME COURT, took possession of the ground then lvm stands, is tit to retain it is within a bill ex- similar ca- d of trade, 1 officially te for the island, as purpose of fit should * a retro- e any de- ^ this day the case when the effectual William Newman against Thomas Meagher and Others. Jj HIS was a summary proceeding in cove- nant, for the purpose of compelling the de- fendants to rebuild certain houses and tene- ments situated in this town, and which were destroyed by the fire which consumed a considerable part of the town on the night of the nineteenth of July last. The parties considering the case suffici- ently raised for the consideration of the Court, by their written statements and ad- missions, the same came on to be heard this day; when, after having attended to the arguments which were urged on both sides, the Chief Justice delivered the following decision upon it : From the documents which have been laid before the Court, and the admissions of the parties, I collect that the houses and the other buildings which form the subject- matter of this action, were leased by the plaintiff to Andrew 2/iomfan and Alexander Hill, by deed, dated in 1801, for the term of twenty-one years, at the rent of £250 per annum, with a general covenant on the part of the lessees to repair, and without any reservation against fire. That after some intermediate assignments the premises came to the defendants as assignees (in fact at least), and were in their possession at the time of the fire in July last, when they were entirely consumed. Objections have been raised to the liability of the defendants, upon the grounds of informalities in the con- veyance to their immediate assignors. It is not denied, however, that they were in nrkdOOBCmn nf t^-tt^ rkvirrinnl \^n£,^ .-.» J . : .1 — £---•"'• itv-n ijt hti\j vrsigtiiui Jcabc, ami uiiiil. rent to the plaintiff, agreeably to its pro- visions ; and it may be the less necessary 1819. November 22rf, Tlie dfstructiflii of premiset by fire relfasps the l<>»8F'e of such prennsps frono ail the cov6> tiiints contained in tlie Itase, if he thinks proper to uurrrndfr it, iin't<>r the custom uf this Ion II. soe Nbwman 0. Mbaghbr and OlbMI. «lt C4SEJ Itt TBI tVnEME COUBT. principle whar~ed Z"!"'-'''"'', •I>« Court ia .imil^Pra™,""'"""" "^ .oSntttfelb?ern?„r« ties produced tlieir mS^ «nj ""* P.": to the concaitent test m^/!.f '' "PPea'ed W ofTh "™' *o ••« <'i"p«te5^"",h A express exception against fire • an^ u ™ fS' ",7! P™<=« V- himllTd'osot En '! il^: JtheMS'eTffecTlr^'''"^ P«""' jtshonld.0 rvVt^'aL'eirrneTii'' l«- thi case befi;e-;;;^Th;,-- '--^ f : \ COURT, 9 1 feel myself •pon the same he decision of 'arson, it was ation of wit- residence in d to have ac- e of its local se has a right mt of Us be- nt was again the case of ished to its a point de- t could not ch the par- >d appealed fery person Court, that d» that the mrntdown, ade against rrender hisi all future of decision and, that to rejbuild r(JBtilhck ere w^uld •e les^ee^s '«ty by an and it is o in Eng- ? prevail asonwhy n deter- les, as a udve. Dveaant. ( '■: NSWFOUNDLANO. ed to repair ; there is certainly a plain dis- tinction between repairmff and rebuilding ; and the Courts, in determining for the first time, that a covenant to perform the one, extended to the performance of the other, must certainly ha,ve so determined upon the princ'ple of such being the intention of the parties to the covenant ; and, by the same rule, they would have made a contrary decision, if that intention had appeared otherwise. Indeed, the intention of parties is the only just criterion in determining con- tracts which do not interfere with positive laws. The Taw of landlord and tenant, with their various rights and liabilities, as observed in England, is very imperfectly understood in this Island. Deeds have most commonly been drawn from old precedents, by persons unskilled in the law, and, consequently, unaware of the technical force of what they copied. It is, besides, the constant practice here, to let houses to the utmost extent of their value. If the tenant be liable to rebuild, he must insure the buildings ; and, from their being situated in a wooden town, close- ly built, in a country requiring fires all the year, and without any further legal provi- sion for extinguishing fire than if such a casualty were not within the scope of human probability, the insurance must necessarily make a large addition to the rent. These are cu'cumstances of radical difference be- tween houses situated in England and this island, which cannot but be taken into ac- count in collecting the intention of parties to a lease ; and, considering them all, to- gether with the general understanding which prevails in the place, I hold this case to be within the local custom ; and th^t the de- fendants, having tendered their lease imme- 2e 209 1819. Newman Meagher and oiheii. y of fish^from bdlsfor the amount; and as this action wa^ ««(ne merchants, ^^r the amount of the carn-ft nf fioK . . -'.o were not only Under SUch iLtn.rHnni^ f Pu '' P*'^''"''^*' ^K(, that he was defendnnf« . l ' °°®' ^^^ the use of the -r.g as au agent. ,heir sino '^H "^ f *?"."^ ^^^^^ °" ^^avd but seem, also, "/^'^ siup, and attached in this cause thp from the whole ^ourt cons dered the cant^i,. i«^ ! ' . n?t°:nSs ""'''- ^^' ^efen:tet^;;- rxt^^^^^^^ guilty of a breach of his i«s.rucUo„. 1, 1, Kh°^ ""' r*"*' J''' ■«•»' *"»» v«8el of the principal under the e" oec^I i«» ^ * ^ " •'"PP"* '"' ''«■"' *»•« actually now there or his benefit ZcTf f^^r ^''.fJ'' P'^ '" '». ""J « the seller for it. siaci. h» -J !•."••>,„ L^^'/^ff'"* ''«'d him also liable to ,,.u article. ' "'"'''^ ^"""'^ «''h«f «o do w, or tp return "th'e ■^ A , imi i mh i ■"i'-* J«*KI;S!i*eaRa«wfniataM»i«iw COURT, by discharged in it. inst COSNARD urn of X 1,500 at beyond tlie ly person ap- alf. VVJiere- cester, wbidi, n laden, had 16 before the had certain Its touching i prayed the i was autho- tpearance to roduced his that he, to- a resident the defend- , and draw action wag h procured ? use of the ?n on board cause, the nipeteut to whereupon lit Was given, paid in bills, ireign princio 19 agent was oo board th« 'Or it, and is liable to pay retura 'tbs NEWFOUNDLAND. the master appeared, and denied the cause of action. Jo/m Boyd, for himself and partners, explains the nature of the case, and calls several witnesses to support his statement. Simms conducts the case for defendant?, and contends that they purchased the fish from Lcmessurier, and have nothing to do with his agreements or purchases elsewhere. To prove the usage of the place, with re- spect to purchases and sales by commission- merchants, some witnesses were produced and examined. Per Curiam. — Upon the facts which have been laid in evidence, the question raised for the consideration of the Court is, how far the defendants are liable to the plaintiffs for the value of a cargo offish delivered by them on board the defendants' ship; and whether Lemessurier, who contracted for such cargo, is to be considered, in reference to the plaintiffs, as a principal, or an agent of the defendants. In a few words, to whom was the credit given? The principle of law is very clear, that where one person contracts with another on behalf of a third party, and discloses that fact at the time, he is not generally liable on f .ch contract. But the loose manner in which agreements are frequently managed, and the consequent difficulty of ascertaining the real intentions of the parties, make the application of the principle not quite so cleaif ; and this is precisely the difficulty in the case before me. The distinction between cont" mission-merchants and other agents, which is sought to be established upon a suggestion which fell from one of^lhe judges in the cas« rtf PntfifQQtk V frandfiJSfinim flS RfiSt€iSi\ — a « ,^„ — -5 ., ^ ^ yp is not founded oa the authority of that cas^ nor in anything which will bear the namd 211 1819. Baine, John- ston & Co. V. CoSNARD & Janvrin.] li j' SIS 1819. Bainb, John- «TON & C©, V. COSNARO & CAMS IN THE SUPREME COURT, a&'^'* ^T]y* « »"^'-<^hant residing agen?''herT^ ^¥l''^^^ ^"'"^^'^ through hin foreii 1 • J^^ ^^»^''*' disinclination of .Vr7J^ "^^i-chants to do so, may afford a tl e casr n.t A '" V^^^'^at'^g the evidence of facts rornnnr^'"^ !"^'^^- ^^^^ Particular ;£iTa=K",-3,;s.;,S: knerrJ^rfJrr-^'' '"'« proof tttSy JMiew the defendants as the rpil nart.Vo • ^ that i«»««,„>, ,vas merely an TZ' im^Mumr appears, by his evidencT to Hj • .; a'tnough it is not expressly so sla. in .h" "'*,"'"** *'"'<='' passed between°I,em conrirfp^i^k- *?? ""y- '"^eed, that he ca^o a,, .r*" ''■ "■* ?"'•<=''«»«>• of the nicated w?th V!: **^'.**»ereupon, commu- S'''.r>J'^:.f?'''^r'^. ^ho wrote to iiaformed wh«??K ''^*^ **" ^^'^^^ ' «»^' being ¥uomea what they were, he desired him to I i ■V IOURT» NEWFOUNDLAND. 213 lant residin<;^ through hJH inclination of nay afford a hie intention 5 evidence of he particular are, 1 ihink, t conclusion, ring to such 1 occupation 3fore the ar- le plaintiffs of (he de- •t, and they » fact, they he agency ?dit. This >f that they 1 parties in and knew, y an agent. idence, to lew him to sly so sta* iveen them f the LeU , that he iser of the hat he re- he was re- Boyd had Lemessu- spoke to 1 that he een shil- commu. ^rote to d, being d him to trmsuU the masltr before he gave a definitive answer. Are these like the acts of a mer- chant acting for himself in a transaction with another merchant of this town? Is it the act of a resident principal contracting for himself? But there is one other fact which appears to me to be conclusive that JLe* mfssurier was regarded by the plaintiffs merely as the agent of the defendants ; and it is this : After Lemessurier had agreed with them for the two thousand quintals of mer- chantable fish, Meniet the master, agreed with Jioyd for a farther quantity of Madeira fish, to complete the Leicester's cargo ; and he agreed without noticing Lemessurier or mentioning anything as to the mode of pay- ment, which he admits, however, was to be by bills on London, in the sam^ way as for the other parts of the cargo. What am 1 to infer from this to have been the understand- ing of the plaintiffs all along, but that they were loading a cargo of fish for the defend- ants, to be paid for by bills of their providing ? The Madeira fish was either sold to the defendants, or to the master, or to Lemes- surier; Lemessurier disclaims all connex- ion whatever with this part of the transac- tion ; and it is proved that he was neither consulted by the master, nor had any com- munication with Boyd. It is hardly to be presumed that it was sold to the master upon his personal credit ; and we are forced to conclude that it was delivered upon the cre- dit of the defendants, and upon the faith of receiving those bills which they had autho- rized the master to draw in payment on theif correspondents in London. It was to these bills that the credit was really given; they are the connecting link between the plain- tiffs and the defendants throughout the whcle transactioo, both with respect to the fish 1019. Bainr, John- STUN & Cu. V COSNAKD Sb Janvkin. : .1 2fi JJatne, John aroN & Co. v. COSNARD & Janvhin, I I/: :| CASES IN THE SUPREME COURT, snpplied (brouffh the master and thronirl. J^emcssuner. Between the two I ran "re no substantial distinction. The far li^v wi^h vh.ch the piai.titrs agreed to furnis aVa he mn i^"'"!'*^ of fish, at the bare Cl of the master, whom they did not know is a pretty strong proof that they looked o;er to Prmcpals. whom they did know ; and ha^ vhi^h":uV^'\"r.'' ^^ «» "nde;.tand ng >vhich, although li IS not made to a^oear bv IVZl^TT' "^'•'^^^ " P.-.n:p'u.>n a^ e s o the d f"?''' ."^'^ they known tlr.^« .f fu • ^^^" '""•'^ particular in the surfel aLMT"* ««'*^!"^^"t. both with w! surier ancj the master IVhon r^ I! etc" t5"' ^'i-^ '^•- •' '«^''"» ^-r the i^P S /'/ ''T^'^ '^*^ principals, and iTimiU ,f •'''l'"P''"'''y ^«'"ff the same to I idmtiffs. It js because he considered thev v^ful^jf apprized of Ins characteTaTa^enJ rt f 7'*r>[*>'- ^hom he acted? ' J he defendants have placed a good deal of reliance upon the delivery of tife rece n?s on*bo:r^'r 7 '' '^'^ ^^ ^'^ '^ "'-' «"X on ooaui to Lemessurier ; but the clerk nf the plamt.ffs, who was called by the defend fn L'^'"'? '^'' ^'^^ ••^^^•Pl« w^e del vered hi if """^'/^"''se of business, and whhout the knowledge oi Boyd, who ii the only one of the plamtifts now in the island. As soon- saicf ?rf ''"' '"^^''"^^ ^f ^'^^ circumstance!he said there was no occasion for passinro;er fnir*^ '^'^ ^"""^ P\^ce 6ond/de, and be- on at^'L^^^^^^ on account of Lm^wicr. If, thprpfprp UD^bl *t ^"f ^^^i«variable custom as Is s^J "P by the defendants, the inference which i li\ A E COURT, • and llirongli wo I can see e farility with iirnisli an acl- '■ bare word of 't know, is a ►oked over to w ; and that iderptanding-, to appear by esiuiiption at tliey known )robable they cidar in the with Lemes- Lcmesstirier iding for the icipals, and kicenient to } swears, he r the same to iidered they er as n^ent, ? acted. good deal the receipts 3re shipped he clerk of the defend- re delivered nd without he only one . As soon' mstance.he assing over [uently, re- de, and be- if difficulty therpfnro m as is set QCe which NEWFOUNDLAND, would be drawn from it to fix tlie property in Lemessinier, by the recei|)ts beinj»- pass- ed to him, is rebutted by the fact o( the passing of the receipts being afterwards coun- termanded. Why should they have been so countermanded in this pariicular case? But supposing that all the receipts had been pass- ed by Boi/d to Lemessurier, and detained by him, 1 cannot see how that circumstance could have varied the case ; — the receipts are merely acknowledgments by the master of the quantities delivered onboard theship, and it is as essential that an agent should be furnished with these particulars as the prin- cipal himself. There is a difficulty, how- ever, in the case, which suggested itself at the opening, and I am not clear that it is now entirely free from it. Upon looking at the instructions of the master and Lemes- surier, I am of opinion, that they have ex- ceeded the authority which was given them, Lemessurier was directed to furnish fish to the amount of the balance of account due from him to the defendants, and bills were only to be drawn for i\\e residue oH\\e cargo. "Lemessurierj it appears, had intended to furnish to such amount from his own means, and was in the act of doing so when his in- tentions were suspended by his insolvency. The fish, however, has been delivered, oftdis now on board the defendants' ship. For so much as they have received through the authorized acts of their agents, they are cer- tainly liable, and they are bound either to return the supplies, or to pay for it. As the case is at present situated, 1 think the plain- tiffs are entitled to judgment for the full amount of fish delivered. At the same time, I shall be happy to afford any equitable re- lief in the power of the Court, under the pe- culiar circumstanqes of the case. ^ 215 1819. liAlNK, JoilN' 8TON & Co. V. CoSNARD Se Janvrin. 1' t u I. 216 Decembtr ll/A. Tht supplying nmrohanl of » pUnl«r ii liablt to pay Ibt wagai of lh« lerTtnti of that planter, to lb« ei- tentofMia value of •ny fish and oil which may have come to hit hands as ih« produce of (he Toyaxe, if he kn^«r, either actu^ ally or pretump- - sey ; but upon the latter point there were some witnesses examined, by whose testi- mony it was proved to have been known to defendants that Morrissey had two servants;, and that the plaintiff was one of theai. Per Curiam, The practice of following fish and oil, as it is called, under the 15tU Geo. lil. has been carried beyond what the framers of that law probably intended.— There is an opinion, which has found its way among the records of the Court, given by Lord AhaiUy and Baron McDonald, when they were law-officers of the Crown, that the servants' lien upon fish and oil foir his wages cannot be traced into the hands of a bon&Jide holder for a full consideration ; and this opinion is given with a latitude which might warrant its application to the merchant who receives the produce in pay-* mcni of his advances upon the voyage. The usage of the Courts, on the contrary, '1 I MB COURT, tst Burke & ant of one Mor- vered judgment urk of Se8sion», 3 in 1817. rs of Morrissey, »il. This action ^gment, for the ish and oil into 3 15tliGeo.llI. ' only received the amount of ing received fish anced, khey are same. It was laintiff was not ■vantof TWorri*- )int there were t>y whose testi- been known to d two servants, of them. e of following under the IStli yond what the ly intended.^ — has found its e Court, given ►n M'^Donald, of the Crown, sh and mX fov into the hands consideration ; 'ith a latitude lication to the )duce in pm/^ iroyage. the contrary. NEX^FOUNDLAND. has always been to consider the fish equally liable to the servants in the hands of the merchant, or in those of the immediate hirer. Upon the whole, 1 am rather inclined to think the practice of the Courts ri}j;ht as ap- I)lied to the resjular receiver, although it has sometimes been carried too fiir. The correct interpretation of the law must, in a great measure, depend upon ft practical knowledge of the subject to which the law is intended to be applied; and, although I should always bend to the superior wisdom of English lawyers upon a point o( En [(lis h 1nw\ yet, 1 should hesitate in yielding implicit deference upon a matter of a mere local character. In the case of merchant and planter in this island, there is an intimacy of con- nexion approaching to identity. If the ser- vant is to lose his lien, upon the removal of the fish from the planter's room, he must in- terpose legal process to arrest it ; and the Court has had abundant experience of the ruinous consequences of such a proceeding. If 1 can collect that the merchant-receiver is privy to the shipping of the servants, or is cognizant of the fact of their being shipped, I shall hold the fish and oil received by him to be still liable to the wages of the servant. But the case must be bond fide, to entitle the servant to this interpretation of the law; lie must be, actually ov presumptively, known to the merchant, and there must be a total absence of all fraud. The merchant has a right to inform himself of the number of ser- vants, and amount of wages. If he neglect to do so it is his own fault; but if he exert the right, and if any servant be kept back, or falsely represented, the servant must take the consequences upon himself. In the case before me, 1 am of opinioni 2f 217 101f>. DOOLEY r. Burke 9i Uackutt. Ill ^f'^i0^ 218 / 1819. DOOLBY V. Burke & Uackett. CASES IN THE SUPREME COURT that the plaintiff was not unknown to the defendants as a servant on the room which they supplied ; and as there is no proof of fraud against him, he is entitled to receive the balance of his wages from the defend- ants, as receivers of the voyage. January I«l. 1820. If objections lo the decrees of tb« Courts in (his counlry were al- lowed to prevail merely on ibe groiiod of tn/brma* lity in the c*ursa of proceedin(r« more than half the titles to property in Newfoundland ix'ould ba uniet- tied. A decree, or judgmeot, tbere« fore, MrUch has been regularly en- tered, and not ap- pealed from, will always be respect* cd and enforced. George Heath and Others og-atW^ Robert Kean. F) ROM the following decree, the facts of this case, and the questions to which they gave rise, will b6 easily collected and un- derstood. Per Curiam, — ^This is a summary proceed- ing by petition and answer ; the petitioners setting forth their claihi to three undivided sixths of certain plantations in this island, as tenants in common ; and praying that partition may be made, and possession given to the parties respectively entitled to the same: and the respondents denying the rights of the petitioners to any part of the property in question, and praying that the matter may be dismissed. The only question in the case, hihelegal title; thejfacts are hot disputed; but for the sake of perspicuity, it may be as well to take a cursory vleW of the principal grounds upon which the p^itiofieri^ rest their case. William Kean, the elder, was th6 com- mon ancestor, from whoiii' all parties derive their claims. By his will, which is dated in 1772, he gave his pla(ntaiiot)s in Newfound- land to his two sons, Benjamin and Robert, to he equally divided hetweeh them. He af- terwards goes on to specif v certain condi= tions, upon which his eldfitet son, Wmam, was to share equally with his br^thfeii, or be COURT KEWFOUNDLAJJD, 219 nknown to the he room which ! is no proof of illed to receive )m the defend- ?e. gainst Robert le, the facts of to which they lected iind un- mary proceed- Ihe petitioners ree undivided in this island, I praying that tssession given ntitled to the denying the Y part of the •aying that the se, ia the leg-al ted ; but for ' be as well to icipal grounds it their case, 'as the corn- parties derive th is dated in in Newfound- 'nahdRohert, lem. He af- i^rtairi f^ORf?^= on, William, ^thi^eii, or be excluded : but by a codicil, which was add- ed in the following year, the testator re- voked the disabling conditions of his will, and gave William an equal sJiare with JBcw- jamin and Robert. • Upon the decease of the testator, his three sons took possession of his estates in this island, and divided the profits. In 1785, JBenjamin conveyed half of his third to Ro- beriy and died Some time after, leaving a ■will, by which George Heathy one of the petitioners, was appointed his executor, William, the eldest son, died in 1786, leav- ing a widow, who is since deceased, and a daughter, who is the other party to this pe- tition. So stood matters in the year 1792, when proceedings appear to have been insti- tuted in the Supreme Court of this island, for the purpose of adjusting the rights of parties claiming under th^ will of William K$an, the elder. The order of the Court of 1792, which is recorded among the proceed- ings of the Court, recites that disputes had Brisen, and that the claims and titles of the respective parties could only be settled in England, where they resided ; and durects the rents to be brought into Court, to be thereafter paid over to such parties as should make out their titles to the same, or any part thereof. Whether any decree was made, does not expressly appear; for there is no record to such effect among the pro- fceedings of the Court. But there is an or- der of 1794, which mentions a decree as ha- ving been given in the Supreme Court, by which tbe property in dispute was settled and divided in siapth parts Sfc. Upon these facts a preliminary question is raised— how far this Court can Proceed to hear a case which has already been determined ? and I have no hesitation in s^ing, that if that fact 1820. Heath & Others o Kean, ■m ■m 220 <^ASES IN THE SUPREME COU.T, M\ can be satisfactoril v maH*. tr. The Judge ^ho nrll?''', ''^"^ institution, foundlandonrfor^ai^j"''' f^-" *« ^«^- /a/i*, without a Drofp«;« ! ^?''*'' ^^^»* «^e- office to register hi^nro.!}-* ^^^•'^' ^r an regularity undeJ sucCf ^^'^'"^- ^^ ^^Pect be to Joo'k for that ;\?'h'rh''''!r' ^^ '"^^ not find. «„t it mui/nn/K*'^/''' certainly >.fc is the first oSt of ii? /^''^^"^« that ^ are onJy the means by Xh *^''"'*1 '•^^'•*»* attained. To disregard A ^^^' ^^J^^' i« Courts in this island ' ^® Proceedings of would be to unseUle'bXt^ {?HnformaIity. to sacrifice the ends jf ?-^ *'*'"' ^^ ^t, and Were the present thel^n''^^ ^« ^ts forms. I could arrive at the facf^f' ^ ^"'f '" ^^ich ving actually passed th^r ^"J^/^cree ha- feel myselfaX^tdttr. t^^^^^^ can have the effect ot^'j"' anything which suspends the payment „T^- ,'' ^^P^'^Iy nghts and titles'^^f The 'vLm"'?' •""•"' ""^ tl-e property in rfisputl »ere L ""3'""^ »° order wh ch waa m„ i * P'O'-ed. The alludes to a dec ee 'but'"„ "''\ "^"''"l^ to be found ; and V am .^1 ?"'!,'' '^^"'^^ » from the loose and unSl*''".* "* '» """fe. ^hich the iMerTrVT'nTA T'"''' ""» framed under an erroneo.r '^*''' "J"*' "was ceding order, and that Z T" "^ «''« P'*" ♦hmg having he effect 'faV^"*' "' '"y rights Of ,h^, partt!'hl\tnL«i«»'.roceedings of ?r informality, 'ties in it, and to its forms, -ase in which Y decree ha- I should not rit. dt the pro- ny degree of er of 1792 is, thing which " expressly s» until the laimants to ned. The ^ certainly •h decree is ^ to think, manner in that it was >f^the pre- s» or any. "pon the sea given NEWFOUNDLAND. 1 have entered fully into the reasons which induce me to entertain the case upon the will of William Kerr, because I am desirous of preventing any misconception from cau- smg it to be drawn into a precedent here- after. Upon the merits, J do not see the least ground upon which the respondent can rest his case. The testator, fVilliam Kean the elder, gave his Newfoundland estates to his three sons, " equally to be divided be- tween them." These words, in a will or de- vise, are not disputable ; they are established by the whole current of authorities, to create a tenantcy in common ; and they are repeat- ed so many times in different parts of the will, as to exclude any presumption what- soever, of being used unadvisedFy, or con- veying a technical meaning different from the intention of the testator. It is, therefore, adjudged, that the petitioners are entitled to certain shares of the estate of the late Wil- liam Kean the elder, y'lz.:— Martha Keanto one-third, and Geo, Heath to the half of one other third ; and that the same be divided, and possession given, according to their res- pective rights, 221 1820. Heath & Others V. Kean. r-^ Gijfit-UMarfi^^- J CASES IN THE SUPREBIE COURT, Hunt, Stadb, Preston k Co. against lETER Le MesSURILU. The iandlord of premisei not parti* culurly dedicated to the purposes of the fishery, has ths •ama remedies for the recovery, of rent due for such premises ai a land- lord in England would bare: but where the properly for which rent is claimed is merely a fishing pUmtum Hon, or establish, meat, the rent will be considered, in the event of inso|. Teocy, gas current supply, and paid ratably with other demands of that class. [See Chaun eey against Brooke %0 ZrZ if-y^^^J^^^ o(a dwelling-bouse, H„I fi' * W ^°*^ premises, in St. John's due first of May, and Isl December, 1819. 1 he case was submitted to the judgment off!o*^''"'*''?P?" ^^^ following statement rect '''''*''®'*^^» ^'^ "^o^** wtles; to be cor- The defendant is a general merchant, resi- dent upon the premises, the rent of which is* by this action, sought to be recovered; and was^ at the suit of several of his creditors! Before the declaration of insolvency was pronounced, the plaintiffs issued an attach! went, on account of rent due the Jtrst of May last, apmst the goods .and eflWs of thf defendant ; and an officer was charged with, and had the custody of. the goods property, and effects of thJ defendanfthen /W i« and upon the premises in question ; and immediately after the insolvency was declared the plaintiffs issued a second at. tachment for the rent due first of Deamhe^ and which attachment was executed up^n ♦he property of the defendant then in the hxmse, stores, and premises in question, in like manner as the first attachment had been ex- ecu ted* The second attachment was issued by the thpT, ttn^i ^^*^"^"'/^ ^^'^ publication of the [defendant's msolvency ;-the plaintiffs considering such measure' requisite, or, at Jeast, a safe course tn fntn ,«^--i™/_' _ cure mu, ia tha. Ucni ^ii^^'l^ t^l COURT, Co. against lEli. sum of £210, velling-bouse, in St. John's, Jraber, 1819. the judgment ing statement es, to be cor- lercAantf resi- at of which is, covered; and his creditors^ jme Court, oij er the statute Jolvency was ;d an attach- s^rsi of May fleets of the i^as charged the goods, pndant, then in question; )lvency was I second at. f DecembePy 3cuted upon then in the ition, in like ad been ex- sued by the t>]ication of »e plaintiffs site, or, at ) the land- NEWFOUNDLAND. 2f*3 lords of the premises, they held over the ef- 1820. effects then lying within such premises for ^ — , - _ ^ rent m arrear; and of which lien they con- Hunt.Stabb. tend they are not divested by the property ^^^^^'on *^ C« of the defendant passing by the operation Le Mes^ukieb. Of the law of msolvency, mto the possession of the trustees of the defendant's insolvent estate. The defendant has, during the current year, carried on a trade in the fishery at Bunn ; and has also supplied planters and fishermen in the manner that is usual with merchants in this trade to supply such per- sons. ^ The stores, &c. of the premises in ques- tion have been employed in the defendant's general business as a merchant ; and, in par- ticular, he has made profitable use of the same as a commission-merchant, receivin**- goods and merchandise into the same stores to vend on commission, charging, over and above a commission on the sale of such goods, a percentage also upon the said goods for storage of the same, after the rate of two- and-a-half per centum. Of the property and effects laid under attachment for rent as aforesaid, besides the household goods and effects in thedwelling* house, and other goods and merchandise of the defendant in the stores, there was a quantity of goods received by the defendant, and lodged for sale o» commission as afore- said ; all which goods were attached to pay the said rent. ■ ^ The trustees of the said insolvent estate being desirous to mifce sale of the whole of the said effects, it ^as muluAlly agreed be- tween the said plaintiffs and th6 Said thistees that the said attachments shoutd b»i i^aispd and the trustees be allowed to sfell off the saidgoodu and effetts without prejudice to 224 CASES IN THE SUPREME COURt, III , II 1. llie lien of the plaintiffs, or their rights in ^^^P^^^ ^^ '^® ^^^^^ attachments for rent. PkesVon &°c; V'^. ^^'>i? ^^ ^''^ S«°*^« attached by the rKESTON & Co. said plaintiffs, in manner above-stated, was tLE Messurier. ^' *"® amount of one thousand pounds and upwards ; and both attachments were duly executed upon the said goods before any other attachment was served on the same in any other suit. ■Per Curiam. Upon the case stated, I am of opinion, that the landlord is entitled to his rent out of the assets of the insolvent estate. Hut lest this decision may be misapprehend- ed, 1 shall state the grounds upon which it is lormed. The bankrupt acts in Jfin^land have vested the effects of the bankrupt in the assignees, as fully and extensively as the 49th of the King vests the effects of an in- solvent in his trustees in this island. Rent m arrear is held to be excepted out of the bankrupt laws at home, whenever there are goods upon the land or in the house, and there is a distress for rent. Distress is an ancient remedy, by which the landlord is entitled to detain the goods upon the land until the rent is paid ; the assignees succeed \9^}l^pe rights, and for the rent, to all the iiabilities of the bankrupt, among which lia- bilities, is a distress for rent. 1 .see no reason why the same rules should not apply to property held in this town, where such property is not immediatety engaged in the fishery, which is the case with the pre- mises in question. But where the property for which rent is demanded, consists of a ^^Aiw^/^/ttwto/iow, it has been usual to con- sider that as ^ current supply ; and the ge- neral convenience of the fishery, as well as the good sense of the thing, seems to war- rant such intprnrpfAfinn f« c.,.«K — -^ ^i, - landlord cannot distrain, and need not dis- I \ 5 COURT, their rights in Its for rent. Itached by the 'e-stated, was d pounds and nts were duly ►ds before any in the same in e stated, I am entitled to his lolvent estate, lisapprehend- 'on which it is in England mkrupt in the sively as the ^cts of an in- sland. Rent d out of the per there are ! house, and )istress is au ! landlord is on the land nees succeed t, to all the ig which lia- rules sJiould town, where / engaged in v'\\\i the pre- he property, insists of a ual to con- and the ge- as well as ms to^war- >K ^»^. Ai. - .u i;a9C iiie '.ed not dis' NEWFOUNTLAND. 225 train; he cannot enlarge his remedy, bnf he 1820 cannot lose it by the removal of the goods ^_^ , -^« before the rent becones due. His claim for Hunt, Stadb, rent is as for a current supply, and must rank I*Rbston & Co. with other creditors for necessaries for the r ,. *'* fif^evy, pari passu. It is, therefore, adjudged ^^^^'^^urieb. that the plaintiffs are entitled to full pay- ment for all the reiit in arrear at the time of the insolvency, to be computed up to the day of payment, agreeably lo the lease ; after such day thr demand is merely ratable. 't 3 Trustees of Benning & Holohan against Brown, Hoyles & Co. J. HIS action was brought under the fol- lowing circumstances : Benning and Holohan carried on a fishery at Ferryland, and took up supplies upon credit from several merchants in Ferryland and St. John's. In the course of the season they put off several parcels of fish to such merchants; and in consequence of their affairs becoming embarrassed at the close of the season, *uey were declared insolvent, un- der a writ of attachment, in St. John's. The defendants were one of the mercan- tile houses which had supplied Benning &• Holohan, and received fish before their in- solvency, which they have passed to their credit in payment for such supplies. The trustees, having paid the servants* wages, now call upon the defendants to contribute to the payment of such wages in proportion to the fish Teceived . It appeared in evidence, that a writ of at- tachment, issued at the suit of the servants from the Sessions Court, had been served in September last, upon certain &shoi Benning January 6lh. The trustees to an insolvent ei> tate can compel the receivers of the produce of the voyage to contri- bute ratably— i.e; in a proportion compounded of the amount of the sup'. plies they have is- sued, and the va- he of the produce which has fallen into their hands, to the payment of the servants' wages. 226 CASES IN THE SUPREME COUBT, li f ; hi I t! - fimt^l'lV^", ^'"■f*-'": wharf; and T-....„ ofBB»- officer ^hoseti^l'i^'^'"''''"" '"''»™«<' «"'fc * «"• wages ; aif o^'.h^T^ '"orparoJ'ir fish to ,„pp,i jh„ secun^JCsle;^ for the wages of two fishermen. It waX obtain s,ra,ar security on the fish brought S':^ TheToL^L'TaT? 4^J ■" lose siffht of the fan* s*'* » «»"ai cannot qaencf of «.^fiIl1J''o^ goinTa" 'S Ae rooms m payment of the masters deS" that .htT'*?" *""^''°« "O'hing to pay Vbem tion ''f 'Th?^'"'' '■'?'"'''' 'h" law in que": r.|ddtei-K^,?-^^^^^^ ^LL/ ^i *fafy applied to the Surroffateof a^7fc"*:rff to''^ ?r^ p^^^ «^'^" fi''^ •ecuri V Z^tK '''^'^**^^' ^°^ obtained t'orofth^^ ter:,\f r:^^" p^«p«- followprl thi « ?^ ' .^" *^at they actually to St Tnhn'! ^' V^^^^^ed by the defendants wafel fll* ^? ^'^'^^^ t^«»r demand for sr^V^-^vtr^athL^ft rfi\rd^,^^-.\-r';f-^S f '^e 5cn;a»f, ? They have rTald th^ servants to the fuJJ, and «ro r!!:*?^.^ ^^.® tied to staad in their-plaTe;airrcaif ^t COUBT, ts' wharf; and informed the !, that he would ight round. sly applied to secure their ofpartof the rity was given 2n. It was to B fish brought had attached ieptenaber. eorge llh is ! can make !t, Jhery shall be and 1 cannot was in conse- ig away from laster's debts, \ to pay tbem, law in ques- that the ser- : their indus- Surrogate of rt of the fish nd obtained "tain propor- hey actually J defendants demand for 1 think, 1 the acts of ig lien upon dants, and, ants) tvould a is, how the claim paid the I call upon NEWFOUNDLAND, all who have received fish and oil, subject to Hen for wages at the time of receivings to con- tribute ratably for wages ; were any other rule adopted, the servants would have it in their power to elect on whom they would claim, and exercise amost arbitrarydiscretion over the receivers offish and oil. This must not be; the law makes all liable^ and equity apportions the \vah\\\iy between all the parties^ CoNARD and Others against Daniel Dris- roLii and Others. 227 1820. Truateei of Bbn- NINQ&HoLO« HAN o Brown, Hoylu Ti HIS was a case of prohibition. The plaintiffs suggested to the Court, that the defendants had commenced a suit in the Court of Vice-admiralty, against the schooner Active and '^argo, and that the cause of such suit was for salvage, or a compensation for assistance rendered the schooner while at anchor, within the harbour of Bay of Bullst and not within the jurisdiction of the Admi- ralty. A rule to show cause why a prohi- bition should not issue having been granted on a former day, the case now came on for hearing before the Chief Justice^ who after- wards delivered his sentiments upon it in nearly the following words : — The Courts of Admiralty are regarded by the common law of England as foreign Courts, proceeding by the rules of the civil law, and determining by principles unknown to the laws of the land. The jurisdiction of such tribunals was once an object of great and, perhaps, in the early periods of our juridical system, of proper vigilance on the part of the Courts of com'mon fave. But the little jealousies which fonnerly agitated the Jaimary 27•• «!•« ken; mdZvZ'""' '" l*^ '"^"y ■"i^to excess by Wa^^ ™rr"' f^."""'"'' f™™ «l'e part of l« S ^ "," '™' "''W'able on ofcoTmon aw Til™ '■'•'''/'". "f'^^Courts is. in fact aT-lr.fft,''"™''"'""""'' Courts •^-untry V'andT s L '* "^o"" ""io" of the any .i„d"-eof .I.iV "' ^?^> '» '"'^g'ne that constitutfon merelv^o'T""'',''™ •'^ "'« his personaTa^otfe;" ""'"'•e^ ""e sphere of as weM fn i^i, ""® Court, it may be as U now stand." T"T'' ''^^ <" "■« '"^ Admiralty shnll n^. 1 ,?'"''''">«. "'at the .lone wSin , e T.CZ' «'"' ""ything which is done «»«, /!"• "' "I'j; »'"• 'I""* the same Khfo- ^r !•"•' ""'' "'« '5th of of c^mpIaTn^'a^arnsrS 'e '"* "'^ [''^''"^'^y tlie Admiralty, d'eXestirf"",^''"'™'^ "^ ha»e?o juWsdieL? ; '''e AdmiraKy shall &c. sha» be tri^H • "i 'J"" '""='' contracts laws of thetand .'tcentlf '™.'''^'' ">' "'« death and maim in ^'^ . •'^''''"" "^"^^s of bridires In ih? ^r*' .''"'«™ ''e'ow the t«tJ^-has"bfe^dTr^SVat''jrr'''- and;«^/, are within thTcoSnty fold r^'" thority, .his d^e/nid^raL'eVrs'to^bf r- criterion. ft-wouTdT^-t ir^rC' E COURT, ?n laid at rest, jurisdiction are L»e easily mista ', guarded frora observable on m of the Courts ction of Courts stitution of the o imagine that •"ould encroach d him by the 3 the sphere of for a prohibi- urt, it may be ew of the law e to this case, ains, that the with any thin j^ nly with that <1 the 15lh of "le frequency Jachmtnls of all contracts ofcounties,as miralhj shall ch contracts lined by the tain cases of rs below the of these st^- lat all havens Lord Cohe^ s, that it is may see the n the other. s great au- ^-o be too ' accidental tbrmajust more coii- NEWFOUNDLAND. BJstent with the good sense and liberal spirit of the present day, to consider the locus in quo, with reference to its use and mode of occupancy, either as a place of frecjuent re- sort and ordinary transactions between man and man; or as one visited only occasion- ally, and not essentially connected with the business of the neighbouring land. But whatever may be the truth in the abstract, it is not necessary to the present case, which is clearly not within the jurisdiction of the Ad- miralty. The transactions all took place within a harbour of the island, aj)ortofe7itri/ with the custom-house, and a place of consi- derable trade. ^ It is su«fgested, however, that as the re- medy souj|;ht in this case can only be obtained agamst ^'le vessel itself, so i\\e Admiraltu alone can afford that remedy. But the Su- preme and Surrogate Courts of this island have, also, the power of proceeding- in rem; an attachment of the thing, is the ordinary commencement of their proceedings ; and there is, besides, another course of remedy, more easy of access to the parties, aud ex- pressly created for cases similar to the one before the Court, \'iz.~the statutes relatino- to salvage. The 12th of ^w»e directs, that upon the application of the master of any ship or vessel in danger of being stranded or run on shore, the officers of the police and the customs shall summon as many men from the neighbourhood as may be necessa- ry for the assistance and preservation of such vessel in distress ; and, also, shall re- quire from all the commanders of ships of war and merchant vessels near the place the assistance of boats and men, under the penaltv. in casfi nf rpfnaal «<•««« i — a^-,a pounds. And for the encouragement of those who may aid in the preservation of 220 1020. CoNARD & O'lhers V. Driscoll Se Olbers. 2i0 u 1820. CONARD & Oth«r« t;. Driscoll & Oibera. CASES IN THE SUPREME COURT, tlTih^ '^j'"'""'.' *.^l^^' ^«^« 0" *o direct that the salvors shall be entitled to a reason^ otL^T''' u ''' V^'** ^y ''•« "^^^ter or awners of such vessel within thirty days af. er the assistance rendered ; and 'in case of disagreement as to the quantum, to be ad- n"earP V. ''^a "^l^hbourinff justices of the the Bnti«h ^ '•'' *^^P''^«f'y applied to all lute, o3d Geo. HI. its provisions arc ex- /s bv f f/^'*'' "".-"'^ '^^ assistance sought faster « ;i""^^^'af« application of the S ^^^^'^ P^*"*'^^' ^'thout the inter- yention of any officer of the customs It IS stated that these statutes have neve" 2yere the first instance, 1 should feel no he- Which, on the way lo this port, meets with bad weather, and puts into a Neighbouring harbour to refit. While the master is "n shore the wind freshens, and the vessel drives to the opposite side of the harbour Perceiving her danger, he applies to the officer of the customs for advice, who re! fers him to the defenc ants. The first oues turn asked is, what will you give' Fortu ijate y, i„ this particular instance, some un- derstandmg appears to have taken place between the parties, and the vessel was re r.l^T'? her difficulties. But suppose that the defendants had refused to go to the assistance of this vessel, was therino way areonTv^frS'*^'"^- .^I'^ely, laws whic^ Z\^.y ?J affirnjance of the common offices of humanity ought to be applied, if they can be found applicable. ^"ey can fJjZ ''/. ?P*?r ^^'^ ^^^'^ statutes are in fj^ofTT '"\^^^ ''uommions" used in the first Act, us because 1 hold them to be essen! I fi COURT, >es on to direct ed to a reason- tlie master or thirty days af- and in case of urn, to be ad- iiistices of the applied to all y a recent sta- isions arc ex« istance sought ation of the 'Ut the inter- customs. It s have never 'o; but if this lid feel no he- Te is a vessel t, meets with nei-jhbouring n aster is on i the vessel the harbour, •plies to the !ce, who re- le first ques- ive ? Fortu- ne, some un- taken place ssel was re- But suppose to go to the here no way laws which imon offices , if they can tutes are in ch from the sed in the to be essen- NEWFOUNDLAND. tially connected with the moral duties of mankind, and with the security of the trade and prosperity of this island. It is import- ant that the inhabitants of this maritime co- lony should know that they are bound to assist vessels in distress by the positive in- junctions of the law, and that they are pu- nishable if they refuse it ; and it is proper, also, they should be informed that while the legislature enjoins this duty, it gives them a right to remuneration, and provides them with a remedy far more easy, and less ex- pensive, ihan any Court of justice whatever could afford. I am of opinion, therefore, that this is a fit case for a prohibition, in every point of view ; but as the Judge of the Vice-admiralty is at this moment absent, and the case is unusual, to prevent misap- prehension I shall say a few words as to the authority under whit' aiis process is award- ed. Prohibitions ire high prerogative writs, issuing from the King s Supreme Courts to some other Court which is supposed to ex- ceed its jurisdiction. In every country a power of this sort must be lodged some- where ; and in the colonies it is exercised by the superior Courts in the same way that it is at home. In the case of Le Caux and £den, Lord Mansfield mentions it as of acknowledged practice; and among 67m/- 9w«r5'* collection of opinions upon cases of colonial jurisprudence, there is a very full opinion of Mr. West, then counsellor of the Board of Trade, expressly upon the point. The Court of Vice-admiralty at Massachu- setts Bay had complained to the Lords of the Admiralty of prohibitions granted by the provincial judges, in derogation, as they conceived, of their authority ; and the Lords of the Admiralty addressed a memorial upon the subject to his Majesty's Council, by whom 231 1020. CoNARO 8e Olhera o. Pr I SCO IX 4; 232 1 1 ■f pr 1820, CONARD & Others V. J)rtscoil & Otbers. CASES IN THE SUPREME COURT, fdvisT^^"' J^'/'^^^r^d to their official Aft^r w-^'- .f'*'* "^""''^» '« conclusive, introductive of new laws, but declaratory of ^^\2^e '-'^.^P^" »a^ .was before, he says, 1 am of opinion that they are in force in ^LtT^''T\ ^^^ ^^' an Englishman go where he will, he carries as much law and iberty with him as the nature of things will bear ; but to shovr that it is impossible there should not be a power of granting prohibi- tions, wherever the common law fs extend- fJctT/ •''*''^'P'. ^"* "^'^d only torecol iect the inconvenient and absurd conse- quences that would follow were it not so. vJ^'^f^ ^^^ ^^"^* of Admiralty in New England, take upon itself to hold%lea oi freehold or to take cognizance of actions of tt.-: ^'''ly'^^i ^^'"^^'y has the subject to he h»f 'n^f'Y'^^^ ^? '?"' inheritance which law? If 1^'"^ •'"^^^^ ^y *h« common / rf- ^"^^® *^ "<^ power of granting pro- Jnb^t^ons, remedy he has none~to the^Cg irregular Irom Uie sentence, therefore, of « J M?I?T^ u^ri^^"'' ^*^^«'^^' ^^ ™"st ap- peal to the High Court of Admiralty at home now tar it is absurd to suppose the liur |^.ould afford the subject no oTe, remedy " the legal advisers of the Crown, by the die tun, of Lord Mamjkld, and by ;hat my om, experience enables me to say is the unques- tionable practice in other colonies. 1 fi the relief which is prayed is within the power til^»h*^''iT' ""?• *''«^^''"«' """ " pSi- tmn should go to restrain the defendants m7",rnf.!.''.'"S "ny ft'"'er in.the Vicc-ad! f COURT, ) their official is conclusive, ic/iard,aa not leclaratory of fore, be says, e in force in nglishman go luch law and 'f things will possible there ing proJiibi- 1^ is extend- nly to recol- surd conse- re it not so ; alty in New- old plea of >f actions of e subject to ance which le common 'anting pro- the King for that is erefore, of >e must ap. ty at home, determine e the law ' remedy.'* 3f one of y the dic- atmyown e unques- !S, I think the power 1 prohibi- efendants Vice-ad- NEWFOUNDLAND. 233 CUSTEEN & BuRK flg-aWWn'HOMAS DaNSON. 1820. 1 Jl Ills case having been ordered to lie Over for consideration, the following judg- ment was now delivered upon it : — The plaintiflfs entered into partnership in the spring of 1816, and fitted out a schooner for A sealing voyage. They took supplies to a considerable amount from the defend- ant ; and upon their return from the ice, thev ofll'ered him their seals ; but some dif- ference arising as to the price, the plamtifis, thinking they could get more than was of- fered by the defendant, at St. John's, brought them round and sold them to Ryan Sf Sons, at the stated price, payable one half immediately, and the other in the ensuing fall. The bills received on the delivery of the seals were endorsed by the plaintifis, and passed over to the defendant, by whom they were remitted to England and received. The plaintiffs continued to deal with the defendant, and took up supplies from him for tiiecod-Jishery, which they intended to carry on at the Labrador. It appears, upon reference to the account exhibited, that be- fore the sailing of the plaintiffs on their sum- mer voyage, they had taken up supplies to the amount of more than £200 ; and being 80 in receipt, they drew an order on Ryan 6f Sons for the balance of money due for the seals, in favour of the defendant. This order is unfortunately lost, and is said to have been destroyed by the fire of Novem- ber. It must, however, have been drawn heiore the thirteenth of June, as on, or about, that day, the plaintiffs sailed for the Labra- dor. . . The order was accepted by Ryan Sf Sons ; and on the 15th of October they drew a set 2h February VWh, A supptyinp; merchant reci.-ivfs an order from hii dealers or partners in the fishery, up- VII a party who owea ihem money, and afterwards ac- cepts from the par- ty on whom such order was drawn, a bill of exchange upon England for the amount tbere-< of. The bdl is pro- tested, and tile drawer thereof be« conies bankrupt. Under these cir« cilmistances, the Court held, that the debt of the dealers was extin- guished by the iiieruliant's taking the bill upou Eng- land in satisfac- tion of the orde they had dcawb ia bis favour. 234 CUSTBBN & BURK V. Danson, CASES IN THE SUPREME COURT, re «^ned^;^,:ir'^/ ^'"'.^^^^ remitted; and PS action "^n ""^ ^^^« "«« to the rhere co»M ?• ^P''" ^^°^'*«' principles «« ;u \''?..""'"er of a bill, or order takps another b,I| from the drawee, it is consider f a ega satisfaction of such firs? bUI a^d completely discharges the drawer 'iTm preseni case. It certainly m g it so haoDen «,^L^ f^i' *'"'"*•' «« ■•««i»e bills from S STenr^W?"'!' "' ""« "'""' period o pay! against the person who gave the order to receive thera. Cases of this sort must de «i!t'H • .. "". ''»'''*'■ »f ">e order should fhf ;?in" ."'tP'»'=« »f ""8 drawer, and receive «he bills in his name, aad with the s^TZ J»«dy oyer, as if he had receved them from iitft" P"'y= »"«•> a case migh°haBD™" •M sprirtr*"*" """-f™' » ^oSa inat snc|i is the one now before mp Tul prder of the plaintiffs onV<»T^»; Jur, fortunately lost Was it a genml orderTo" receive so much in the usual way ? or was k fotteSf "■'''•'-"-• •'"'»«'- --.«„^Uca„u„ojeY,dence, which I ran P»ly gather from genml presimptJons , anS ! COURT, s Dansouy for I remitted, and e rise to the 'ral principles in the case, p order, takes it is consider- first bill, and rawer. I am s island, the is by bills of And it is this J point in the ht so happei) e bills from 9 ;riod Qf pay- such particii- he bills being ?ht be fairly ing sucb bad tp consider his demand he order to )rt must de- f the parties; ght be pre- 1 of the par- rder should and receive lesame re- them from ht happen ; conclusion » me. The Sons is un- al order to ? or was it bills given ich I can tions ; and NEWFOUNDLAND. 235 presumptions are against the defendant. Such an order would have been particular; it would have been the subject of previous arrangement ; and some record, or notice, would have remained of it ; but none what- ever is to be found, except the party's own note in his books, which, of couise, cannot be received . Besides, the defendant's taking the bills in bis own name, causes a strong presumption against such preTious arrange- ment. 1 cannot possibly speculate upon what might have been the state of the case, had the r^aintiffs drawn in favour of other f»artieE i he bills might have been circu- ated ;^v ^ae island, and become the subject of set-off, on payment, or arrangement with the drawers, in many ways. Neither can I suppose that the defendant acted as the broker, or agent, of the plaintiffs, who were lai^ely his debtors at the time the order was drawn. It is true it was supplies ; but they might have exercised the discretion they had used before, and sold their fish to other parties, as they did their seals. As the case stands, the plaintiffs being indebted to the defendant, and giving him an order for a large sum, not equal, however, to the ex- isting debt^ and the defendant giving up such order, and taking bills in his own name from the drawee, unexplained by any positive agreement, 1 think 1 am bound to hold that the case is not taken out of the general prin- ciple, and that the plaintiffs have a right to consider this as aiMtym^nr. 1820. Cdstbbn & BURK V. Danson* 236 M : 1820. S CASES IN THE SUPREME COURT, ..W, ... ""'^'^^ ^ ''^'^^^ ^^--' •^ox.s IUrter. enables a. enant to Stances. foJIowing circum- ■urrender a lease II f * j •Her the desfruc- . ^"endant is lessee of certain hnn^«c tion. by fire.onha destroyed by fire ; and the nlalnHff^K ^^ premise, which assignees of the reversion n.f^ff* ^^*'^""' tormed ihe princi- After thp fil/f i i ?" ^"^ freehold, pal .ubjec-Lner todefenH«n.?'^^*'"^^^^'^'P^»'°tiffs applied 'HLdoesnoi ,„. I^J!, r* ^"^ ^^^ whether or not he in persedc .he nec.s- f^n^ed to Surrender; and def^Zlr^fl «"y of hi. „aki„s to have entered into somp !!!*/' ^PP^^''' •he surrender by the terms of wMoho ??^^'^*"^ ''^^^'^^^ call witnesses hntl ""^ P^posed to fn>m7„Sl:?j„t? If *>>« s""«te of fraud, eou.Xmade""'Horisa"c/r'''"'^?''f from the aereem™. ^^! I ? "*'* '° '''"'«'>' parties di'^^rTo Z tmV"oft""^']''t was exnrpRslir ♦^ " . , ***^ '^ » and it and that at UdeTtC'/oo'r *"r7' ■stltt, Jills tiaan-a ;<, _ ji • ""^ "^ usage is nothing more"th7n tacit proviso Zu^IJa T 'P^ "°''« ^^^an a proviso, annexed, by the custom of the COURT, NEWFOUNDLAND. 237 ►NAS JJarTER. iirt to enforce ^'ing circum- Ttain houses ntiffs became "reehold. ntiffs applied 5r not he in- fant appears il agreement, by the par- tat it was an nt insisting he plaintiffs t in arrear. r the agree- proposed to ited by the « ff frauds on a verbal h surrender in which^ vritmg, the it; and it ss that the 1 am of the forms lecessary,. nust be by. '2^ surren^ n case of irrender ; necessity fnrjYjjD Qf B than a m of the ' place, to every lease, that if the house be consumed by fire, the tenant shall not be under the obligation of continuing to pay rent, but may give up the ground if he think fit. If he determine to yield up the ground » lie must communicate bis determination bi/ writing, and if he omit doing so within a reasonable time, especially after application to that effect by the landlord, he is to be considered as having waved bis election of abandoning, and the landlord will have a ri^.ht to 1 egard the lease as continuing. 1 must, th elore, dismiss this application. HouRKE against Baine, Johnston & Co. JL HE great question raised in this case was, whether a supplying-merchant is con- clusively bound by a judgment obtained against a planter, who is a dealer of such merchant, by the servants of the planter. Per Curiam. The 15th of the King de- clares "all fish and oil made by the person who shall hire or employ the fishermen, 8u.b- j/ect, in the Jirst place, to the payment of wages, kc." It is important to notice tbat it is the fish made by the hirer, or, in other words, the produce of the master's fishery^ which is made liable to all the servants in common, without any difference, or preference, in the order of their claims. So long, therefore, sis the fish and oil remain in the hands of the hirer of the servants, they are liable to all demands for wages ; whether such demand be for services actually performed, or for luc Bs-ipuias-cu Tragus us a ocivaiii. Tftivr im^iiv have been improperly discharged before the period of service e3i;pire. 1820; DUOGAN & Mahon V Barter. March \tt. An the supply - inK merchaot is iiui immedfalely a party lo a suit for wages in ihe Sps- tions, tie is nntitled lo be heard apainst the rights ot ihe servants lo follow ihe fish and oil in his hands, under an execution is- sued upon a judg'* meot ill Iheir fa- vour against their employer. And if he can show any circumslaiice of fraud, or Ihe sup- pression of a ma-* terial fact, with the privily of the ser- vant, that will dis- charge him from all liability under Bucli juvlgniFDi. m h'l ■ RoURKB V. Bainb, John^ Ie, into whose hands soever they might have passed; and the Crown law- yers limiting that liability to the actual pos^ sesnon of the hirer &r employer. ^ ihl^ ^f"'"' ^as expressed its opinion that the practice of following has been carried too far m this country (a), much beyond the probable intention of the British Parlia- ment. Composed, as it is, of lawgivers accustomed solely to the language and arCt^I'T*'"?''?" "*^^P*^^ by the Court^ aiWestrnmster, it is most probable that it had in view the English practice of liens in giving fishermen a specific right upon the produce of their labour in wlwfouSdland! ■By the whole current of decisions and ooi- nions upon the extent of liens in England It IS established as law. that when theSff or subject-matter, upon which the lien sub! sisted, passes into the hands of a stranger il?s lost P^^'y^^^^^^^^J-^^I^ consideration; iJuJ^i!^^ ?!??"' therefore, that thelegis^ »ac«re intended to trivp « !,«« *l «. , («) la Dooh, f. Hacheit, dMidedllth D.Miiib.r, mtf. ■■'"*'*<«.. ■■„ COURT, NEWFOUNDLAND* 989 itiire, by iria- for another's servant a di- f his fellow- ih the most ice. In the 1 and oil are ; but in the ^U such fish lerconsider-i entertained ich the Su^ he Court of s at home: le proceeds xoT^ds soever Crown law- aetualpos- pinion that sen carried ch beyond ish Parlia- lawgivers :«age and the Courts ^ble that it >f liens, in upon the Dundland. and opi'< England, the thing, lien sub- stranger, ^deration, the lejsrtS' me Qsfa tfber, iflljr. I snd oil in the hands of the hirer only; but the custom of the fishery has extended it be- yond such hirer, s^nd created an iipplied lien in the hands of the receiver. The origin of this cuHtom is to be found in the necessity of the thing ; and the interests of the fishery are its best expositor. From the nature of the article of fish, and the me- thod of curing and sending it to market, it is the common practice of this island to take it off the rooms at different times; and a considerable portion of the catch is always removed before the close of the season, and before the time of ti»e wages becoming due, Jf the servant is to lose his lien by the remo- val of the fish, he must arrest it upon the rooms ; the ruinous consequences of which proceeding require no comment. The ne- cessity of the thing has, therefore, given rise to a general understanding that the fish may be removed from the planters rooms to the warehouse of the regular supplier^ without any detriment to the right of the servants, whoare presumecl to know, and to be known, to the supplier, as to their number, occupa- tion, and amount of wages, &c. If there is any frauds or collusion, or sup* pression of circumstances, with reference to the supplier, the lien is lost, it wants its most essential ingredient, — the presumed un- derstanding between the parties, and the tacit contract of the supplier to be account- able for the wages of the servants to the amount of the fish and oil he may receive. Subject to such considerations, 1 conceive the servant has a clear right to follow the fish and oil into the hands of the supplier, and that his lien is as strong in the merchant's It is necessary in all cases that the de- mand for wages should be established 1820. KOURKB V. Bainb, John^ STON & Ctf. // r 1 1 240 1820. KOURKB V. Bainf, John- ston & Co. CASES IN THE SUPKEME COURT, against the actual hirer ; and in followhij? up execution, it is possiblf* the planter may have effects sufficient to satisfy the judg- ment, without recurring to the fish and oil ; but the legislature, 1 think, intended to give the servant not only a summary proceeding, but a summarj satisfaction. The supplier has his remedy over against the planter, if he choose to enforce it ; and he has, also, the means of indulgence, and of giving time for retrieving a bad year by a better ; which, in so precarious a thing* as a fishery, and with reference to the many small adventurers now engaged in it, it is of importance to the genet-al interests of the fisheries to preserve. As the merchant or supplier is noi imme^ diatelif a party to the cause for wages in the Sessions, he has a right to be heard against the fish and oil being followed in his hands ; and if he can show any circumstances that take his case out of the presumptive liability^ he is undoubtedly entitled to the benefit of thetn. The mere judgment against the mas- ter will not necessarily bind him ; and any circumstance of fraud, ot the suppression of a iTiaterial fact, with the privity of the servant, will completely dischargi the supplier. March 12th. The whole of the«ea«coa«tof thin island is dedicated to iheyfsAery, by Ihe 10 and 11 William III. c. 25 ; and,lherefore, iliA fl £\MTgnfiint\m Man. not grant any part thereof. Martha Rowe, administratrix, against the Heirs of Thomas Street. CTJON to recover possession of a fish- ing-room at Trinity ; and also to recover the sum of £50, being for five years' rent, at £10 per annum, from the year 1813 to 1817. Per Curiam. This case is very defective \Ji. ^7£UU1X%-C* Jib 1!7 OtCtlVVS (.XlCib l.UC;ialC ^ HUSfm Streets deceased, obtained a grant of the fishing-room ia question for James Rowe, pwm URT, NEWFOUNDLAND. S4f n followlnjy ilanter may the jutlg- ih and oil ; (Jed to give proceeding, he supplier J planter, if has, also, giving time er; which, ishery, and id venturers ance to the o preserve. noi immC' iges in the \rd against his hands; dances that e liability, e benefit of st the mas- ; and any 'ession of' a he servant, Her. igainst the r. a of a fish- •ecover the ent, atiilO 1817. f defective I ale ^ nus, int of the nes Rouie, who,/»in consideration of this service, allow- ed him to retain the use of the room during his life. All this is very unlikely, insomuch that ] should have suspected there were other causes for this arrangement if they had not partly been stated and admitted at the heanng. It now turns out that Eowe, becoming in- volved with his creditors in England, by way of securing his plantation from beii^ taken in satisfaction of his debts, obtained a grant through the intercession of Street. As against the creditors, this grant was void, because it has been repeatedly held that the governor cannot grant any part of the island adapted to the fishery. The whole of the sea-coast is already granted away by the sta- tute of William. As between tbej^ar/tw, however, to th6 arrangement, I must take as my guide the intentions which probably go- verned them. ■ It is stated by Adams, in an affidavit taken de bene esse, that he received a letter from Street, for whom he acted as agent in this island, in the year 1805* in which he acknowledged that he held the plantation in question by permission from Rowe, during such time as he thought fit to use it. This is corroborated by the fact that the property has actually since been given up (subject to a subsisting lease) to Howe's representatives. On the one hand, this is considered as a voluntary act, proceeding, ex mere motu, of Street's widow ; while, on the other, it is regarded as an admission of the right of Howe's representatives. With the latter view of the case, under all circumstances, 1 agree ; and, therefore, I hold them entitled to the atives, together with the reversionary interest iQ the lease itself. Beyond this, however, 2i 1820. Row» «. TIm lleirw*(T. 1 « 242 mo. BOWB *• The Heirs of T. Street. CASKS IN THE SUPREME C6UItT, I cannot go. — The property was leased to Machraire, and underleased by him, after a length of possef^sion, and witli every appear- ance of right, sufficient to warr mt a title in the lessor. If the Rowes have fallen asleep over their better claim, it is their fault, and should not prejudice innocent parties. i- ¥ 1 March 20/A. An ot'der of Court, founded upon the reveraal by the King in CouDcil of the decree of the Su- preme Coart,in the matter of Craw^ ford if Com. iasol- ▼ency. [Ante. p. 100 ; and note,tbat the judgment of the Chief Justice was reversed, merely because the proceedings io the Surrogate Court, preparatory to the declaration of the insolvency, ivere irregular in a material point. It by no means fol- lows, therefore, from this refusal, that Mr. Forbea'a ▼lews upon the points brought ini' mediately under his consideration are not correct.] la the matter of Crawfobd $c Co*s. Insol- vency. O N this day, David TasJcer, for himself and "partners, under the firm of Hunters ^ Co., and John Boyd, for himself and part- ners, under the firm ofJBaine, Johnston^ Co appeared in Court, and prayed that the judgment which they, together with James Stewart, for himself and piartners, under the firin of Stuarts ^ Rennie, suffered to go against them in favour of our Sovereign Lord the King, on the22d day of Decem- ber, i818, for the sum of twelve thousand four hundred and thirty-nine pounds, eleven shillings and threep^ice sterling, being the amount acknowledged to beheld by them lof the monies belonging to the late esjtate of Crawfords Sf Co., might be set aside and can- celled It was ordered by the Court, that as the whole of the proceedings under the insol- vency in this island was annulled and re- versed by the decree of his Majesty in Coun^ cil in appeal from the decision of this Court, wherein William Bennett and others, creditors of John Crawford Sf Co., of Great Britain, were appellants, and the trustees to the insolvent estate of Oratvford Sr C^, is^ this island, were respM>Qdent8, the judgment against V»vid Ttuhr, WilUam Johnston, •; .. JItT, MEWFOUNDLAND 243 leased to im, after a ry appear- it a title ill lien asleep Tault, and •ties. !u's. Inaol- for himself Hunters ^ fand part- nslondf Co that the rith James under the red to go Sovereign of Decern^ ! thousand ,ds, eleven , being the }y them lof e esitate of jg and can- lat as the the insol- ed and re- y in Counp a of this nd others, , of Great rustees to 1 &" Cq. in judgment Johnston, ntid James Stewart, and their respective partners in trade aforesaid, be cancelled and set aside. 1820. • .5 John Delany against Nuttall, Cawley & Co. ^A.CTION to recover the value of the schooner iH/aria, detained from the plaintiff by the defendants. Per Curiam. It appears by the testimony of all parties, that the schooner Maria was built under the direction, and ;vith the per- sonal assistance, of the plaintiff ; that the advances necessary for building were sup... p)i?dbythe defendants; that the schooner, when built, was carried to Harbour Grace, and there registered in the name of the de- fendants ; that she was one voyage under direction of the plaintiff, who was master, and made an unsuccessful trip to Labrador ; tliat, in virtue of the certificate of registry, the defendants obtained possession of the Maria at her return, and still retain her. It also appears that a custom prevails in this country of advancing supplies to dealers to enable them to bnild vessels ; that the ves- sels so built are held as securities, to be re- assigned upon payment of the supplies ; and that a reasonable time is allowed to the debtor to work out the debt and^ cledr the vessel. Now it appears that, whatever may hate' been the right of the plaintiff to the vessel as the builder, defactOy in the first instance, he had assigned the possession to the de- fendants bv whom it was reostert^d in the!!* own names ;< and, I mast presume, with the' privity and qonsdut of the plaintiff, beca^i^e Junt \2ih. It 11 usual in Ihii Couutry for two persons to agree that the one shall build a vessel and the other fur- nish ihe capital to enable him to do it; and that the vessel, when built, shall be registered in Ihe name of the parly who fiiroish- (>d the materials. Ill these cases the registered owner holds the vessel tn truft, tirst as a se« curily for the pay- ment of the money advanced by bim ; and afterwaids for the benefit of th« buider. ;• 1020. Dhlany V. NUTTALL, Caw- LBY Ol Cu. CA«E« IN THB SUPREME COURt, lie afterwards navigated her as master under «nch register. It is probable that they bold he vessel ,n tn.st. first, as a security lor he.r mvn debt and afterxvards for the plain- t ft. But this does not clearly appear and 81.11 less can I sakly conjecture how lonj? the defendants were bound to allow the plaintitf the use of the vessel to enable him lo Clear It. I cannot suppone any time, be- cause I have no data to fix it. But 1 will fr.l "^r / ?^^«""t« o^ t»'e parties, with the fc nAr^* i^"'^ ^''^"^*^ ^^ '*^«« than the IrLh? / ^*''''*'''T' ^''^ plaintiff- will have a right to demand of ihe defendants the difference or by paying the money due them, to demand the vessel itself ' i ! I i June \9lk Th« proper(y in >D article may b« coapUuly tram- fcrred to iha Van. <*••, et aa whilat it r*aaii)a in the store* of tli« vea^ dor. Trustees of Cullen & Co. against Trustees ot Miller, Fergus & Co. Wy S."''"'' ''^ "'''' «^ ^ -••^-" Per Curiam The sale of salt was com- plete ; and Miller, Fergus ^ Co. had done everytlimg to complete the delivery on their part. J he only circumstance which can raise a momenfs doubt in the case is that the salt remained in ihe stores of Miller Fergus Sf Co. But it is provided by he agreement that the salt was to remain in their C^lltir K *^^"''^^' ""'•* convenient for i^Um 4- Co. to receive it. After this the M^lt 18 measured out, the quantities deter- mined rcwi;)/, given for such quantities to the vendors, who charge Cullen ^ Co. with the full amount, and give them up the key of the store m which the salt is deposited^ -i iie aeiivery oi the key, i think, was suffi- ! * URt, aster under t they lioia fieurity for rthefilain- )})ear; and liow long allow the nable him ' time, be- But 1 will s, with the from the s than the fwill have idants the due them, NEWFOUNDLAND. 245 Trust ees a certain ivas com- !)ad done ^ on their hich can i is, that ■ Miller, by the n in their nient for ' this the 8 deter- itities to Co. with the key posited, as suffi* cient to conclude the case if there had been 1820. any doubt as to the terms ♦•convenient to - ■- . -^ * receive it." The measuring the quantities, Trntte.s nf cul- and passmj? receipts, were, in fact, sufficient »•''« & Co. to satisfy those words. I, therefore, shall t, . "", «. hold that Cullen 6r Co. had not only the '"]Tvfn^,l'" property, but the corporal possession of the k Co. salt, at the time of th^w ;>^olvency, and, consequently, that it pisses to heirtrnstees. Ihe mere circumstance f the > ifent o( Mil- ler, Fergus, Sr Co. pJh^^n^ t' ? key after- wards, cannot alter the c; t, unless it could be shown that the salt was re-delivered them, as a guarantee for the balance due on it. Jt is not necessary to go into the accounts to determme the fact of the salt being paid for. it was to be paid in account, and an acceptance at 12 months for any balance that might remain. There was a running account between the parties, and the ba- lance was not struck at the time of this transaction; and it was necessary that Miller, Fergus 6f Co. shr.uld draw the bill for such balance, as a preliminary step to its acceptance. JLN the matter of John Cook's Insolvency, the followmg question was submitted to the consideration of the L /tie/ Justice:— - The trustees to the estate of John Cooke, msolvent, wish to be informed, if a bill drawn by John Cooke on Ann Cooke for £\l I6s. Od., part .of it for a servant's pas- sage, and part for John Cooke's p&ssase should rank with servants' wages ; the ser- vant, William Jago, being shipped for a sum certara and his passage ; to which his Ho- SliMIM n>r>w.^ 4U.^ The Court has never considered j>«*5ag-«. Jnfy 24/*. Passage-monty can only rank aa wages on an iiisol- ven« PBtate, where >( baa etpressjy been agreed that it should be paid as pait of ihe hir« of tlie servant. 24d 1820. fn ibe matter of John Cook's lusolvency. CASES IN THE SUPREME COURT, mon^ in the light of wages, except, where in fact, it formed a part of the consideration for services, aiid was expressly agreed to be paid for hire. For example : if A ships B, a servant, and is to give him so much, part to he paid to himself and part to be paid to a third person for his passage, as wages, payment of which wages is usually by bills of exchange; if the bills turn out to be bad, they are consi- dered 38 a nullity, and the demand subsists in full force, as a demand for wages, entitled to a preference over all others in the settle- ment of an insolvent estate. Beyond this, 1 know of no preference for passage-money. Octoher \2th. Siipplira igoufxl for the fishery are advanced oil the crptiit ftf llie |»ro- dure «(f the voy Bue ; pn I, Uifro- iorc, if the pin- ceeds of thn vov- asf, iiiRifad of h<'io«; sppllpd to the pavni^'nt ot ihiise 88, are (livfded to another object, the planter nay be aiied im. mediately (or Ibe debt. Hunters & Co. against Archibald Graham. CTION to recover £3,000 being for goods sold and delivered as supplies for the fishery. , Defendant appeared in Court, and admit- ted the amount of goods advanced, btit de- nied that the account was payable until the usual period (31st October.) * In explanation of the large apparent ba- lance of account, defendant stated that he had already shipped a cargo of 1600 qtls. fish for Oporto, and had another in readiness to ship, the proceeds of both of which were intended to be forwarded to plaintifis' house in Scotland, and applied in payment of their acount. Plaintiffs contend that the supplies were issued m the course of the fishery, payable in fish and oil. Ji:'i:r Curiam^ It appears that the platn^ tiffs and defendant have had large dealings togetbev foe several years past ; and that, in KEWFaVNPX^AND. 247 the course of those dealings, fish, oil, and INewfoimdland produce, have always been applied in payment for supplies in the usual way of the fishery, in this year, however, the defendant has shipped tlie usual returns to foreign markets, without the consent, an4 beyond the control, of the plaintiffs ; ai? I the question is, whether, un-dersijcU circum- stances, he can set up the practice of the fishery as to the time of payme^it, in bar tp thfi present action? 1 am of opinion he cannot. Wherevei- goods are delivered, lay- .ment becomes due immediately, unless thp contrary be expressed, or irapUed, by the usage of the place or the understanding of the parties. By the usage of the fishery, when supplies are advanced for catching fish, the fish and oil, when caught, are received in payment ; they constitute the sijipplier's security for payment of his debt ; and if he finds them travelling out of his hands, h^ lias a right, in most cases, to arrest them, and, in all, to consider the deviation from the established usage as turning the credit into a present debt, and to recover his judgment immediately. Whoever wishes to avail himself of the usage of the fishery must conform himself to such usage. Jt appears to me that, in this ease, I'iupplies for the fishery ^ere issued, payable in fish, at the usual times ; and the defendant having disposed of his fish and oil, and put it out of his power to tender thenj in paymenf , has become lia- ble to the plaiatiffs as for a present debt. 1820. Hunters & Co. V. Gaah^m. 24) Oclol>er 19th. ^ he judgment of a Court of concuro 'ens jurisdictioa is a bar to an action between the same parties upon the fiame subjecLmat- ler, however erro- neous such jiidg* inent may have been : but where a new action is brouaht, includin? tome matter which had been adjudged on the former trial, and some which had not, and the jury assess the damnges 8e|iarate- hf 'he Court will give judgment for that part which ^''as not decided in the first action. CASES IN THE SUPREME COURT, Jennings & Long against Hunt & Beard, Summary proceedinfTs under 49thGeo. don.?I T*''i^'.^"^^ n,. Gd. damages done t^e piamtiffs in their fishery at Lab;.a- betL ^K*'^" ^''^^^y ^^^'"^ ^"d adjudged CouTat l!'aLaTr. '''''' '' ''^ «™^ spvTIT!*^"* " 'P'''''*'^ j^ry impannelled, and ChJ? 7'??^««^f «^«'nined. after which, the ^^^.^hat^ed the jnry to the ibJ- That the case before the Court comprised mixed issues of law and fact, and mainly case was important, and appealable, it ^nrJf T "P"*" ^^^ ^^^^^'-d '" a specia be ;r,ir:f'r*''^ ^^^ ^"P^"«»" Courtmight be enabled to review the whole case with exactness, and apply a suitable judgment m the event of its reversing any opinion Ttt th " \'Tr^'^ ^"^^^ '-" «' ^^'"-- ildt the facts for the consideration o*" the Jury were whether the defendants, o their acjro;* n' '\''' ^••^^^^' ^'^ commit the acts of alleged trespass in removing and detaining the plaintiffs' nets? and supposing ;r/^ ^.'l^ ^^"" '^^^ ^'^«t damages had tie plaintiffs sustained, both in the'imme- diate loss of their nets, and consequent t m??K '"i *r'"; ^'^'''^ • ^*»^* length of time the defendants, or those who held before them had possession of the rivers in Sandwich Bay, and to what extent such possession had been ?-which of the par- ties had. in fact, the first occupancy of thi. U;r„ur •'" ""i'«'^' iast season ^ And this might mvolve a question of what ex- :OURT, T & Beard, er 49th Geo. •«?. damages y at Labra- nd that the d adjudged e Surrogate celled, and which, the to the foF- comprised id mainly id, as the salable, it the facts, a Sj>ecial ourt might case with judgment Y opinion f the law. ion r'the , o their >mmit the »ving and opposing ages had e imme- isequent ength of ho held rivers in jnt such the par- ancy of ' And 'hat ex- NEwrcUNDLAND* 249 J020. 4itNNINGS & LoNo tent of ground was necessary to the proper cusfomary use of such phicea for a sal- mon fishery ? Whether the several instru- ments before the Court were proved as laid m evidence? and to what parts of the case Hdkx&Vaud the former judgment applied ? The Jury then retired, and returned the followin'r verdict:-" The Jury find the nets in this case were taken up by Mr. Beard, ^nd per- sons under his direction, and not by JVJr Wakeham; that Mr. Beard had no corpoi real possession at Burn's Cove, but that he had a net, with some materials and utensils there apparently for the purpose of carrying- on the salmon fishery, previously to the arrival of the plaintiffs, and that plaintiffs had possession at Cooper's Cove. ''Damages estimated as sustained by plain- tifls, VIZ. : — . " At Bum's Cove, 14nets, with cord- age, buoys, &c. and 106 salmon £40 "Cooper's Cove.— 25 nets, with ^^ cordage, buoys, &c 70 *• Loss of salmon voyage, deducting uf^^^^'r-r ...250 l^oss of subsequent voyage .... lOO * The jury find that the defendants, or their predecessors, had possession, and an esta- blishment for a salmon fishery at Eagle and other rivers in Sandwich Bay for forty-eio^ht years ; but there is no proof in evidence^'of the extent of coast used by this establish- ment, or of any exclusive possession out of the rivers. *u " Jy^^ ^"^ ^^® documents produced from the GoverPiaent-office to be proved. They also find the proceedings before the SurrL gaie. Captain Robinson, at Sandwich Bay to be proved as laid in evidence. Thev 2k ' 250 CASES IN THE SUPREME COURT, 1820. leave all questions of law to the considera- S^^'^^^^^^ tion of the Court ; and if, &c." JENmN08& Cur. adv. vuU. V. • , Hunt & Bbard. ~— October JO/A. On this day the Chief Justice delivered the following judgment: — The defendants, Philip Beard ^ Co. are engaged in an extensive salmon fishery at Sandwich Bay, on the Labrador, where they have a fixed establishment. The plaintifis, Jennings 4' Long, are Bri- tish subjects, and reside at Halifax, in the province of Nova Scotia, from which place they have, for a few years past, resorted to Sandwich Bay, for the purpose of a salmon fishery likewise. In the pursuit of their common occupation, the parties appear to have been brought into contact upon dispu- ted points of right ; the defendants claiming exclusive property in all the rivers in Sand- wich Bay, as well as the circumjacent coast, within three miles of the mouths of the rivers ; and the plaintiffs contending for the right to place their nets in any vacant spot not actuaUy indispensable to the others' fishery. While the parties were in difference, the Surrogate, Captain Robinson, of His Majesty's Ship Favorite, arrived at the La- brador, and the defendants. Beard & Co., immediately brought their case before him, alleging their rights, and complaining of the trespass which had been comunitted by Jen- nings. The Surr6gate caused the parties to be summoned before him on the 11th of July last, and after a hearing, ordered Jen- nings to make certain reparation to Beard & Co., and remove his nets by one o'clock ^K I'll' I -■ ...•'. nil <■!».. . »..J ...•*l- ; ;g iiaj ; aiiu, Willi u ViCW OI Car- rying this sentence into effect, he issued pro JRT, considera* ;. vult. e delivered f ^ Co. are 1 fishery at where they ig, are Bri- t'ax, in the k^hich place resorted to 9f a salmon lit of their } appear to ipon dispu'' its claiming rs in Sand- icent coast, ths of the ling for the acant spot the others' difference, on, of His at the La- ^ard & Co., before him, ning of the edby Jen- the parties the 11th of dered Jen- a to Beard »ne o'clock icw of Cur- issued pro- NEWFOUNDLAND. cess of execution, and directed it to one Wakeham. From some unexplained cause, Wakehnm did not e::;:ecute the process Ijim- self, but the plaintiffs' nets were actually taken up by Beard, or his servants, and car- ried to defendants' settlement on Eagle River. The plaintiffs, feeling themselves aggrieved by the removal of their nets, and the consequent loss of their fishery, came to St. John's, and sought their remedy by the present action. The case has been put to a special jury, under the direction of the Court, And they have returned a rtrdict for the plaintiffs, assessing the damages at £460, but subject to the opinion of the Court upon the facts which are specially set out in the Terdict. The whole case turns upon the defence : it is for the defendants to justify the facts of which the plaintiffs complain, and to show that, by law, they are not liable to the consequences. There are several pleas to the action, but the principal defence is, that the mdtter at issue has been already heard and adjudged by the Su«"">Qjate at Labrador; and, certainly, if it can be made out that the points at issue between the parties have been already determined by a competent jurisdiction, it is not for this Court collaterally to call it in question, how- ever croneous such determination may be. It is clear law, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is conclusive as evidence between tLe same parties upon the same matter directly in question in another Court, until such judgment be reversed by a Superior Court. But was there, in fact, a judgment ? — was there that conclusion from the law and facts of the case, which is presumed to be formed in the unprejudiced bosom of the judge, and is the essence of a judgment ? It is contend- 251 1820. Jennings & Long ». Hunt Si Bbabd. I 252 CASE8 IN THR SUPREME COURT, 1820. JlCNNINGS «Sf JLONG .1 ed by the plaintiffs, that there was no sach judgment; that it appears ujion tlii face of the buiTogates own procetiuings, that he V. ijad received the orders of his Comraander- «UNf & Beahd. Jn-chief, which he merely obeved as a sub- ordinate oflicer, ^vhSioutqueslior^ as to their legal authority, or cxerrising ^ny opinion of ms own upon tlie m( rits of the case. Jf tliis be the fact, then there h^s l>f eu no jutlginant and the defendants cannot be prof^cted unl dor it. la Looking into the proceedings which iook place before the Surrogate at Labra- dor, It does appear that he had received certain rules and regulations, in the form of a proclamation, expressly r.pplyi„g to the case before him and that hi. decision was lounded upon those regulations ; but then it II "f f.'^l'" explanation of this circumstance, that the Governor's proclamation necessarily iorraed part of the Surrogate's proceedings, ?n'!!i7f^'"'^^*''* '**^ ^"'^ "P^'* which he founded his judgment. In support of which position, a bundle of orders and other acts pt the local government has been handed luto Court, containing a series of regula- tions and observances for the trade and fish- mes of this island, and variously affectinff the persons and property of its inhabitants! from which 1 am to infer that a legislative authority in this government, unknown to the laws of England, but claimed under a prescriptive exercise in Newfoundland, is now for the first time, soug .♦ to be esta- blished m this Court. So larg,. d, indeed, so dangerous, an innovation t. .n the accusi ^tomM pnnciples of aoJ* ^tion in the ^ t, ought not to be ^^ded over unob- served. ^ If the proclamatiG i by which the parrogaie IS stated io have i; i^ ?-overned be legal, then, indeed, there cao .e^no doubt as no «ach th"i faoe of gs, that he ummander- id as a sub- 1 as to their opinion of se. JltJns 'judgment, )5 jcted un- ngs which at La bra- id received he form of 'ing to the cision was but then it umstance, tecessarily >ceedings, which he t of which )ther acts m handed 3f regula- 3 and fish- affecting labitants ; egislative cnown to i under a dland, is ► be esta- I, indeed, beaccus- i in the er unob- hich the overned, 10 doubt N£WFOUNDLAND. that it is as binding on this Court as it was on the Surrogate Court ; and that it will be equally binding on the King in Council, should the case go to an appeal. There is no dispensing power in Courts, and that which was the law of the case at Labrador, will be the law sn London. I om bound, therefore, to apply to it the same considera- tions which, 1 think, would be applied by the Lords of Appeal. Jt is a determined principle of law, that the King holds a legis- lative power over conquered or ceded coun- tries, bnt that no such power is held over countries originally settled by British sub- jects. This Island and the Labrador were first discovered by the English, and peopled by emigrants from the United Kingdom. But the application of the principle tloea not rest upon a question of geography, it is expressly declared by the statute 49th Geo. IlL, chap. 27, that the Courts in Newfound- land shall be governed by the laws of Eng- land, so far as they may be applicable ; and the same course of administering justice, is, by the statute 61 Geo. IJL, chap. 45, ex-' tended to the Labrador. These statutes are affirmative of what was before the com- mon law of all the English colonies ; over which it has been solemnly recognized in the celebrated West Indian case of Campbell v. Hall (a), that his Majesty holds no legisla- tive authority. The King has, indf ed, large prerogatives; but the prerogatives of the Crown are defined by the constitution, and form a part of the law of the land. It will not be contended that there is a prerogative peculiar to Newfoundland ; and if there be not, then a proclamation for regulating the trade and fisheries of this island and its de- (a; Cowp. Bep. 804.; ■ 253 1020. JENNINOStb LONO V. Hunt & Bbard. 254 CASES IN THE 8UPBEMB COUBT, 1820. Jennings <% Long 9. % f , pendencies, must rest upon the same foun- dation as a proclamation for governing the trade and fisheries of Great Britain. " Pro- clamations," says Blackstone (b), " are bind- HuNT & Bbard. ''?S "Pon the subject, where they do not either contradict the old Jaws, or tend to establish new ones, but only enforce the execution of such laws as are already in being, in such manner as the King shall judge necessary." And 1 am not conscious of having seen any Act of State, in modern times, which has not been perfectly in uni- son with this first principle of the constitu- tion. It is a mere sophism to distinguish between regulations and laws. Everything which prohibits thai which was not prohibit- ed before, is a law. But to bring this matter at once to the test, let us look at the code of regulations for the fishery and trade on the coast of Labrador. The first article de- clares "that no inhabitant from Newfound- land, nor any person from any of the colonies, shall, on any pretence whatever, go to the coast of Labrador ; and if any such are found there, they shall be corporally punished for the first oflTence ; and the se- cond time, their boats shall be seized for the public use of British ship-fishers upon that coast." A regulation which debars a million of his Majesty's subjects from the exercise of a conimon right, submits their persons to Ignominious punishment, and their property to forfeiture, may well be called a law ; and if it be, however penal its provisions, I am bound to enforce them. Now it is well known that the principal fisheries at Labra- dor are actually carried on by people from this island ; and 1 have purposely put this case, because I wish it to be cleariv seen to ■I {h) Vol. 1. p. 270. 7RT, same foun- 'eming the in. " Pro- *' are bind- jy do not or tend to snforce the already in Ung shall conscious in modern tly in uni- i constitu- listinguish Everything t prohibit- his matter I the code I trade on irticle de- ew/oand- Y of the whatever, ' any such orporally id the se- ed for the jpon that I a million exercise ersons to property aw; and ns, I am it is well It l.abra- >ple from ' put this V seen to NEWFOUNDLAND 255 1020. Jennings & LONO what extravagant consequences the principle contended for must lead. The public in- strument more immediately connected with the proceedings before the Court is, indeed, of a very different character ; and 1 am Hunt & Bkard. aware that it was framed with the benevo- lent view of quieting the differences which had arisen at Sandwich Bay. But I appre- hend that the claims of individuals to the right of fishing in the seas and rivers of that bay could not lawfully be aflected by the re- gulations of the Government, llissaidby Lord Hale (c) "that the right of fishing in the sea, and the arms and creeks thereof, is originally lodged in the crown; but, al- though the King is the owner, and, as a con- seauence of his propriety, hath the primary right of fishing in the sea, or creeks, or arms thereof; yet, all the King's subjects have regularly a liberty of fishing in the sea, and the creeks and arms thereof, as a public common of piscary, and may noty without in- jury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where the King, or some particular subject, hath gained a propriety exclusive of that common liberty, either by the King's char- ter or grant, or by custom and usage, or pescription." This doctrine is recognized in several adjudged cases; and it was held in a modern case (d), that where one party claimed a fishery in an arm of the sea, in exclusion of others, it was incumbent on him to prove such exclusive right, as the presumption was in favour of the public Therefoivn whether any exclusive right of fishing :;>uld be claimed in the rivers and. seas of Sandwich Bay, and, admitting it could, how far the boundaries of such exclu- (c) H'irirare'i Tract*, toI. 1, (d) 4 iianotres, 2102. ' - p. 11. 256 ''"ES IN THE lUPBEME COUBt, 1820. Jknnings iSc Long V. I'i 1 V ■■■. faii^t ciaira might extend, were questions of private right, depending on proofs, upon which the parties interested were clearly entitled to appeal to the law, and take the UuNT&BsABD. juf'gment of r. f ' V rent Court. The 51st Geo. 111., empowers the Surrogate to hear such <]|uestions, and directs him to decide accordmg to the laws of England. If such laws are insuflicient, 1 apprehend the pro- per remedy is an application to Parliament. Laying every thing out of the view of the Court but the judgment of the Surrogate, and applying it to the case before us, we must recur to the questions. Was there a Court? Did it pronounce a judgment? It is unne- cessjlry to ref eat what is so well understood, that if it is possible to come at tiie - rjstunce of the proceedings, this Court is altogether regardless of the form. The proceedings set forth the opening of the Court, the at- tendance of the parties and their witnesses, the statements of their several cases, and the ser:tenoe of the Surrogate. The true issue before hi n was, i apprehend, whether •n ex'^'iusive ^ht of f]->hery in the contested places could be maintained? and it was ir the party setting up such right to have l^'o .^d it. The Surrogate, however, appears to have considered this point as settled by the pro- clamation ; and he ordered the nets of Jen- nings to b ■*?m^ ed, according to the lin its therein pif ril 1. All tha cau He said is, tlr^t he mistook that for law which was not la , and so far that his judgment was erroneous , but still it is a judgment, in form at least, and can- not be questioned in a collateral way. Jia lex scripta est, I am bound to hold that the judgment at Labrador, so far as relates to the removing i UBT, »feWPo»NbLA!ID, 267 Li^stions of )ufs, upon re clearly 1 take the The 61st ite to hear , to decide if such [ the pro- 'arliament. iew of the Surrogate, s, we must e a Court? it in unne- iderstood, - ii'jstance altogether •oceedings t, the at- witnesses, cases, and The true , whether contested it was ' ir to have 19 to have ly the pro- ; Js of Jen- ihe limits e mistook and so far ; but still , and can- Bray. Jta dgment at removing of the nets, and the consequent losses of the plaiutilfs in their fishery, is a bar to the pre- sent action. In giving this opinion, how- ever, 1 desire to bennderatoodas not deter- mining any rinestion of right at Sandwich Bay, but mayment. MEWFOVNDLANO. 250 p. W. Carter, Ksq. aqninsl T. B. Kendell, Bt sance, or a total neglect to execute Iho orders of his principal ; but for 8 mis-' feasance, or partial and imper- fect performance, be is respousibie, TVhother he is to be paid for his trouble or not. And for a mal'fcazanco, or doiug an aot which one ought pot to do, every man is 8Hswera-> Trustees of William Young against Att- WOOD 8s. Hayn£s. Ai N action to recover the sum of £270, being the amount of the value of the schoon- er called the Enteiprize, which the insolvent, Youngf had ordered the defendants to in- sure, in the year 1819, and which they had neglected to do. The vessel went on a sealing voyage the following winter, 1820,. and was lost. Per Curiam. I am of opinion that the plaintiils cannot recover, on two grounds : First, — Because the undertaking of the defendants to have the schooner insured, if actually given by them, was a voluntaryi undertaking'^ and being such, cannot support an action for non-feazance, or not perform- ing it, unless some step in the course of per- fortnance be proved to have been taken ; and there is no proof of any step being ta- ken, or any part of the undertaking (if made^ l)eing actually performed. [See the reasoning of the judges in the case cited 1st il^/arjAa/r^ Insurance, page 207, and Paley's Principal and Agents page (12, and cases there collected.] Secondly, — Because the undertaking, or contract, to have the schooner insured was not clearly given, but was contingent, and made to depend upon the will of Altwood, then in London. This 1 collect from the evidence of young himself, who says, ** that he will not uudertake to swear positively^ RT, t, 1 must I as g'ivin.i; lie defend' \imt Att- n of £270, le schoon- insolvent, ants to in- 1 they had veiii on a ter, 1820^ 1 that the rounds : ig of the insured, if voluntary^ ^tsuppoi'i perforai- i'se of per- n taken ; being ta- taking (if [See the ! cited 1 st id Paleifs and cases aking, or ured was ^ent, and Atlwood, from the ys, " that ositively. NEWFOUNDLAND. that Ilaynes actually undertook to have the insurance eflected ; there were some doubts." And again — ** when witness applied to have the schooner insured, Hayucs said that he had orders from his partner, Attwood^not to extend their business, but that he would send OH the order^ From this evidence I collect, that Mr, Haynes expressed his give. 12G3 1821. Trustew of Wm. Youno V. Attwood & irlAYNBS. February 5thi An sdmissionof (be cause of action by some membera of a commercial RttB, will not bind the other (lartners* m ^ mv^M-tw ' ,w r " 264 If I '1, 1021. Hunt V. Hunt, Stabd, Preston & Oc. CASES IM THE SUPREME COtltT, Two of the defendants, Henry Hunt and John Halt Noble, were concerned in trade in London, under the firm of *' Noble Sf Hm««,-" and they were also engaged, toge- ther with Thomas Stabb and John Preston, in another concern at Newfoundland, under the firm of ** Hunt, Stabb, Preston 4' Co. The two firms had very extensive deahngs together, in the course of which the detcnd- ants were in the habit of remitting the e- turns of their fishery to Noble 4^ Hunt, ^ud drawing bills on them for the payment of the current demands of their establishment. It is stated that, in the year 1810, the draft of Hunt, Stabb, Prestcn ^ Co. upon Noble ^^ Hunt were greater than they had the means of meeting ; and that Hennj Hunt, the ma- naging partner of Noble ^ Hunt, applied to the complainant to advance monies for the purpose of meeting the drafts ot the respondents, and that the complainant did advance about nine thousand pounds ; but whether upon the credit of Noble ^ Hunt, or of Hunt, Stabb, Preston ^ Co. is in dispute between the respondents. Hunt Sf Preston ; the former slating in their answer, that the money was borrowed of the coni- plainant on a mortgage of the property m Newfoundland ; and the latter denying that (ixct, and affirming it was the balance of an account current solely between the com- plainant and Noble ^ Hunt; while the com- plainant appears, from his affidavit, to have considered he had a claim on both firms. Be the fact as it may, for the present, the complainant, insisting upon having some se- curity either from Noble ^ Hunt, or from the respondents, deeds of mortgage of the property in question were prepared m Lon- don, anil execuiea oy fcurcc x:i isi=; tt-.p-^si^j= ents, Hunt, Noble & Stabb, some time la r Hunt and led in trade *• JVoWe 6f iged, toge- Im Preston^ land, under ston 6f Co." ve dealings the defend- ;ting the re- Hunt, and 'Hientof the iihtnent. It the draft of on Noble ^ \ the means me time in Newfoundland* 206 1821. Hunt V. Way, 1816, and sent forward to be executed by Preston, who was at the time in New- foundland, it appears by Mr. Prestons answer, that the mortgages were handed to him, and that he excused himself, alleging fl"''^, Si^bb. as a reason, his apprehension of end angering '^^^^'^^ & Co. the credit of their house by the necessary publicity of recording the deeds, and at the same time professing his desire to see the complainant secured. Jt further appears, that soon after this refusal, on the part of Mr. Preston, to execute the mortgage, he wrote a letter to the complainant^ dated 20th June, 1816, in which he acknowledges the receipt of a letter from the complainant, to., gether with the mortgage»deeds^ to which lie says he has no objection to accede, but for the necessity there was of having them recorded in public Court; and proceeds as follows: — "It lias struck me you would have proceeded better by a bill of sale, and a redemption bond ; pray turn over this in your mind, and if you think so,. Mr. Hunt • or Mr. Stabb may use the enclosed power of attorney ; possession may be given, ahd no enrolment required.'* The power of attor- ney enclosed in this letter was fron^ the respondent, Preston, to his partners, Henry Hunt and l^homas Stabb, giving them a ' joint, or several, authority to sell and dispose as they, or either of them, should think fit, for his (^Preston's) mcst benefit and advaflta^^e, all his share tctd ritarest in .the plantation in question, tlpo? receipt of this power and the letter in '^u^rh. it was enclosed, the deeds in proof before the Court were pre- pared and executed by the; ref&poadeat!}. Bunt for himself, and Jokn Hatt Nebte (un- der power for such pat pose), also, by Stdbb for himself, and Hunt on behalf nf JPreston. by virtue of the above-mentioned power. 2m .N r I \ 260 1821. Hunt V. Hunt, Stabb, Preston & Co. CASES IN THE SUPREME COURT, It appears that Mr. Preston afterwards went to England, and refused to confirm or acknowledge the act of his attorney ; and after ineffectual attempts at an amicable ad- justment, the present proceedings were in- stituted. - At a former hearing, in another stage ot this case, 1 had occasion to observe upon the singularity of its situation : one of the respondents, Hunt, had gone the length of confessing the complainant's mit, and con- firmed his bill in every important particular ; and two others, Noble 8c Stabh, did not seem disposed to dispute it. They have since done that which J consider to amount to a similar confession of the cause of suit ; and the remaining respondent, Preston, is left to contest it alone, and in the face of the ad- missions of his partners. A case so situated, is, certainly, very peculiar, and one for which I cannot find any precedent or re- semblance. Upon principle, I am not aware that it has been held that the admission of the cause of suit by one partner in trade is conclusive against the other partners ; but it is to the whole extent of the interests of the party confessing, and is strong proof against the firm, and requires stronger proof to repel the conclusion which must other- wise be drawn from it. Two objections are raised by the res- pondent, Mr. Preston ; one, to the want of consideration for the deed, and the o|her to the imdue manner of its execution. In sup- port of the first objection, he states in his supplementary answer, which is upon oath, that he believes the debt of £7,280, claimed to be due by the complainant, was contract- ed with him in a running account, prior to .♦Kft y^ftT 1816. by the firm of Nohle & Hunt, Boiely upon their own credit and^account. IRT, afterwards confirm or trney ; and nicablead- ;s were in*- ir stage of serve upon one of the 18 length of •t, and con- ; particular ; lid not seem have since amoant to a f suit; and on, is left to of the ad" so situated, md one for ident or re- tn not aware dmission of in trade is rtners ; but interests of strong proof ;ronger proof must other- by the res- I the want of the ojher to m. in sup- i states in his is upon oath, ,280, claimed was contract- unt, prior to ^oble & Hunt, and account. NEWFOUNDLAND. 267 1821. Hunt V. *This, however, is expressly denied by Mr. Hunt, in his answer, which is also upon oath, and is corroborated by the entries in the books of the respondents at Torquay, „ ^ and the depositions of Glover and Fitcairne Pbeston a'co. as to the circumstances under which the entries were made. Still, however, if this suit were primarily instituted to recover the sum of money which is claimed by the bill, as the consideration for the deeds, 1 should feel inclined to give the respondents the be- nefit of a cross-bill, for the purpose of elicit- ing any circumstances within the private knowledge of the complainant which might show how the debt arose, and from whom it was actually due ; and the more so, as the complainant's own affidavit, which is »a evi- dence, under the statute of 5th Geo. IJ., c. 7, does not expressly state the fact of having advanced the money on the credit oSHunt, Stabb, Preston & Co. He says, that from time to time he made large remittances to Noble ^ Hunt, in order to enable them to support the credit of the respondents' house, by paying their bills, and preventing their dishonour ; but it does not follow but that he might have made such remittances pure- ly upon the credit of ISoble ^ Hunt; and that he did not look to the respondents alone, does appear from what follo-ws, viz. : that he insisted upon havins some ample security from Noble^- Hunt, or from Hunt, iftabb, Preston 4' Co. Without offering anv opinion as to the true state of the fact, l think that I could not have refused to leave the case open to a cross- bill had it materi- ally rested upon the question, whether the debt contracted with the complainant was on account of respondents, or on account of lyohle & Hitid ? ikjl iliut the debt was contracted in some way or other, and is still 11 • Si 268 182 r. Hunt V. Hunt, Stabb, Prbston & Co, CASES IN THE SUPREBIE COURT, due, is no where denied ; nor is there any- thing which appears upon any part of the proceedings before the Court, from which a doubt can reasonably be raised to the con- trary. This debt, although it were admitted to be contracted by Noble ^ Hunt, and sup- posing such to be the fact, is sufficient to support a guarantee on the part of the res- pondents. The only question before the Court, then, is, are the deeds in evidence good and valid instruments in law? The respondent, Prestcrit objects to them so far as they pro- fess to be executed in his name ; that he did not authorize a mortgage^ but expressly di- rected an absolute sale of the property. But let us look at the whole case : A debt was due to the complainant, which three of the respondents agreed to secure by mort- gage of theirjoint property in Newfoundland, The mortgage-deeds are sent on to the re- maining party, who objects to executing them merely because it was necessary to record the mortgage ; at the same time pro^ fessing his desire to see the complainant se- cured, and pointing out a different mode of effecting the same object, viz., by a hill of salCf under which possession might be given without enrolment, and a redemption-bond. And in the very letter containing the sug- gestion, a power of attorney authorizing a sale is contained, and laid at the discretion of the complainant, to be used in the man- ner pointed out, ifhe should think it eligible. After this, how is it possible to maintain that he intended an absolute scUe of the pro- perty for money in hand, and notasB. security for the debt due to the complainant? Why was the power of attorney sent to him, if a sale to a stranget were intended of the very property to which the complainant was looking ^s a security for his debt? Why was ■t 4 RT, NEWFOUK.;i.AND 2(19 tliere anv« art of the (1 which a ) the con- i admitted I, and 8up> ifficient to f the res- I the Court, ! good and ;spondent, J they pro- bat he did jreesly di- property. : A debt h three of ! by mort- foundland, to the re- executing icessary to 3 time pro^ ainaut se- t mode of r a bill of kt be given tibn-bond. g the sug- thorizing a discretion I the man- it eligible. ) maintain f the pro- B a. security nt? Why t to him, if 3d of the ^inant was Why was he addressed at all ? Taking all the cir- cumstances into consideration, before and at the date of the power of attorney, and the letter of advice which accompanied it, 1 should say that it appears to have been the intention of the respondent to secure the complainant ; and that the power which ho gave has not been exceeded. 1 must, there- fore, comply with so much of the prayer of the bill as goestothe delivery of the posses- sion of Adam's and Lady's Ships'-rooms, together with the title-deeds ; but I must * be understood not to pass any opinion upon the debt, whether it is the proper debt of the respondents or of Noble ^ Hunt, for the reasons I have already stated. Should that fact be of importance to either of the parties, it may form the subject of a subsequent inquiry, in which the respondent, Preston, will have the benefit of all the evidence he may desire to adduce respecting it. 1021. Hunt V. Hunt, Stab8» Preston & Co. { 1 r\- ?. ■II: 270 1821. June ZQth, If a fire take* plaoo in a ship from a notorimn defect in the mode of fiilioghcrup, or from any other gross and culpable neffkcton the part of the oumers to adopt the ordinary and necessary means' of preventing it, Ihe exception of " Firb" iu the bill of ladinf< » will not protec . tHsoa from a li^in'kv to answer i-.i ito 4i\» mnge oeC'sv«V.<;n;d by such fire >a goods on board the Yessel. CASES IN THE SUPREME COUUT, Hunters & Co. aj^ainsl Owners of the Schooner Morning Star. CTION to recover the amount of da- mages clone to a cargo of flour shipped by plaintifl's on board the Morning tStar^ a ves- sel belonging to defendants. The fact of the cargo being shipptd and damaged by ^re is admitted. A bill of lading, with the usual exception against fire, was produced ; and it was contended that the tire which injured the car^o was accidental, and, therefore, that the defend- ants were not liable to answer for the con- sequences of it. This was the principal pomt in issue. Per Curiam. •* Fire " is excepted out of the risks of carriage, by the terms of the bills of lading, as well ns by the provisions of the law. It stands upon mainly the same footing as perils by sea, or other casualties and accidents which are presumed to be out of the power of the master to prevent ; but, like other perils, there must be all due care taken to prevent fire. If it be caused by negligence, which the master might have prevented, or from an original and apparent insufficiency of the thing which was to con- strain or prevent it, it is not an accident, and lays a fair ground of action against the owners. They impliedly undertake, as car- riers, that the vessel shall be staunch and sound, and everything on board essential to the safe carriage of the cargo, properly fitted and secured for the purpose to which it is to be applied. Nothing surely can be more necessary than security against the dangers of fire, particularly when made below, and close to the vessel's bulk-head. Now, ap- plying these preliminary remarks to the 3URT, lers of the lount of (la-" ghippecl by fiitar, a ves- ihipped and A bill of ion against ) contended car;;o was Ihe ciefend- for the con- le principal }ptcd out of 3 of the bills rovisions of ly the same ir casualties id to be out event ; but, all due care caused by might have id apparent was to con- ccident, and against the ake, as car- taunch and essential to )perly fitted hich it is to in be more the dangers below, and Now, ap- rks to the NEWFOUNDLAND* 271 1021. 11 NTEUS JSC Co. V. Owners of ^ >j» '•r^^> y /IPPLIED ^ _? IIVMGE . ints SS. 1653 East Main Street E^ Rochester, NY 14609 USA ^S Phone: 716/482-0300 ^ Fax: 716/288-5989 e 1993. Applied Image. Inc . All Rights Rasarvad A i\ ^ ^1. \ \ •V ^ 1 1 I - ^ if m 272 1821. CASES IN TH£ SUPREME COtJBt, • — ^TJnf^l '^.^ ^J^'^'fJ^iice, With the assist- Cm. rr«« th. Bur. !^,"J^L « r •'"'*'«^«* ^^ 'he Court of Sessions, wMt. Court. & f '^'"f preferences of payment to claims of ChJi °/ •''• t "^'^'^^ description Tn the order in H^.ich Ch..f J«s».c.. bey appear to have arisen in the cou^e of inn„l'"f "^7^^- * "^^e*- could I Jim upon what authority this rule was framed ; Inch « '*'''^^"^^"*="" ' ^"d *^^^ 'f'^ ^ere, «nch usage appears to have been repealed! imhTfl' 'l"?''««^««totes, at ieast. by the trlnnf ''"r^"*^* ^''»*^»' admits but two pre- g^., which are to be paid i/equal propo?^ eq.iaily ^"'^'^'W'^'* who' are to wnk it lia« always appeared to me that the rule, however well-intended, was not within to iiTr^^'h ^""'•** ^'"^'' •» authorh^ed iffectfnJ'f. ™'"5 of pw/i.., but no rules aHecting the r.^/i/, oj ifidividuals, which be- wmwA Ji" '^''''' . ''*'"'• ^"d «••« exclusively withm the provmce of Parliament. ^ nT.L I .^'*^ '"^ *^ »^e this :~A current sup. Konn^^ universal usage of the fishery, is I mind to supply every article essential to the conduct and completion of the voyage f he wishes to entitle himself exclusively to Its proceeds ; any articles indispensable to current demands upon the voyage equally and od wuhout providing such articles, ho ^.^,«»«de'-ed I able to admit them ratably w th his own claim. This holds, generallv with rejrard to nil anvir.!;-- . u..! Hl^eraiiy, With regard .o all »oppirr,Tbot Ihr'afe ° . ^ " ''"ri'"ci3 i uuK cnere are fr.^..l ""I"' °f ™PP"" "•''«'' """" » pre- ferable claim to every other, namely A«J. |««W and /„.Vri, ; Ld tbe'rea^nSS: i'^i^~r?."i'''-^«'y>»? ""a lien V— ©--«= aw UI3 pussessioa for work fui4 COtJUtt ith the assist* t of Sessions^ : to claims of der in which the couiise of could leam i^as framed; recency of en if it were^ m repealed^ east, by the liuttwo pre- ervants* wa- lual propor- are to rank me that the i not witiiiii authorized It no rules , which be- exclusively t. ^ urrentsup- 5 fishery, is ssential to le Voyage, dasively to nisabJe to self, forms e equally es the fish tides, ho n ratably generally, there are *e a pre- "ely,^*/4- >n is this : IS a lien NEWPOUMOLANO. 273 answer of the Chief Justice. labour performed npcn sucn goods. Thus, 1821 the fish-maker for the ihakino:, and the V^i—l^l^ earner for freight, have each tlieir lien ; and c... from th.s.r neither is bound to part xvith the goods rog.t. Court. & until he IS paid to the full amount of hin demand. The conveniciniee of the fishery has made this lien ambulatory in most in- stances, and in general cases it trarels with the finh into the hands of the regi^^r re- ceiver of the voyage; beyond these two, I know of no preference among current sup- pliers, and even thesef are not properly j9r£- ferences, but specific ■ liens upon the fish Itself, eitisting at thetihie it passed into the hands of the ri^cefver^ and received by him under an implied contract to hold it 6ubject to sach iien; thetrU8tee8,ofcouroe, take the fish subject to the same olHigations under which the insolvent hdld it« t * i * * * . f ^» ( , .1 > I ■ i .1-2 1 \i (•••.-: In the matter of John M'Gbath's Will. Augu$tm Ti _ HIS was an appllcaiiotii by one of the executors, Fetidergast.ib the Court, to call upon Fox, the other executor, to give into Court a faithful return ;ofitbeestile niainte- ren, I sug- executors, ced in the dividends priated as ren should, ntitled to a IS adopted so agreed sted in the oftheSu- der, would I paid over ide. against pon plain- come to o pay the ce for the pping the ier in the prtaic or« ig officer, >rt, at the ited, that ascription was the NEWFOUNDLAND. reason of his firing at her, and compelling the roaster to pay for the shot. Certain written documents, purporting to be orders of the Governor and Commanding Officer of the Forced, were laid before the Court. It was also shown that the vessel called the St> Vincent was described in the register as a brig. Per Curiam. The single fact at issue be« tween the parties is, whether the St. FtM- cent was well described in the let-pass, m which she is mentioned as 2i Brig instead of a Brigantine. Had the case rested upon this point alone, I should have required the evidence of persons more coAnpetent than myself to say whether, acoo^tlr'ag to common acceptation, the word *' bifig'* in sufficiently descriptive of the 8t. Vincent: It appears that, in the certificate of registry, she is des* cribed as a ** brig ;** aiid in communicating with the collector of the customs, 1 am in- formed that it is not an unusnal mode of describing vesiels of a similar rig. But the plaintifis have taken a wider gronnd of ac- tion, and contend that the St. Vincent, being regulai'Iy cleared at the custom-house, and in the act of proceeding to sea, no such instrument as the ^* let-'pass,** in which she is said to bci insufficiently described, waS' ne- cessary to her protection ; and eifen suppo- sing it were necessary^ that it was unlawful to fire at the vessel. The defendant has' laid before the C6urt certain instruments in the form of orders from the Govemom of Newfoundland, requiring all vessels, before they proceed from the port of St; John's, to be provided With ptoses from the Govern- or, upon pain of being fired at, and com- pelled to pay for the shot and powder; and these orders are said to < be given i for ■ the better enforcing of the l^wsiof the revenue. ^75 1821. TaiMiNSBAII 4eCo. V. 04S&IN* 270 \ 1821. ISIMINOHAM *Co. CASES IN THE SUPREME COURT, and in conformify to ancieni usage in Enc- lancl. The oldest of these orders appears 1°.. ^t^«^".?'"*f ^""^ *'•« ««' t'«^«. '« the year 1770: there has been some relaxation since m favour of coasting vessels, but as re- gards all vessels bound to foreign parts, the order of 1776, and other orders founded up- on H,haye been regularly enforced ; not. how- ever, without fhe question being sometimes raised as to their legality, as appears by the records of the Supremfc Court. In 1816, a vessel caHed the ** Betsy," bound fh)m this portfto Valencia, was fired at from Fort wiiiiam, and hit, and in consequence there- of, compelledto return into port and repair, ^oine of the caigo was injured by the water which penetrated the shot-hole, and an ac- tion was commenced against the General commanding the Garrison for the amount of iDjoiy, which was estimated at £600; but the yeeael and caiigo being insured in England. It was thought' advisable not to press the cdse to trial until it should be known whe- ther the parties had not a shorter remedy against the underwriters. The underwriters. It appears, adjusted the damage done to the jessel but made no allowance for the cargo. J^o ulterior steps were taken to bring Sie case to triil, and it consequently abated : *ut It appears that some application was made to the Lords of the Treasury foranin- unded up- ; not, how- sometfnies mrsby the in 1815, a d ih)m this from Fort ioce there- »nd repair. r the water and an ac- le General amount of )0; but the England, > press the own wbe« er remedy Jerwriters, one to the the cargo. ' bring the y abated ; ation was r for an in- ind ] was «e so far lis case to m Tesssls but more ies which cision of , may be- sd^ here- able con- After the most serious attention which I have been able to give the subject, my opinion is, that it is not lawful to tire upon n vessel under the circumstances in which the St. Vincent was placed in leaving this port. The orders profess to be made for the security of the revenue. It is, 1 appre- hend, open to much doubt, whether the re- venue really is protected by them ; and, even if it were, it does not appear to be a lawful mode of doing it. The revenue laws are like all other penal statutes ; the breach of them is punished by particular forfeitures, and they cannot be extended, by construc- tion, by the Courts that administer them ; nor can they be enforced in an unlawful manner. 1 am not aware of a single planta- tion-act which authorizes the party infrin- ging it to be fired upon ; and I know of no principle in the common law which sanctions such a mode of bringing offenders to just ice. Still .less should I find any proceeding by which the innocent may be punished for the guilty, and valuable lives and property placed at the discretion of a private soldier, and exposed to the uncertain consequences of a cannon-shot. 1 believe it is the prac- tice established by ancient usage iu certain ports in England, to compel the payment of port-dues by stopping vessels; and L know that in some of the Colonies the same mode has been adopted to enforce certain island duties. But, so far as it has fallen within my knowledge, it has been either sanctioned hy particular acts, or immemorial custom, which presumes an act. 1 know of no ge- neral law which would enable me to say that it is legal here; and I feel that 1 should be taking a very serious responsibility upon myself, if led into speculations upon the ex- pediency of a better mode of enforcing the 1621. TniMINOHAM &Co. *. Qaskin. i82i; Taiminoham ft Co. V. Oaskin. CASES IN THE SUPREME COUBT, revenne laws, I were to allow an opinion to ricle^r'l'"' '"•^l'' •-»" '« -"'"on a pract ce which may be Ibllowed by the roost fatal consequences. ' fired at °«nn' ""f ^^ ^*"^'» *''" ^«»««> ^a* nred at, appears to me to be founded in a misapprehension of the law. It is. "herefore no defence to the action ; for everrman' to vtm -^r ^'. '^Ir. Profeisionjs rJquTd coimt V u"^' obedience to the laws of his hp n Jl^* '* ." "^"^ '*^*''» t»"»' *'>e vessel's being stopped was attended with any incon- venience, and I Hhall, therefore, Hm"t?he judgment of the Court to the money whch 1 conceive to have been improperly leTied S^ember Olh, The •talul* 2. Geo. II., «. 30, dofli not require themaslerofeves- Mltotigo the ship's articles io any par- ticuhur piace or Manner ;«nd there* fore a ooDficlion, ■eltinc forth that the Magistrates had fined the roas- ter for not itiAscrt- Ung bla name to the ship's articles, M bad oa the face •lit P. W. Carter, Esq. q„i tam, against M. UPUAM. JUASE.~The defendant is master of the bng Commerce, and was sued in the Suorernp d«'e"/o r'/f h?' ''' of August forT4": aue to one of his crew who had been left be- wTs^tt'^thfr^r*•'"*r^*'• ThedeL'ce rad^esert^rf f^"" "U*^^ «ued for his wages staid fh„!.K ''' /^Pjy **» ^'•'^^^ it ^as ti ti 5 K*?^ "^*^' '^^^^ g»^«» him money to induce him to go on shore just as the IZni ^'' r l'*^ ^^« of sailiig fo? this bpin/n f 'l'^ '^'S^"* ""*^«'* pretence of dSant^wI^-.P'' chaise against the on thl «.T not, however, made out ; but, on the contrary, it was proved that the desire of the seaman, to buy a few nicessa! boanl nnrh"** ^ ''""* '"j""^^"^'* ^0 be on uuaru on the same evenin- 'J'he CW gave judgment only for wages >pinion to > sanction id by the vessel was ded in a therefore, ery man, I required iws of his e vessel's ny incon- h'mit the ey which f levied. inst M. r of (he Supreme r wages I left be- defence is wages it was \ money • as (he for this behind mce of nst the It; but, at the , at the ^cessa- be on wages NEWFOUNDLAND. earned up to the time of the 8eaman*s going on shore ; intiinntin<2r, at the same time, that his being left behind was an unfortunate circumstance, owing to his own inlemper^ ance, but not, in the opinion of the Com% amounting to desertion, or a forfeiture of his wages. In the course of tiie trial, the ship's articles were produced by order of the Court, and the quantum of wages computed agree- ably to the sum therein agreed upon. The articles were in the usual printed form, and the name of the master was inserted in the body of the instrument, in his own hand- writing. On the day following the above trial, the defendant was cited before the Court of Sessions, at the information of the Receiver of Greenwich Hospital, for not having signed the articles agreeably to the statute 2 Geo. J J., c. 30, and was convicted in the sura of £35, being five pounds for every seaman on board the vessel. On the 30th of August, it was moved in the Supreme Court to quash the above con- viction, upon the aflidavit of the defendanf setting forth, inter alia, that the informatio. upon which the proceedings were founded, was upon the oath of one of the convictin'»' magistrates ; and that the Court of Sessions', as such, was not competent to hear the case, the statute having given the jurisdiction to one or more Justices of the Peace. An office-copy of the conviction was, at the same time, laid before the Supreme Court ; by which it appeared that the proceedings were drawn up as having taken place in the Court of Sessions ; but this fact being de- nied, the Churt granted a writ <^( certiorari, for the purpose of bringing the conviction regularly before it. The certiorari being 270 1821. Cabteji «. UPHAM. » i h ' fl Vi <80 1821. CAtES IN THE SUPDEMfi COURT, the conviction was brought into Court, and Wtt« as fohowH :— ** Be it rt>merabereil, that on llic twenty- fourth clay of August, in the second year of llie reign of our sovereign Lord George the Foiirth, now King ot the United Kingdom pt Oreat Britain and Ireland, at St. John's Jii the said Island of Newfoundland, Peter fVesloH Carter, ofSt. Jolm's, aforesaid, £so receiver of Greenwich Hospital dues, for our ^sovereign Lord the King, in his proper per- ^iS^'f"™?,*'^'""'"® "**' '^^^"^ ^^ioomdinlJiunes JJlmkie, Esquires, two of His Majesty's jus- tices assigned to keep the peace, and also to hear and determine divers felonies, trespas- ses, and other misdemeanors in the said Is- land committed, and then and there gave us to understand, and be informed, that Mul- thcw Up/iam, master of the brig or vessel called the Commerce, of Dartmouth, did pro- ceed on a voyage from Liverpool, England on or about the twenty-sixth day of February last, bound from thence to parts bevpnd the seas, having on board the said brig or vessel IVilham Ludlow, Hepry While, milium •p«M^, William Meader, Andrew Lang, William Maddison, and James Connelly, as seamen and mariners composing the crew of the said vessel, without first coming to an agreement or contract with such seamen or mariners, in writing, declaring what wages each seaman or mariner was to have, res- pectively, during the whole voyage, or for so long a time as he or they did ship them- selves for, and he and Ihey first signing the same, against the form of the statute in such case made and provided. And upon the aforesaid day, he, the said Matthem Upham, appearing, and being present, and being called UDon to mnkn Ih'r Hpfpnoo owoin.* *u.. 1 I COURT, ) Court, and the twenty* [;oncl year of Gt?orjje the Up/tarn^ nd being rntnmt tl%i. KEWFOtJNDLANn. said charge, and having heard the same, and he being asked by uf<, the said justices, if he can say anything for himself, why he, the said Mattheto Upham, should not be con- victed of the premises above charged upon him, as aforesaid, pleaded not guilty 'of the same offence ; and being caJled upcu to pro- duce the ship's articles, refused so to do : whereupon evidence being called, William Ludlow, mate of the said brig, or -/essel, Commerce, upon his oath on the Holy Gos- pel then and there administered, deposed, that the crew of the said vessel at the time of sailing from England, as aforesaid, (ex- clusive of the said master and his son, a boy,) consisted of him the said William Ludlow, Henry White, William Lang, WiU Ham Meader, Andrew Lang, Wm. Maddison, and James Connelly ; and the said John Broom, Esq., one of us, the Justices afore- said, being called upon by the said Peter Weston Carter aforesaid, upon his oath upon the Holy Gospel to him then and there admmistered, deposed and said, that he, on the preceding day (the 23d of August inst.). did see the ship' rticles belonging to the said brig Commeru, and that the said ship's articles were not at that time signed by the said mast^, as required by the said statute. Upon which evidence, the said Matthew Upham was informed, that if he persisted in refusing to produce the ship*s articles, that a fine of five pounds for each of the seven, seainen, or mariners, aforesaid, would be levied against him for the use of Greenwich' Hospital. Upon this information being given him, he, the said Matthew Upham; produced the ship's articles, which were then found to have the said master's name ijubscnbed thereto: The aforesaid John Broom, Esq., further, on his oath, as afore- 2o 1821. Carter V. tJPHAM. m ' Ml If :>i 1/ CAIE8 IN THE SUPREME COURT, 31*^7 l"^«Tbed to the 8uia anicles. was not 80 subicribed on the preceding daJ when the aforesaid article, /ere produced i?n Jl^ ?r*'°*^ ^^"'* ;--whereupon all and S f .he matters, things, and evidence lieing fuUv heard and understood by the said Mailiew UpAam. he is asked by us? the said Justices, what he had to say or offeJ Iml nV ^^'''''' ;?^'°'* '^® «»'»* information «"vP„ of ?• '*'*'* '** ?""^®' ^« t*^® evidence jnven as above-mentioned, and what he had to say vhy he should not be convicted of lafd^'fe; *^TT^' ^'^^ thereupon the said Mafthew Vp/tat^, by his attorney. ^«.iry ffaw,on (t^e said 'Matlhetv ^S being also nresent and assenting thefeto). Bi?o'« '^°,?Y^'^^" '^"^ '^^"f^" *»^^t the said eTibitp? ^„ .1 T® "*''' yesterday, when exhibited in the Supreme Court, signed as they now are by the said ^atihew hpham, «nl^f "'iS^ *^** ^*r ^^ ^^^ subscribed his name to them : whereupon it manifestiv nSiTSM "''fr*?*' ««W^Ju3«cesrtharthe said Matihetv Upham is guilty of the Dremi! ses above laid to'^his cha?ge. yherofo?e we the said Justices, uoon the%ath of the cr^^i! We witnesses so taten. a» aforesaid, as we 1 as on ^ view of the befere-mentioned shTp's articles so produced to us. as.* also. Se confession of the said MaUhew Upham Z /?rt*.^^^ ^^'"^ff« th«t the^idfiC Upham did proceed in the saM brig or vessd ShS'A ^f ?n™«"tb/ oS or^bout the wid 26th c^ay of February last, from the port WoirfX^**'- '** ?"Sland. bqund to p^r J beyond th^ seas, having on board Wilham l^hw, ffenry White, ktUiam Lang, wZ Header, Andrew Lang, Wuiia^m MaddZm, and James Connellu, da tlie seaman o"""^' mers composing the crew of theswr»esTeJ, =*^-^--- —■*--.-..,.._. ;OURT, hew Up/ianis suiu articles, receding day re produced Lipon all and ind evideuco tood by the Bked by us, ) say or offer information )e evidence what he had zoavicted of ereupon the 9 attorney, hew llpham ng thereto), hat the said •day, when , signed as ew dpham, iscribed his manifestly ps, that the ' the premi- erofore we, fthe credi- ^id, as w^ll )ned ship's •also^ the Vpham, as d Ma^Hhew g qr vessel about the »m the port d to p^rts d Wtlliam aid ves^ei^ NEWFOUNDLAND. without first coming to an agreement, or contract, wiili mich Hcamcn or mariners for their wages, in writing, declaring what wa- ges each seaman or mariner was to have, respectively, during the whole vo) age, or for so long a time as he or they did ship themselves for, and he and they first sign- ing the same ; against the form of the statute in such case made and provided ; and, therefore, we, the said Justices, on the said twenty-fourth day of August, at St. John's, aforesaid, in the secotid year, aforesaid, do convict the said Matthew Upham of having proceeded to sett in the said brig, o^ vessel, Commerce, of Dartmouth, on, or about, the twenty-sixth day of February last, from the port of Liverpool, in England, bound to parts beyond the sea?, having on board William Ludlow, Henry White, fFilliam Latio; William Meader, Andreiv Lang, fFnu Maddison, and James Connelly, as seamen and mariners composing the crew of tho said vessel, without first coming to an agree- ment, or contract, in writing, with such 8ca> men or mariners for their wages, declaring what wages each seaman or mariner is to have, respectively, during the whole voyage, or for so lotig a timers he or they shftTl ship themselv^ for, and he and they first signing the same ; against the forih of the statrte in that case nkade And provided ; and the .aid Matthew Uphdm is hereby convicted hereof by us, the saiff Justices, on the oath of the credible witnesses so taken before us, as aforesaid, as welt as on the view' of th^ aforesaid ship's articles so produced to us. as also on the confession of the said Mattl^w Upham, as aforesaid, according iQ the torm of the stdtiltte ; and we, the t^ail^ JysticS do adjudge that the said \Matihew, VpMm, for hid said offence, aforesaid, shall Torfeit ids 1821. Caktbr r. VPUAM.' i 1 ^fefore the Conrt is this: the de- iWs I„Tn' *="7';sted by two of His Ma- iflhirtv fi '"' ""^ "'/^' '^"^ ^"^^> t»'^ -^"ra oi thirty-five pounds, for not complying with the requisites ofthe statute 2d Geo II c 30 sec. 1. which enacts, that in case ^nymlt ter of any vessel shall carry any seam^eh up- on any voyage, without first entering into^a the contSrr'' ^'u^'^""^ »'^^ "«<"••« «f t le contract between the parties, and he and they signing the same, such masiershall fo I tLT'7''^ ^^ ^""^ ^^^'•y ""^^'^ seaman. i? mls^f T^rr ^'^^^^^'^ defendant, who ,Lw I ^*.*?^ ''"^ Comwicrce. had not Signed he articles ; and the point for the Justice's determination was. whether he had 11^:^^^'^^^^ them before th/voya^ S?L ? ?^ '""^"^^^^ "^^'^ ^^« called tosuS. port th^ mformation. deposed, that he had tliey were not. at that time, signed by th6 master, as required hy the statute, It Z ob- i«'w* fr- S"""^ "Poo j"tt» to swear to the Jaw. It w true that evidence as to law catt- OURT, ected immr- V id ion, and rty upon the I attempt to it would be against jus- y, aggrieved ain redress? % into the magisi rates, tnd it does nee in this lid gain ho- lt summary £ion against lis: the de- of His Ma- cd the sum tilying with ». II.,c.30, any mas- earneh up- ing into a nature of md he and r shall for- 1 seaman, dant, who had not It for the er he had, 6 voyag6 £d to sup. t he had and tfidt id by th6 ft is 6h- fond the r to the law can- KEWFOUNDLAND. not properly be received ^ and that a con- viction founded on such evidence alone, must fail; but if a witness swears to facts sufficient to warrant a conviction, I i\q not think his giving his opinion upon the law, would invalidate the other parts of his testi- mony. If the case had rested her^, I shou|(| not have thought the objection material ; but the words used by the witness are import- ant, and relate to a circumstance under which the conviction was res^Uy founded. — !^y not signing ♦* as required by the statute,'' the witness intended that the articles were not subscribed ; for when the articles them- selves were afterwards produced before the Justices, the conviction goes on to state, that they were then found to have the ipnas- ter's name ** subscribed thereto ;" and the witness being called again, desposed, that the defendant's name, " now subscribed to the said articles, was not so subscribed the preceding day, when the aforesaid articles were produced in the iJupreipe Cour(; ;" and, thereupon, the defendant was convicted. The master, in his affidavit in support of the present motion, swears |hat he filled up the agreement, and that liis name, which is in- serted in the body of it, was signed by him- self, and is in his own haud^writing, it is not denied, or rather it is admitted, and is within the knowledge of the Cpurt, that this was the fact, and that the defend an tV name was written at the beginning of the articles in the way which is usual, before th,ey wer^ produced in the Supreme l^oi^rt, and as 1 ^ni bound to presume, for there is nothing charged to the contrary, jbtefore the vessel proceeded on her voyage, it appears, then, that the Justices did u,ot confjne thf^n^selvei^ to the questiop, whether t^^ mas^r had signed the ai:tic?i:?5 ovnot, but they convicted 2fi7 1821. Carter V. UPIIAM^ « ^ '[■ I 288 1821. Cartbb Vpham. CASES IN THE SUPREME COURT, Iiim for not signing them in a particufar place ; ttiis was going a step beyond tiie statute, and making that an offence which is not an offence against the law. The sta- tute only requires that the agreement shall be signed by the master before he proceeds to sea. The statute of frauds in the same manner requires, that certain agreements should be in writing, and signed by the par- ties to be chained therewith. The place of signature, under this statute, which regulates r.Ii the grea<; contracts in the kingdom, has never been considered essential to the vali- dity of any instrument required to be signed ; on the contrary, if a party's name be inserted in the body of the writing, with a view of giving it authenticity, it has been expressly held by the Courts to be a sufficient signing within the statute ; and it has been so held even in ca«es where a blank has been pur- posely left at the bottom of the instrument for signature, and the party has omitted to fill it up. [See the cases collected in Ro- herts, on/rauds, 122.] The same doctrine had before been re- cognized in respect to the signature of wills, and is, I believe, a rule o^ the civil law. The analogies of law bear me out in holding, that if the master of a vessel sign the agree- ment with his men, before he proceeds on the voyage, the place of signature is not material. The printed form has no blank for the master's subscription ; the place and time of entry, rate of wages, &c., are only applicable to the seamen. The master's contrar*^ is with the owners, personally, not on the credit of the ship, and is never set out in the ship's articles. There is nothing in the nature of the thing which makes the place of the master's signature material ; if he signs, that is sufficient to bind him to the ^ OURT, 1 porticufar beyond the fence which . The sta- ement shall le proceeds in the same Agreements by the par- lie place of :h regulates ngdom, has Lo the vali- > be signed ; be inserted a view of I expressly lent signing een so held 3 been pur- instrunient omitted to :ted in JR^- re been re- re of wills, illaw. The in holding, the agree- roceeds on tiire is not s no blank ! place and ;., are only e master's mally, not never set is nothing makes the aterial ; if him to the i MEWFOVIIDLAND>. agreement, and to satisfy the statute. 1 am of opinion that there was no corpusr delicti in this case, upon which the Justices could found any conviction : by their own show- ing, they have fined the defendant for that which is not an offence against the law. Their proceedings are, tlierefore, annlHty, and roust be set aside. There have been many other objections raised against the conviction, but it is unne- cessary to go into them. Before 1 close the observations of the Court, however, there is one which it may be essential to add, and which I desire may be clearly understood. It is this : that whenever a conviction has been mbstantially right, this Court will not disturb it upon the ground of mere irregula- rity of form. In England it is observable, that the strictness with which convictions by magistrates were formerly regarded, has been a good deal relaxed in latter years ; and th« statutes passed for protecting ma- gistrates in the execution of their office, are framed in the same spirit of liberality, i do not think 1 shall go beyond that sound discretion which is reposed in the Court, under the act which directs it to apply the laws of £ngland> so far as. they may be applicable, to this island, in holding that the same d^ree of technical strictness which is observed at Westminster in examining the formal parts of a conviction, is not applica- ble to Newfoundland ; and that every con- viction in which justice has been, in fact» done, ought to be supported by the Court, 28d 1821. Cartbb o. Ufham. 2p r 290 l\ ) The (Cufltom fouod by ibe 8p«" oial Jury in (he case of MeehoH ▼. Brine, [ante p. Gj must be takeu aub- ordinale to Ibe sta- tute of limitations : and a Doo-claim for six years is, consequently, a good pl«a in case of an action upon a bill of exchange. I CASES IN THE SUPBEME COURT, Haycs against John N»ave and William Neave. i^iCTION to recover thesnii) of £C1 5^. lOd, for principal and other charges upon a pro- seated UiU of exchange. In November, 1U06, a bill of. exchange vr«9 draiKnby the defendants in favour of £:/lmond Walsh, for ;£S3 15g. on Dartmouth^ which bill, however, was never sentifor ward, or put into circulation, hut retained by WtUah . .until > Ust year, rwhen he endorsed it to (plaintiff for a full consideration. , : The bill i hawing been transmitted kstfall to Dartftiouth, was returned under protest, and this action was brought to recover the SHUDunt, under the alleged special custom of this island,, that time does not run against a biU of ) exchange. The defendant relied vpon the statute of limitations, and complain- ed iof the hardship of being called upon to pay abill which bad been drawn more ihan fourteen years ago, andwas fraudulently en- dorsed to < the plaintiff last year^ when JVahhf the payee, had become.indebted to the defendants, upon subsequent dealings, in a niich larger amount than ;the bill now sued for. Per Curiam^ Without going into the pri-r vate circumstances of the caSe, Which may press with greater; lOr less bardiriiip on one sideor the other, it appears to me tliat the action is barred by the statute of limitations. Which ba^ always been acted upon in this Court. 1 am aware that the special custom found by the Jury in the case Meehan v. JSrine, taken in all the latitude to which the language of the verdict nuy be strained, is capable of being opposed to the statute ; but when a conflict of this kind takes place, COURT, nd William >r£Gl 5s. Wd. i.upoa a pro- of. exchan;^e in favour of n DM-tmouthy seotforward, relaiaed by 3 endorsed U ration. , The k^t fall to ' protest, and recover the ial eustom of run against a ndant relied nd complain- died npoa to m more than idnlently en- year, vhen ^.indebtedto ent .palings, ;the hill now into tlie pri-r ; Ivhioh e idle to follovl the drawier or prior endorser td £nglandioy/6 was a planter, and took supplies from divers merchants, to whom he put off bis fish in unequal proportions. At the; okisc of the fishery, the servants went into the Sessions GonrI, and recovered jiidgments for wages against />o^/e; but be- fore exe tbe servants, the proceeds of «ue-2aav7xvsaiss csicns suuuia Qoi pe nrsc a|q^lied ia payment of sevvants' wages, an<* 4 :ouftT, NEWFOUNDLAND. 293 r the casp» in icy, 1 feel it itom to pass ind 1, there- Din found by list be taken itations, and 3 a complete ixchaDgc ia ! the Recciv- r, and took ), to \vhoni proportions, lie servants d recovered ^le; but be- aken in the be creditors solvent, and iistees. Tho ent to pay eir remedy, ring the fish B;es from the iiis day, the ;rally snm- the whole <•( made the Uohan't in-^ iw raised, ncy of the iroceeds of ot be first ¥ages, un^ V. The Receivers ot the Voyage. der 49th Geo. III. before the servants could 1821 . resort to the receivers of the voyage ? ^ _■ . ■ - But the Court held that such statute gave Duyle's Servants a cumulative remedy to the servants, and did not take away the right which they had before of looking to the immediate produc- tions of their labour, tiie fish and oil, for the payment of their wages. While the afiairs of an insolvent are winding up, the servants will starve. If they could follow the fish and oil when the planter who shipped them was solvent, aforlioriy tliey can do so when he becomes incapable of paying them. The servants are entitled, if they think fit, to follow the fish and oil, under the Idth Geo. JII. ; and as they have done so in this case, the receivers must account with them, which must be done in the following man- ner:— First. — Let balances be struck between Doyle and his servants, upon accounts be- tu-een them, and such balances carried into one aggregate account of sums due servants, (omitting any payments voluntarily made by receivers, who will have a right to set off the same against refunding.) Second. — Let the fish and oil received by all the suppliers be computed, and an ag- gregate account of such fish and oil set out. Third. — As the whole voyage is to the deficiency, so will each receiver's proportion be to the amount he must refund, (giving him credit for any wages actually paid as receiver.) In respect to the insolvent estate, it is certainly first liable to servants* wages ; and 1 am aware that in relieving it from this first demand, some difference is necessarily made in the respective intere8t9 of parties claiming upon such estate, it '^ims but just, there- fore, that the parties .efundiog sho^ikd be R 294 1821. CAME8 IW THB STPRENE OOUBT, nllowed to rlatm the i^muiints resprctivply rcfuiulcil OS wages, before any diiim for current supiilies. \ ■V November IP/A, The Chief Jut- lice refuses lo alior the ordpr made by him, relative lo the claims of these ser* vaals, on ihe 14th of the preaeut moDlb. L. Doyle's Servants. "N this day, application was made to alter tlie mode of paying servants' wag^ee., as ordered on the 1 4th November hsl; when the Chief Justice »A\f{ : — I do not, upon reflection, think that I can alter the rale laid down in this case. Jt is easy to frame cases of hardship on one side and the other; but 1 must be governed by iegal principles ; and I do not conceive J have any right to interfere in rights accruing before insolvency between different current suppliers, who have received unequal pro- portions of the voyage. There is no reason why one supplier, who is active, may not take care to pay himself, and cover any probable claim for servants' wages by an over-receipt of fish and oil; and if he takes the precaution to do this, which it is per- fectly lawful for him to do, why should the Court frustrate his Vigilance by appropria- ting his over-receipt offish and oil, first, to the payment of wages, and then call upon him to refund in proportion to the fish re- ceived ? A case of great injustice may be supposed by so doing ; for example, A supplies to the amount of £200, and receives £300 in fish and otl ; B supplies £50; and receives exactly that amount in fisb^and bi!, —wages amounting i6 £200 r A'k surplus is first appropriated to pay this, which' brings the deficiency to £100, of which stim A, -Who endeavoured to secure himself by precantimr, 18 caHed itpon to cotttributte d-7tb9; and 0> ikh ►UBT, MEWFOUNDLANO. Si)a resprctivfly i diiim for who neglected to Rccure iiimself aKninst wages, is only called upon for 1-7lli, beiii^ tlicir relative proportions of lish received. The Court rule appears the best. 1821. 18 made to mts* waj^es, •Itisl; when k that I can asc. Jt is on one side overned by conceive J its accruing ent current lequal pro- ! no reason J, may not cover any i.a:es by an if he takes it is per- should the appropria- 11, first, to I call upon the fish re- ice may be ample, A id receives I £50; and sb^and bi!, surpluiis lich'DTings linJA, "Who recantioo. The CiiURCH-wARDiiNs against John Rendell. .Action to recover one pound> as an as- sessmentyor^cw rent for the last year. , Defence* That tlie pew was not taken l>y di^endant individually^ but Jointly with fVarrcn and lioden^ and that each party paid one-third ; and th»t 4ho church-war- dens have neglected to repair the glass in the window opening from the pew occupied jointly with defendant, although they have been called on and required to do so. The proceedings of the vestry were laid in evidence, from which it appeared tliat certain expenses were incurred in the re- pairs of the cbnrch ; .that there was a meet- ing of the pew-holders convened ui the ve8<- try, where the necessary repairs, were sub- mitted, and estimates produced, and aj)- prpved by the meeting then present; auil that it is to cover such expends Uiat.tbe assessments are demanded. The Court considered that the contribu- tions to, the church were conventional^ they could not be demanded as rates, properly so speaking, but as the proportions of a general expense incurred for the purposes of the in- stitution, for which every holder of a pew, or interest, in the church, had impliedly made himself liable. When the church was built, it was, of course, intended by ihosc who built and held an interest in it, that it should be attended, and kept in necessary yovemher 19/A. Th« cliiireh-war^ deiiH may reouver from th<> owners uf ppwsH fairpropof lion of tlio eypeiiM inciirrpil in (lie iii>- coBsary and indis" ponsnMo repairs of Ibo cburcli. 290 1821. TlltCHURCII' WARDBNa 0. Rbnobll, CA8E8 IN THE SUPREME foURT, n^ceVraod the S^ at a geaerui reimbursement nn^^* ^"^"^ "* *^^^"'^ "«»»t to peur-hoWeT wl' nrnn ^^ "^^r^*" from%acli 08 for money 'i^i^Z''^'' ^^ **"/!; ^?P*»««» expenses must h« ii^?^''''*^' »»"* the r •, ur luey crynnot be recovered. DeeenOer llik. Bail money is ■«y«ol, fine, to Ibo payment of ^•g««. and afior. wards to aHppliei. Sabiuil Codner a^a,„,/ Baine, Johnston & Co. circumstances •— *"® allowing P^rflaS^'l'J-ffi ,- eye. or againrt him for (he amount a^d i"''?"'™' -raSl^i-'CenrrS'^^^^^^^^^^^^^^ "Pon deVndrC^n "'r J?' T'^ certain sums due bi-tK. ,i' , " '^F**' ♦ained by them on L.i "e"'*"*. and re- Cio/*. '*"• *"' •'»" supplied by hateaett^:t'r'Al! '"'^ contended tbev retain^ ^^i ^^ ^^^^^' and Meera?!'!?^?,-!.--^^^^^^ »ppcar«i that .lieyhadfu™Sd"4:j"j;,l| •IE COURT, oiind themsclvcx •cli repairs an. 'I when there- on at a geaerai InciirrrJ hy the a clear right to 3ver from each ^ such expense, ended; but the Y ttecessary and be recovered. f Baine, "ount of cer- the following Be C/iafe, of *d judgment id took out «ng sufficient was served IS is .M^ged, lers, and re- of account supplied by 9, that they forth, and )ney to sa- >m for cur- '• WM stated iy which it Chq/b with K&wrUtNDI'AND. articles during tlio winter, hit in tlie l>egin- ning of the fisiiing-seuHon they hud discon- tinued their supplies, and, by way of securing the debt then due, took nn assignment of }m boat, which they afterwards let to him again on hire for the ensuing season. It was further stated l)y the defendants, that they had supplied Chafe with the un- derstanding, that the bait-money due by their dealers was to be retained by them in sa- tisfaction of their debt, and without such un- derstanding they would not have advanced supplies, or let their boat on hire. The Court determined, that the articles furnished by defendants before the fishing season commenced, could not be considered as supplies for the fishery. Where winter supplies were issued, and continued during the fishing season, the Court would not se- parate the account, but consider all as supplies ; hiLcaliter where the supplies were discontinued before the fishery began. In regard to the claim for boat-hire, it was, cer- tainly, to be regarded as a supply in itself, but it was o( a. peculiar character^ and would not otherwise take the case out of the gene- pal principle so often laid down. The de- fendants were, certainly, entitled to retain what proceeds of the fishing voyage might come into their hands, to the amount of the hire of the boat. It was objected, that the defendants had not notified plaintiff of their claim upon the boat, agreeably to the rule laid down in JBaine^ Johnston Sf Co. v. Al~ sop, 14th November, 1821 ; but this case differs from that, inasmuch as there, the party sought to recover boat -hire from the' receiver of the voyage; here, the party only sought to retain to the amount of the boat-hire, and his right to do so fell within the principle frequently laid down by the Court, that it 2q ff»7 1821. CODNBR V. Bainb. JomN' broN ft Co. 298 1821. CODNBR V. Baine, JohN' T> N & Co, CASES IN THE SUPREME COURT, ri!i ""' u^J'i!""** different current suppliers T;!^ "i'?u * ^''''^ received different propor- tions of the voyage ; it would only call upon them to contribute to the payment of wages, m proportion to the value they might have received. All fish and oil were made, in the first place, liable for wages ; and where they could not be followed in specie, they must be traced through their representative. Bait-money was of this description : it was subject first to wages, and next to current supplies ; and as the plaintiff in this action had paid all the wages, he was entitled to call upon the defendants, to contribute a ratable proportion of the bait-money he had received, towards the payment of wages earned in the bait-boats. ° f i' ! f December 15th. Although a com* mission of bank- ruptcy in Eoglaod, ivilt not necessarily supersede a decia« ration of insolvency in this country, yet, if under the particular circuni> •lances of a case, it shall appear that the olainis of the creditors, general- ly, may be most satisfactorily ar- ranged and ad- justed in England, the Supreme Court ivill consider that a good ground for superseding (he ia> fioivvucy. Assignees of Stabb, Preston & Proivse agmnse Trustees of Sta bb, Preston Prowse & Co. * e.,,.^^^. ^?^ ^" application to the Court to supersede the insolvency which had been aecjared in this case, and to cause the pro- ceeds of the insolvent estate to be handed over by the trustees under the Newfoundland insolvency, to the assignees under the Eng- lish comission. ° Per Curiam. This case is peculiarly cir- cumstanced, and, in some respects, has imparted its character to the proceedings of the Court. It may be necessary, therefore, to explain the reasons which have guided the Court in the course it has adopted. On the 28th of June, process of attach- ?rA 'd^ awarded against the effects of Atabb, Preston, Prowse 6r Co.. an evtPn^.'ve traumg firm ia the island, with the view," as E COURT, iirrent suppliers ifferent propor- onlycall upon ment of wages, hey might have were made, in if ; and where in specie, they representative, ription ; it wa^ ext to current rin this action van entitled to o contribute a money he had ent of wages N & Prowse Preston, ) the Court to ch had been :ause the pro- to be handed Newfoundland ider the Eng- eculiarly cir- espects, has roceedings of y, therefore, have guided idopted. s of attach- le effects of in extensive the view, as NEWFOUNDLAND, it \ronld seem, of leading to a declaration of their insolvency, and preventing an undue preference amongst the creditors. At the return of the w rit, the agent who had been left in the management of Slabb, Preston, ProwseSc ^o"s. concerns, attended Court, and admitted, that the available property of the house was not sufficient to' satisfy the demands against it; and prayed, that as none of the partners were in Newfoundland when the attachment was sued out, farther time might be allowed them to appear. The principal creditors, who were also in attend- ance, pressed an immediate declaration of insol vency . The Court granted three months further time, and enlarged the writ of attach- ment, intimating that it would authorize such persons as might be nominated at a meeting of creditors, and approved by the Court, to carry the attachment into effect, in such manner as might appear most conducive to the interests of all parties concerned. The writ of attachment is a peculiar process unknown to the common law ; it is likq the proceeding in rem of the civil law ; and places the goods attached, in the custody, and under the control, of the Court. It is usually executed by the Sheriff; but as it was pretty evident from the beginning that the case would terminate in insolvency, it was deemed more expedient to conform the proceedings of the Court, in the first in- stance, to the course which it was probable they would ultimately take ; and, there was the less difficulty in adopting this course, as the Judge is expressly enabled by the sta^ tute, to perform every ministerial act Of th0 Court by the hands of such persons as he may deem proper to appoint. Trusteeis were „^v,v*xM*i^:jr 9|7|fvit»i>cu, iv uiiaca ana DQid 299 1821. ■Assigneps of Stabb, Pres- ton, and PROWSB V. Trustees of Stabb, Pres> TON, Provtsb &Co. 300 I w lil'' 1821. Assignee* of Stabb, Pres- ton, aud PjRowsa c. Trustees of Stabb. Pkbs. TON, Prowse. & Co. CASES IN This supreme Court, the effects of Atabb, Preston, Prowse A- Cd subject to the direction of the Court. ^ At the expiration of the time which had tn Court, and it being made to appear that ail the partners had been duly apprized of v.?i^7T' ^^^T^ *^^"^' ^'»« CowrJ^ concei- ted that everything had been done which could reasonably be expected to be done to satisfy the intention of the statute, and de- clared Stabb, Preston, Prowse ^ Co, insoU vent. J do not scruple to say that the Court Bad anxiously looked for the appearat;. e of in n^Jffh '.""'*"' ^^^ English commission, Jn order that any question of a conflicting nature might be raised before the case had pone the length of an actual declaration of insolvency ; but m that expectation it was disappointed, although the bankruptcy had ^onJl ^uT '° England more tha/ two months before Not feeling satisfied that the Court could suspend its proceedings any IK""' J' *»ecame necessary either to give the particular creditor the benefit of his judgment, or to declare the defendants in- iTc 71;-/^/^'"^'^' ^" P^^*>^« ^-'e put O.L ^^^'^^'l *^ «"e"d Court on the 8th of October, and the agent for the defendant, bemg examined, and stating, as before that o'nf '!k ^^ Ws Principals^^ere iSc Ln to pay their debts, the Court proceeded formally, to declare them insolveSt ^ ' A question has been raised, which mav properly be referred to this stagi of the case ivhether the defendants could lega ly be de! claredmsolvent in this island, none of them being present, or personally within the ju- Wdiction of the Court at the time? and it whink? ?^"^P«^d.*o an act of bankruptcy MThich, bemg penal m its conscquencfii, LZ uoi be committed by inference, urfofli^ IHi E Court, », Prowse ^ Co. e Court. time which had i»8 again moved B to appear that uly apprized of e Court concei-^ sen done which d to be done to tatute, and de- vse Sf Co. insol- y that the Court appearajwe of sh commission, of a conflicting e the case had declaration of fetation it was ankruptcy had ore than two satisfied that oceedings any either to give aenefit of his [Jefendants in- ties were pub- : on the 8th of he defendants IS before, that re insufficient rt proceeded, vent. i, which may ?e of the case, egally bede- tioneofthem ithin the ju- time ? and it bankruptcy uences- can- :e, urjfollow KEWFOUNDLAlJO. upon the act of an agent ; but the cases rnkrlr^"^'- ^". Wand, the tcL of W n?^iK^ r '^''^''" ^^^"^'^ «^ts, the do- ing of which IS necessary to brin- a partv Newfound and, the mere inability to pay twenty sh.lhngs in the pound, makes \hl fife L/r L''"l' ' '^' ^^'' '^f insolvencv i^ nntf ^1 bankruptcy. The law has 'ap^ pointed the Courts to inquire into this fact attllr •' ',?^^^'^^« '^- The process o facHsTn I '' *^^ '"""r ^'^'•«"g'» ^^hich the Jact IS to be ascertained bv the Courts The hnt f,"f ''^'^^f ^PS m the course of inquiry : bu the awarding of attachment is the first judical step to which all the subsequent proceedings are referred. Now, the "vH may go against the goods of an absentee' ^deed ,t seems intended to apply to cases where the party cannot be personally served J^Kh process. Jf the goods attached are insufficient to pay all the debts, the partv fo'unT?n Tf'""'' ^"PP«^^ he'cannS? b^ to stand ""f,^'-^« ^^^'"•"ation. is the Court 10 stand still, and see the estate wasted however satisfiecl it may be of his inloTvel: cy ? If he attends and denies his insolven cy, It cannot prevail against the fact : shaM h s absconding suspend the law ? The firs objec of every system of insolvent aw is to provide for the interests of creditors It is the express object of our law which di Clares the prosperity of the trade andlshe* ries of Newfoundland to depend i„ t K=;^s;r'^:2:;rfe^^ d^tei^ '"^'■'^"^ Of thisTo'um f i^r;: ducted by agents, whose princioals L I_ ^Zl. ♦H''/'' "»»•»*«'«» as a general propo': Wtion, that persons engaged in trade fn th?s 301 1821. Assign res of Stabb, Pres^ TON, aad Prowss V. Trustees of Stabb, Pres- ton, Pkowsb 302 V w 182t. ^■■icn«M of Stab^, Prbi> TON aod Prowsb V. Tru»ieM of 5tabb, Pkr»< TON. PROWag A Cow CASES IN THE SUPREME COURT, Miami, and becoming insolvent, cannot be declared so merely because their bodies may not be within ihe corporal touch of the Court, would be to place one-half of the property in this island out of the laws of the island. It appears to me, that wherever the goods are within the jurisdiction of the Court, they are liable to be attached ; and, wherever the goods so attached, are found to be insufficient to pay the demands of the creditors, it is competent to the Court, upon being satisfied of the party's insolvency, lo declare the fact, and take order fordistribu- tmg the insolvent s effecls according to law. Entertaining this view of the law, I am of opinion, that the declaration of insolvency in this case was lawful. But it is contended that the bankruptcy oiStabby Preston 4 Prowse, in England, vested all their estate and eflects in this is- land, in the assignees under the English commission, and virtually superseded any proceedings under the insolvency in this island. This is a very large question, but it IS not a new one in this Court. 1 have al- ready had occasion to express it as my opi- nion, that where a person engaged in the trade of Newfoundland, becomes bankrupt m England, the creditors, in respect of New- foundland transactions, might come into this Court, and cause such person to be declared insolvent, with the view of having such of his effects as might be situated in this island, distributed according to the law of the is- land (a). I do not presume to question the decisions which have been made at West- minster, {b) although I humbly conceive that (fl) Crawfordf tf Co't. ioulTeooy, 31it aaoumy, igi8. . ^Z-slT^I'J^' ??••• J«l»'«'y. I'W. Chan. Jolkt - ^»st.t€:u., auu StpdnihieM r. Seaian, 83d No». IWfe COURT, nt. cannot be their bodies il touch of the ne-half of the f the laws of that wherever diction of the ached ; and, d, are found manda of the e Court, upon tisoivency, lo r fordistribu^ •I ding to law. law, I am of of insolvency bankruptcy in England, ts in this is- the English erseded any !ncy in, this estion« but it I have aU t as my opi- gaged in the es bankrupt )ectofNew- ome into this I be declared g such of his this island, w of the isr [uestion the e at Westr onceive that « Faouaiy, 1Q18. 4. Cbah. Jdlkt 4 Nov. vtm U. Wmwick, KEWFOUNDLAND, some of the arguments of t.ic judges in the cases alluded to, have gone too far— much further than can be supported upon sound universal principle, and, indeed, than the ca- ses themselves will support (e). When it is held that a British subject, living within the jurisdiction of British laws, shall not be al* 1 wed to do any act which may tend to de- feat these laws, 1 can fully understand and follow the doctrine ; but where it is said that he cannot do so, because the personal pro- perty of the bankrupt is everywhere subject to the law which governs his person, I must confess that my industry hos hitherto been as unsuccessful in endeavouring to find such a principle of universal law, as my un- derstanding has been to be convinced by the arguments upon which it rests ; the proviso ^yith which it is qualified, viz.. that it is ope- rative only so far as it may not militate iagainst the particular laws of the country in which the property may be placed (j? Havethev ih.> interest assumed by Ihe appraisers .nSnff their assessment ? Jf they have any imeresf capable of being appraised and ass/ssed! the quamum aftxed by the appraisers is no ex! aminable m this or any Court ; it is final and compulsory upon the partie;. Defendant plated by the Act are landlords; that the Act must be presumed to have reference to rights existing: at the time at which it be'i^s to operate, VIZ., from the first laying out of tbe streets in June, 1818 ; but the Ac?sDe oficaly makes houses and tenen e„tt HabPe ^d although the words - with reference to' ^e value of the several interesU of proprie^ Sr JJSE.'^ "^^'l"^ interests, accSg"^ SLT^ '^'^'**'^*^ of t^e ground, yet ^«y »J«P aPP'y to the respectivf interests of /WW, and tenants ; in this sense the ap^ praisers have taken it, andtheC^owr^inclinL • to follow them. 1 must lay out cf the cas^ all considerations derived frJm the addftional «ntecharged by landlords, upon the st S taTT'f ^^""^'^^^^ in^rebuilding fhe JJTI^ jT""''^."*'''^^^«^"« of proper! SLilfL d**y^ ""'.^ ^^ clecline'^ofthe tr»dlo-4he delay m the passing and trans- ?»tt«ng of ike Act of Arii^rmpT.* to !h^ »iand. The Act was framed upii troudl If .' i' '%. ! COURT, — Act enacts I taken for wi- appruised by [•pointed, and e paid by all nents, lots and n the linnits of 8, with refer- veral interests shall appoint. f can entertain Have they the era in making e any interest assessed, the ers is not ex- it is tinal and Defendant tors conlern- ds ; that the f reference to lich it begins laying out of the Act spe- nents liable ; reference to «of proprie^ according to ground^ yet i interests of 5nse the ap* our4 inclines cf the case e additional the strength uilding the B of proper- :line of the ' and trans- ant' #n *Uia wn broad^ NEWFOUNDLAND. general principles, with reference to the whole society. The fires of 1817 and the following years, had destroyed, not the ground, but the buildings, and a large pro- portion of the merchandise, in St. John's : it was to guard against similar destruction that the law was passed. Every man who had property to lose by a fire, was deemed inte- rested in preserving it from fire ; and as the means of preservation, certain spaces of ground were left to be paid for by all who had some interest in the town, some houses to be guarded from tire, or some ground to be rendered less valuable by its devastations. It might be argued that ground could not be burnt, and, therefore, should not be as- sessed ; but as the interests of the commu- nity, generally, must suffer by a general ca- lamity, although some particular species of property might not be affected immediately, so all property whatever, permanently held, was deemed to fall within the danger of loss, and the necessity and benefit of security. The question which first suggests itself, is— has a man any interest in a house that may be burnt? will he suffer by a fire? If he will, the questions as naturally follow, to what extent will he suflTer? what is the value of his interest? and to what amount should he pay for security? Jfthe landlord, in the contemplation of the act, and the ad- ditional security derived to future buildings on his ground, exacted a higher rent, he is, or ought to be, assessed in proportion to* such rent ; and, therefore, his assessment must tend to lighten the assessment on the tenant. I cannot suppose that the value of the ground and house together, may only be worth the ground renfc; it may be so, and, 1 dare say, is, in many cases. But 1 cannot HBlieve parties from the consequences of iia- 309 1822. Th« Apprai3br> V. Morris. II 9t } 310 CASES IM THE SUPREME COURT, 1822. provident bargains, or any iinexpccttd de- TbTAPp'RA^R* kTiV^ ^^^- "^"'"^^ of houses and stores in lb. APPRAisBRs .St John's, arising from the revolutions of MoKRis. f"**"*^ «n.r^^ ^^..i.f whether the 48Ui Geo. 111. had not repealed. OUBT, NEWFOUNDLAND. 311 expccttd ersons who out such li. irtue of the 3 drawn in d out. Se- to the con- the statute en repealed ! ; and that t be of this 'excise and m forced in ot repealed. the 35th Geo. III., by implication, as it ap- peared, on a first view, to introduce more extensive provisions upon the same matter (a); and this doubt was strengthened by finding that it had been raised in a book of some merit upon the duties of a justice of peace (b). But upon more attentive exami- nation of the several laws relating to licen- sing the retail of liquors, it will be found, that they are divided into two distinct classes, ■with two distinct objects, viz., the justice's license, and the excise license — the one re- lating to the police, and the other to the revenue. By tracing the laws themselves from their source, the distinction will be- come more evident. I shall endeavour to do so, premising, that I have no index or means of referring to the statutes, except the abridged and very imperfect tables pre- fixed to each volume. Op the Justice's License. — So early as the reign of Edward Vi., statute 5lli and 6th, c. 25, it was enacted that none, except such as were allowed by two justices, Bhould keep a common ale-house, or tippling- house, or use commonly the selling of ale, or beer, under the penalty of twenty shil- lings. The next statute was the 3d Charles I., cap. 3, which extended the like prohibi- tion to the retailing of cider or perry with- out license, and was followed by the r2th and 13th William III., cap. 15, which fur- ther extended the prohibition to the retail- ing of brandy and other distilled liquors without a licentie, in the same manner as was required to sell ale or beer, and under similar penalties. This statute was subse- quently repealed, but the provision requiring ' ajustice^license to retail spirituous liquors, (a) East Rep. 44. (b) Dickinson's J. P. Art. AFe-house, note h. 1822. VoNOB V. Blaikii. 812 CASES IN THE SUPREME COURT, i fl m 1822. YONOB V. Blaikis. was revived by the 2d Geo. II., c. 28, 8. 10, which enacts, that no peisons shall seii *' brandy or other distilled liquors by retail, to be drank in their houses," but such as shall be thereunto licensed, in the same manner as the ale-house keepers. The next statute which it may he neces- sary to notice, is the 26th Geo. II., c. 28, which requires the magistrates, upon grant- ing a license to any person to keep an ale- house, to take recognizance for the mainte- nance of good order therein. This statute also contains other provisions, as to the time and manner of granting licenses. In consequence of the confusion intro- duced by different laws and different pu- nishments, in relation to the licensing of ale- houses by the justices, it was found neces- sary to pass the 5th Geo. III., c. 46, which enacted, that in lieu ofthe penalties inflicted by former Acts of Parliament on retailers of ale, beer, and other exciseable articles, with- out license, the offender should forfeit forty shillings. This penalty is increased by the 3<)th Geo. in. to twenty pounds, and a dis-r cretion is placed in the power of the con- Ticting magistrate to reduce the fine to any sum not less than ten pounds. All these Acts of Parliament relate solely to the jus- tice's license, or as it is called in the statute under which the conviction i^ made, a li- cense to retail ale, beer, and other excisa- ble liquors. The word ** excisable " is used merely as a term of description ; it was HO used, for the first time, I believe, in the statute 9th Anne, cap. 23, which required the justice's license to be made upon a stamp. It should be observed that the justice's li- cense was, at thai time, the only license required for selling aio, beer, auil othcf li- quors, subject to an excise duty. The term J { COURT, , c. 28, s. 10, US shall seii ors by retail, but such as in the same PS. ay be neces- II., c. 28, upon grant- keep an ale- ' the mainte- This statute IS to the time 3. fusion intro- difTerent pu- ensing of ale- found neces- c. 46, which Ities inflicted m retailers of rt'clea, with- forfeit forty eased by the Is, and a disT* r of the con- e fine to any }. All these y to the jus- n the statute made, a li- •ther excisa- xcisable " is ption ; it wa» lieve, in the ich required iponastamp. } justice's 11- only license liiu oiucr ii" r. The term NEWFOUNDLAND. "other excisable liquors" was merely in- tended to designate the kind of instrument which required a stamp ; it was afterwards copied into other statutes, and has grown into a distinguishing term between licenses granted by justices, and licenses granted by the excise (c). I now proceed to the Excise License.— The first Act of Par- liament which required a license from the Commissioners of the Excise, was the 12th Geo. J., cap. 12, which applied to ale and beer only, and was afterwards repealed; and it was not until the 48th Geo. III., the Act under consideration, that ale, beer, and. other undistilled liquors, required an excise license in addition to the justice's license. Pursuing the statutes, according to their dates, the next was the 9th Geo. II., cap. 6, which enacts, that no person shall sell bran- dy, rum, or other distilled spirituous liquors, in any less quantity than two gallons, with- out an excise license, under the penalty of one hundred pounds ; and farther provides thai no licenses shall be granted to any person to sell such liquors, except to those who may be first duly licensed by the jus- tices. This Act was altered by the 16th Geo. JL, cap. 8, which reduced the penalty to ten pounds, and renewed the clause of the former act, prohibiting excise licenses to be granted to any but ale-house keepers. The latter provision was still defective, and to remedy it, the 29th Geo. II., cap. 12, sec. 22, enacts, ** that the commissioners of the excise shall not grant any license to any person to retail spirituous liquors who shall not firpt produce a license from the justices to jsell ale, beer, or other excisable liquors.'* (c) See the cue Rtx f. Downs, 3 T. R. 569, 2r 313 1822. VoNOB V. Bl&ikib. 314 1822. YoNbE Blaikib. A ii CASES IN THE SUPREME COURT, It ismaterial to notice the words of this sec- tion, as they are copied verbatim into the 48th Geo. HI., the Act which is relied upon in argument as repealing the Act under which the conviction is founded. I pass over the 9th Geo. III., cap. 6., which is merely a Parliamentary exposition of the law upon certain doubts a» to existing pe- nalties. The last Act which 1 have bfeen ablb to trace upon this branch of the subject, is the 13th Geo. III., cap. 56, which^ instead of all formei- penalties, imposes a fine ^ fifty pounds upon such persons as retail distilled spirits without a license from the commissioners of the excise. Thus far the statutes requiring an excise licensie to retail, only applied to distilled spirituous liquors ; ale, beer, and other undistilled liquors, might be retailed under the justice's license alone, which, as we have seen before, was liable to a stamp duty (d). J\ow the 48th Geo. 111., the Act in question, in lieu of the stamp duty, subjects the retailers of ale, beer, cider, and perry, to the necessity of a license from the commissioners of excise, upon payment of a certain annual duty,* under the penalty of fifty pounds, with the usual proviso, that no such license shall be granted to any person who shall not first produce an allowance from the justice tb ICeep an ale-house. All the last-mehtiohed Htatutes relate to the excise, atid imjiJoSe certain duties upon granting ejtcise licenses, -which go into the aggregate fund, ^nd form part of the revenues of the stttie. From this view of the Acts of ParliaWCTit, il will be seen that the JuUice's License md the Excise Xicc/ise are different iflstruWientB, regulated by diflerent laws, auid founded on 7): ((0 Sses a fine t>f ons as ense from the Thus far the len^e to retail, :uous liquors ; illed liquors, stice's license 1 before, was Now the 48th in lieu of the [ailens of ale, necessity of a jrs of excise, annual duty, ids, with the :ense shall be shall not firdt he justice tb ist-meStidfted and in)|!K)6e :cise licienses, nd, and form e» f Partianrenl, ? License ^Kd iilstruttients, d founded on d44(b6eo.Iir. Kewfoundjland. distinct principles ; the justice's license liaf vinj? for its object the health and good order of the community ; and the excise license to provide a public revenue,— the one a very, necessary measure in a distant settlement, such as Newfoundland, to which the other is altogether inapplicable. ,, . - From every informaiion tjhich f have been able to collect, the Justices in thjs is- land have always cxei'cised a. control oyer ale-houses, and other places where spirits are commonly retailed ; the laws gutliorising them to exert such authority not o.nly may be applied, but in fact have b^ep appUed ever since magistrates were appointed in the island ; and it appears to me y.^iy pifQ- per Ihey should continue to be enforced (e). 1 am aware that it is said in J^lackstones Commentaries, vol. 1, p. 108,, and other works upon the constitution of the colonies, that the English laws of police^ as well as ojf revenue, are not applicable to thecondi^JQn of a colony; but this must be ^%ki9n jvyji^t^ some limitation. ifn-* ' siir A police of some sort is necessary , to the well-being of every community in the ^arlf^ftt stages of its existence : the appoiptmept of a Justice of the Peace, and of' «a constable, is in pursuance of th€i 1 aws oC pc|liQ^> .^ much as the power of suppressing disprderiy bouses ; and a power of this 80i;t jmay t)^ ^ essentially connected mth ik^jjXfU^xmtMf^ 31{^ ;nn!: ■ II ..: h.:..VMrf| o\ vlo't j.Tf • ' ■ • ' . ' ' • (e) justices were fjxat appoiatetl io i^ewfoiln|ltaiul ftVout Ihe y^r 1728, anq, as it wbjildf appear, asium&d an earlj jurisdielYon over' pubiio haaseS y (orin a memorial •ddfasie^ byabam, to Governor Oftonik jM)f y c^mphin ^C the Fishiog'Bdmirals interrefriag; ;v^|^ ,^l)|8 faiftachjaf jthsir " ■ ]— tMhri»ljufe|ic of® Jjf 8 of England, as such, are thp laws of Newfoundland, so far at least as they can be applied CO it. An 0£iniQn of Mr. ^aney the law-adviser to the JBoard of Tr^de, is cited in Keeveis History, page IIJ, wherein it is said ths^t ft COURT, MEWFOUNDLAMD. 317 siip])ressing a 1. js clears the z., that if the ;ld to be ope- inust equally 1 ports foreign ity at a time, vs them to be I difference of no difference but the law uses : all the enses, the 5th . 4 ; 2d Geo. eo. IJ., cap. 1 the recogni- the parties is r to common i place where e liquor itself, ilendency of -w, as well as led, only ap- itilled spirits d at the time, upon which ict, expressly Ingland, and, by construc- it :i» evident las ' intended •lied to Scot- iiors was sub- such, arethp at least as s law-adviiser d in Jieeves^s t is said tl^t the laws of the parent country cease to ap- ply to the new country when it becotnes a settlement; and if so, adds ^[r. Meeves, it may be important to ascertain from what time Newfoundland may be considered as a settlement. But, with every respect for the opinions of such very eminent men, it has fallen within my experience to learn, that the Colonial Courts date the discontinuance of English statute laws, not from the time of the colony being settled, but from the institution of a local legislature in the colony; and the rea- son of the rule is, 1 think, with the interpre- tation given it by the colonial lawyers. ,1 am of opinion that the statute 35th Geo. 111. is in force in Newfoundland, notwithstand- ing the words of the Act, which limit its operation to England : — it is in force as the law of England. Jt remains to notice the last objection, which is, that the Justices of the Sessions have heretofore demanded a discretionary sura of money for licenses, as a condition upon which only they would grant them. I shall cite the acts of Parliament upon this branch of the subject, and observe, by the way, that neither the duties of the excise, nor upon stamps, are in force in Newfound- land ; and 1 know of no other manner in which money can lawfully be demanded for licenses. The 9th Geo. II., cap. 23, enforced by 24th Geo. 11., cap. 40, s. 24, enacts, that for every license granted by Justices of the Peace, the sum of two shillings and sixpence, and no more, shall be paid to the clerk of such justices, on pain of forfeiting £5. And the 48th George II., cap. 143, s. 10, declares, that it shall be lawful to take such and the like fees, and no other or different fees for licenses to keep a common ale-house, as J82^ YONOB O. BI.AIKIB. ^m CASBa IN YHB S0P4tBMB ^OtlRT. if ^20. hacre heretofore been taken by justiceft clerks. With these remarks, I give Judgment for the d^endanii. n. -i:'.i 'Siti ixft; ; . . . -''•''Uj'»':?iiii'J'jii ills'/ T ._..,...,. .-,.1 I, ". . I ' ? i ■ I ■ •• ■ . . » ' k . • ) •' i i ■. ■, . . ..; . • iif JU>2J|5 ■ ■ i ■ f hi: 11 .'.'Hj htm il)\:' ■. •!i'l •. . .'; \:'/y\^m.. :f^'k}m\U:. 'HJI OORT. ';:,:■; iticeft''clerks. meal for the K&IBORAIt]»A. ■ "fi hii:: On the SOth dfSejtterhhet, 18^2, FnAtJcw l^'oBBEs, Esq., of Lintolti^ Jnh^ B&rristertit Lau), Hsigned the office of 'Chief ^tcstke qf th Supreme Court of Judicature in Sewfound- iaud, to fjthich he had been appointed hy coiii- mission^ hearing dale the 4lh August, \S^^, and the duties of which he had discharged from the I5th ofJuhf, 1817, 1^ thedth Ma^ 1822 ; during the ivhole of which period he was resident in this island. He was succeeded^ on the \st October, 1822, ^Richard Ai^ex- ANDBR Tucker, Esq., A. 31., of the Inner Temple, Barrister at Law, who took his seat in the Supreme Court, on the 5th May, 1823, and continued to preside there,as the sole Judge thereof, until the 2d January, 1 826, when the Royal Charter, granted by His Majesty to the Supreme Court of Netvfoutidhnd, under the provisions of the 5th Qec. XV., cap. 07, s, i7., was promulgated, and the Bench was then Jelled by the undermentioned persons :-^ The Hon. Richard AiiEXANDER Tucker, Chief Judge. The Hon. John William Molloy,^ » ^ and f -g ^ The Hon, Augustus Wallet Pes? Il Barres. 5'^'^ And, at the same time, James Simms, Esq, was sworn into office as His Majesty's Attor- ney General, In September, 1820, the Hon. Edward Brabazon Brenton was appointed 320 .1 MEMORANDA. afi Assistant Judge of the Supreme Court (in the room o/VUf/'f Molloy, who had been re- Zv7dfroJhis office), and officiated zn that ^aracteruntil tfie \Wi Octoler, 1027, when Z con5e9t««*pe^««>TH(lMAS Cochrane sr.- Zrntokglandjhetemporaryadmnu^^^^^^^ of the sovemment devolved on Mu i^cKER, i President of the Council, ^'^^^o minted Mr. B^ESTO?! to act as the Chtqf Judge, S Jameb Cochrane, Esq. «j Assistant l^udgtoftkeSupremeCourt, Thereturnof HisErcellmcyi the Governor to St. jfoAns, on the lUh August, 1828, pi*« an end to this Trrangement ; and Mr. Tuck^p anrf i^r. BwENTON immediately reverted to their res- pective offices of Chief Judge and Assistant Judge., i \- '.,1 >.. i .U.M. I'J.TJvVif/ /A'iU\, .:vui-. . • . i »1 it A ;-« ? me Cowl (in had been re- mted in that ; 1827, when, oqHUANE'sre- idministration Mr, Tucker, who appointed Chi^'Jtidge, as Assistant The return of to St. John's, i cm end to this 3KEP and Mr. dio their res- and Assistant CASES ARGUED AND DETERMINED IN THE SUPREME COURT, SAINT JOHN'S, NEWFOUNDLAND, From the Year 1823, to the Year 1828. M \ Hunters & Co., appellants, and Hernaman & Howard, respondents. Ti HIS case came on upon appeal from the Surrogate Court at St. John's ; and Simms, for the appellants, stated, that Hunters Sf Co. had been the suppliers to one M'Pher- son, a planter, and had supplied him in October, 1820, with articles to a large amount, on account oi the fishery for 1821. That Hunters Sf Co. had received from M*Pher-' son a small quantity of oil on account of these supplies, which had been sold for £26 7^. 5d., and that the respondents, who had furnished 3I*Pherson with the rest of his supplies for the year 1821, had brought an action against Hunters ^' Ca. in the Sur- rogate Court, and obtained a judgment 2s May 12tk, 1823. The Suprema Court has no power to entertain ap- peals from jadg- meats in the Sur- rogate Courts for sums not exceed* ing forty pounds. But the Snpreme Court has autho- rily to issue the writ of habeas cor-, pus, and all other prerogaiire writs. .1' i i^ \l t\- 322 1823. Hunters & Co V. Hbrnaman & Howard. CASES IN THE SUPREME COURT, against them for the proceeds of the said oil. The question, therefore, for the Court to decide was, simply, whether //?wVr5 4 Co. were not, in point of fact, the suppliers of M'Pherson for the year 1821, and, as such, entitled to retain the sum in dispute in part- payment of 3I'P/tcrson's debt to them ? On the part of the respondents, Uayicard objected, in the first place, to the Jurisdic- Hon of the Cow t, which, as he contended, could not receive an appeal from the Surro- gate Court unless the amount of the judg- ment appealed from exceeded forty pounds : and in support of this objection, he referred to the 5th section of the 49th Geo. 111. c. 27, and to an opinion of the law-officers of the Crown, upon the extent of the jurisdiction of this Court, which had been entered, by the direction of the late Chief Justice, in the re- cords of the Supreme Court. But even if ♦he Court possessed jurisdiction in this case, he further insisted that it was bound to affirm the judgment of the Court below, upon the real merits of the case ; for that Hunters ^ Co. were so far from considering themselves as the suppliers of M'Phfrson for the year 1821, that they had actually defended them- selves from an action brought against them in that character, by pleading that they had ceased to be the suppliers of M'Pherson since 1820. They were, therefore, now es- topped by such plea from contradicting that fact. in reply to the objection to the jurisdic- tion of the Court, Simms observed, that Air. Forbes had always considered the provi- sions of the 49th Geo. HI., c. 27, with regard to appeals, as merely cumulative; and had uniformly held that this Court possessed, at eommon law, appellate juris- diction in all civil actions whatever, decided ^'L-. tE COURT, Beds of the said 'e, for the Court ler Hungers 4 Co. the suppliers of 21, and, as such, dispute in part- bt to them ? dents, U ay ward to the jurisdic' > he contended, from the Surro- mt of thejudg- 'd forty pounds : tion, he referred Geo. 111. C.27, ^officers of the the jurisdiction 1 entered, by the tstice, in the re- t. But even if tion in this case, 3 bound to affirm below, upon the that Hunters Sf Ting themselves son for the year defended them* it against them ig that they had I of M'Pherson jrefore, now es- intradicting that to the jurisdic- served, that Mr. Bred the provi- I., c. 27, with ely cumulative; hat this Court appellate juriS' latever^ decided KliWFOUNDLAND. in tlic Surrogate Courts; and with reference to the estoppel, it was urged by Shnms that the plea alluded to by Mr. Haytvard was fded in au action between diflerent parties, and could not, therefore, have any operation, or force, in the determination of the present suit. The Chief Justice said, that as the plea to the jurisdiction involved a point of great difficulty, as well as interest, he should take some time to consider it ; and on the 29tli of the same month, His Honour delivered the following judgment : — If this appeal were to be decided upon the real merits of the case which has given rise to it, the attention of the Court would be confined to a single point, viz., whether that priority of payment, and that lien upon the produce of the fisheries, which the 49th of the late King, and the usage of this colony, have secured to the "current supplier," can be claimed by a merchant who had fur- nished a •• planter," about the close of one season, with a number of supplies intended for the use of the following one ; and the long train of able and elaborate decisions which have been delivered by the late Chief Justice upon every branch of the subject connected with this question, would most probably have enabled me to settle it by the application to it of those principles which have been uniformly recognized and acte^ upon by him. But, upon the part of the respondents, an objection has been taken, in limine^ to the jurisdiction of this Court; the judgment appealed from not exceeding £40, and the power of the Supreme Court tp receive appeals from the Surrogate Courts being, as they contend, confined, by i\ii^ 49th Geo. HI. c. 27, s. 5, to jjjdgn^pnt^ w hich ex-ceed that amount. In orcier, tneret fore, to exhibit the grouijid? ^pjpn wfii^l^ "^'' 323 1023. HuNTBRsdeCo. V. Hernaman & Howard. 'i i 324 1823. CASES IN THE SUPREME COURT. ^^^^^..^.^^ objection rests, and to explain the circum- cle ermine the validity of it, J shall first de- Hbrnaman & If l'»f ^[ords of the section above alluded HowABi,. to, and then advert to the conflictinff eon stnictions which have been put upon those words by Chief Justice Forbes, andThe lal officers of the Crown. IVow by the 49th of the late Kinff it is enacted. .♦ That upon any decree or judff! went given m a Surrogate Court foranvsum partial"! f\ '■' ^'^" ^' 'awAd ?«'r t^ party aga mst whom such decree or iud-! inent shall be given, to appeal therefrom to the Supreme Court, having first given notice recutV?o7h''S' ^"^' '^^'"« -'-" ^"^" for wlli ^^^.^''r^;^-^^ in double the sum tor which such judgment or decree was king or giving such judgment or decree, for duly prosecuting such appeal; and upon l^iLt'c'^rr Jn^^ment^W in theTu STn ?T^ /T/"^ «"•» exceeding £ioo such i ' '^^^" ^r '^ P^'-ty ^^^'n^t whom such decree or judgment shall be given or Cnf.^: • "" IPP- ^^ therefrom to his Majesty hi Counal. having first given notice if such ntention, and having entered into securUy to be approved by the Chief Justice, in dou^I ble the sum for which such judgment or decree^ was given or made, within^two day, after the givmg or making of such judgment or decree for duly prosecuting suc:h appeal shfll h^" • ^'^' of appeal, as soon as Sotice shall be given and security entered into as ?u k1 . ^^^^^ ^""^ "^e very words of the 5th section of that Act, and there is „o another syllable in the whole chapter which T*~~ZZ^ - ^ - -;" tFuttiuver lo appeals. But It was the opinion of Mr. Forbes (whose COURT. KnWFOUNDLAND. 325 n the circnm- callod upon to sliall first (le- il>ove alluded nflicting- con- it upon those , and the law e King it is scree or judg- rt for any sum awful for the ree or judg- therefrom to t given notice ntered into a ubie the sum decree was ays afr^r ma- ►r decree, for 1; and upon 1 in the Su- jeding £ioo, gainst whom be given or 3 Majesty in tice of such ito security, tice, in dou- jdgment or in two days h judgment iich appeal; m as notice Bred into as ed, but not '' words of there is not pter which leais. But bes (whose ynasons for that opinion will, by and by, be reviewed by me with that respect which is due to his Hplcndid talents,) that, independ- ently of any statutable enactment, the Su- preme Court did, and, from its nature and constitution, of necessity must, possess an appellate jurisdiction from all the inferior tribunals of justice in this island ; and that the 5th section of the 49lh Geo. Jll. was merely intended to prescribe the mode in whieh that jurisdiction should be exercised iuouecase; and, consequently, that it was not restrictive of the common law powers of the Court over other cases. Acting upon this principle, he permitted appeals to be brought before him from judgments in the Surrogate Courts of any amount ; but the propriety of this practice having been ques- tioned, and doul)ls having also arisen as to the right assumed ' the Chief Justice of remo- ving the proceedings of other Courts into the Supreme Court by writ o{ certiorari, an opi- nion was obtained (by the (Governor, J be* lieve,) from the law officers of the Crown, who certainlv differed from Mr. Forbes on both points. ^J'his difference did not, how- ever, destroy the Chief Justice's confidence in the reasons which had governed his con- duct ; and in a paper in which those reasons are explained at great length, and with re- markable ability, he accordingly requested that the subject might again be brought un- der the consideration of the King's law offi- cers, accompanied by those explanations from him which would put them fully in possession of the views he entertained res- pecting it; and in the meantime he conti- nued, as 1 am informed, to act as he had previously done. To this exposition of his motives no answer appears to have yet been given by the law officers of the Crown j and 1023. llVNTEKS Hi Co. V. Hf.rnaman & UOWABD. 52C I .1 -^ 1823. IIsaNAMAN & UUWABD. CASES IN THE SUPREME COURT, we cannot, consequently, ascertain what im- pression It may have made upon them. The question seems therefore to be still subjndice; and mstead of being bound by either ofthese discrepant opinions, 1 am now required to declare which of them 1 will follow; forun* til this question shall have been finally de- termined by competent authority, ! shall feel myself as much at liberty lo pursue that course which appears to me to be the proper one, as if the point had never been raised upon any former occasion, Having thus explained the circumstances under which this case is brought before me, i shall now give a short statement of the ar- guments which have been urged by Mr. Forbes in support of the appellate jurisdic- tion of this Couri; and afterwards endea- vour to show why 1 enfertain some doubts upon one of bis positions, and altoirether dissent from the other. Mr. Forbes contends, then, " iotisviribus suts —first, that if the 49th of the late King had been wholly silent upon the subject oi appeals, Ihe Supreme Court of Newfound- land would have possessed an appellate jurisdiction exactly similar to that which ia exercised by the Court of King's Bench : and secondly, that this power, which it derives from the common law, is only modified, and not abolished, by the statute. In support of the former position, he remarks, that the right of appeal is one of the privileges which the subject enjoys by Ihe common law ; and in confirmation of this doctrine, J would here observe that, after a very careful re- search, 1 can only find, among the almost infinite variety of Courts which exist in England, a single one of a civil jurisdictipn(a) (a) The Counfy Court for Middleiex, erested by 23d Geo. IL, c. 33, ' • ■I f '.y COURT, NEWFOUNDLAND, 327 ertain wliat im- on them. The stiUsubjudice; either of these w required to ollow; forun-* 3n finally de- ity, I shall feel pursue that be the proper r been raised Hrcumstances bt before me, ent of the ar- rged by Mr. Hate jurisdic- k'ards endea- some doubts d altogether * totisviribus he late Kins; he subject of f Newfound- an appellate hat which is Bench ; and, h it derives edified, and In support ks, that the leges which n law ; and e, 1 would careful re- : the almost :h exist in •isdiction(a) greeted by 23d I from tht decision of wliich a Writ of Error, or something in the nature of an appeal, does not lie to some superior tribunal ; and in the instance to uhich 1 allude, the judg- ments of the Court are declared, in the Act by which it is erected, to be final, in the most forcible and express terms. Still, how- ever, it is impossible, upon looking at the summary proceedings of the Courts in this island, not to perceive that the principle " in- terest REIPUBLIC(E UT SIT FINIS LITIUM" is deeply interwoven in the constitution of them all; and on this account I am hardly disposed to carry the analogy, in this parti- cular instance, between the Supreme Court and the Court of King's Bench, quite so far as the late Chief Justice : at the same lime 1 confess [ should be afraid to deviate from his steps, if ray opinion upon the other point advanced by him was in unison with his; but as ] cannot, after the most attentive ex- amination of his arguments, bring myself to agree with him on that point, i shall freely state the grounds upon which J am induced to think, that, whatever appellate jurisdic- tion this Court might have been entitled to at common law, in the absence of any legis- lative enactments in regard to it, the 49th of Geo. III. has strictly limited and restrained it to judgments for sums exceeding £40. Now it has been asserted by Mr Forbes, that the sole object of the 5th section of the above- mentioned statute was to enable the Surro- gate, or Chief Justice, to stay execution upon judgments in certain cases therein described, and that appeals may be brought in all other cases without a stay of execution. In his opinion, therefore, the provisions of that sec- tion were absolutely cumulative; and, of consequence, added to, instead of abridged, the appellate jurisdiction of the Supreme 1823. Lit NTERS & Co. V. IIp-rnam an & tluWAKU. f ■ 328 CASES IN THE SUPREME COURT, i- A 4\' 11 Ik, II 1823. Court. But at common law a writ of error Ti.,«^ . ^ operates as an immediate supersedeas (b) ; and Hunters & Co. ,he Courts before which those writs have been Hbrnaman & »'*«"ffht, have on some occasions declared (c) Howard. respondents to be in contempt who have ventured to sue out execution after notice of an appeal. A stay of execution is, indeed, a itecessary and inseparable incident to an ap^ peal at common law; and, accordingly, we find that the legislature has been obliged to pass several Acts (rf)to enable respondents, m the particular cases therein specified, to take out execution upon judgments reco- vered by them in inferior Courts, unless the appellants should enter into proper security to prosecute their appeal, and also to satisfy and pay, if the judgment should be affirmed, the damages and costs thereby adjudged, together with all costs and damages to be awarded far the delaying of execution. It seems, then, to be *' luce clarior" that if thi& Court has a right at common law to receive appeals upon judgments not exceeding £40„ It niuM also possess at common law a power to suspend the execution of such judgment dunng the pendency of the appeal ; but the section already quoted from the act of the 49th Geo. III. declares that in all cases of ^ appeal, as soon as notice shall be given and security entered into as aforesaid, execution shall be stayed, but not otherwise; and, con- sequently this section has, by necessary im- plication, taken away any appellate juris* diction which this Court might, if there had been no such section, have claimed under the common law; for this section only re- quires security to be given where the judg- es; 1 Venf. 331. 1 Salk. 321. 2 Str. 067. (c) 1 P. Wnis. 685. (d) »i'€ 3*1 Jh8. I., c. 8. 3d Car. I.,c. 4. 10th Geo. II., c. 70 ; and 61si Geo. III. c. 124. COURT, writ of error sedeas(b); and ^rits have been ns declared (c) pt who have after notice of on is, indeed, dent to an ap" cordingly, we been obliged t respondents, specified, to gments reco- ts, unless the oper security ^Iso to satisfy I be affirmed^ y adjudged, mages to be ^ecution. It ■" that if this w to receive needing £40„ law a power ih judgment eal ; but the le act of the all cases of >e given and d, execution '6 ; and, con- 3cessary im- ellate juris* if there had limed under >n only re- 3 the judg- 37. 4. lOtb Geo. KEWFOUNDLAMD. 329 HSRNAMAif (b Howard*' liient is of a certain amount, and only, per* 1823. mils a stay of execution where security! bad ^ **^ > ■■■i ^ been given ; and thus it has efiectually de- Huntbks & Cp. stroyed that property which essentially be- longs to an appeal at common lavv. In a few instances the British Parliament has, as we have seen, abridged the quality which) by the common law, a writ of error pos- sess«?s, of working a supersedeas of the judg-^. ment appealed from^ by compelling the ap- pellant lu put in bail in error to entitle him- self to a stay of execution ; but in those, cases to which this enactment does not ann'y, the common law rule still; pre-^ "^^^ 'is; and I think J may; ajSrm that an, .>,.|j<;al which will not entitle ^n appel- lant to a stay of execution, either condittott' ally by the statute law, or uncttndilionally by the common law, is wholly unknown to the law of England, Upon these grounds, therefore, I feel myself bound to declare,^ that I have no . authority to ent^tainlhis- appeal. And here my observations lOn .this case would naturally, have, fetrminated^ if, having had occasion in, the :cour8e i;.');.^ . 2dly. ThatthejurisdictiCHioftheSupBeioe Court would be altogether .imperjfQft^a^d 2t m 950 Pi I « m ^^ih 1 ■ ^kI* 9 '■' s^i ^% ;: !'.: - ■ "• i. 1 u ■ ■^■| I'J !l I! IP '! '. 1823. Kdntbbs&Co. e. vUcBMAMAM & Howard. CASES IN.TUE SVPfiEMB COURT, jnaatisfrctoi-y unless it possesses tlie power for which It contends. i "ww ^t^l!/' J^'^^^here is not a word in the Statute by which this Court was erected, either directly, or by inference, prohibitory ot its exercising such a power; whilst, on the other hapd, its right to do so is clearly deducible from some of the express provi- Sims of the Act, as well as from the spirit which runs through them all. And under each of these heads 1 shall adduce such arguments as must, I conceive prove convincing to every reasonable mind! In the first place, then, 1 shall, for the purpose of repelling any charge of inconsist- ency which may be brought against me for reasoning, m this instance, upon a supposed resemblance between the functions of the Supreme Court anid those of the Court of Kings Bench, after having expressed my doubt* whether an analogy obtained between them-upon another point, content myself With -obseryjng, that the appellate jurisdic- tion of the Court of King's Bench is founded ©n^a different principle from the privilege it highest €purt of common law in the king- dom, it i», ^cept in asingle case (a) stand- Jug upon a particular reason, a Court of ap- peal from all otjier Courts whose proceed- ings ar« gojreitaed by the rules of the common law ; jma ihii jnrisdiction is obviously founded upon tbat^atural Driociple which connect- an infyrior with k superior; and renders the acts of the former liable to the Mvision and control of the latter. Between thwe Ckwrts and It. there is a sort of natural ttn 1 COUBT, les tlie power word in the was erected, e, prohibitory r; whilst, on so is clearly express provi- )in the spirit beads ] shall t, I conceive, ouable mind, hall, for the ^ofinconsist" ainst me for n a supposed ctions of the he Court of ;pressed my ned between itenC myself ite jurisdic- :h is founded privilege it ari. As the in the king- se (a) stand- Court of ap- se proceed- the common s obviously liple which perior, and able to tiie . Between rt of natural its relation *y from the law, ig Very HUNTBRS dc CO. 9. HbunamaN M HOWARO. NEWFOUNDLAND. 981 different ; for with them it has no other cor- 1828/ cern than to prevent thein from passing those limits which the common law has assigned them ; and to enable it to do this, it is ex- pressly armed with the wrrits of certiorari and prohibition. Accordingly it was held by Lord Holt (6), "that wherever a new jn- ** risdiction is erected by act of Parliament, ^ and the Court or. Judge that exercises this *' jurisdiction acts as a Court or Judge of " record, according to the cowrie oftheeom' " mon lavTf a writ of error lies on their judg* "ments; but where they act in a ^tfmmuiT^f *' method, or in a new cottrse^ different from ^' the cotnmon law, there an^rit :ol error lies " not, but a tf^rlHwort.'* It is maliifest, there- fore^ that the ivrit (^ error istiQi€o>'extensive with the certiorari ;• aildv cotiseqiuentiy ,: thosfe restraints wbicb'the40Ui of Geo. IJl. seems to me to have imposed upon afSpeals, do not necessarily extend to vftiX^otceHioraari. Ha- ving shown, then, tipon what' grounds, and for what purposes, the Court of King's Bench is clothed with its- high> and tran- scendent powers, I must next shbv^ thai upon similar grounds, and for sinular pnrposet, the Supreme Court oiigbt to possess similar powers; iind this I shall endeavour tojido, by showing in what points a- comparison will hold between thenti. Mow, ai^ the Court of King'» B^ch is the highest common law Court in England, so also it must be admit- ted that the Supreme Court is the highest Court in Newfoundlftud ; for, without urging other arguments in support of this proposi- tion, it is evident, from the use of the word * Supreme,' which is' a. term of relative sig- nification, that this Court must be above all others in this Island.; But, in order in pre- serve an uniformity of rule^ and t>rac'tice (6) Salli.263, .; / "*. 1332 IV •HCNTERSiSe Co. V. Hbrnaman & Howard. CASES IN THE SUPREME COURT, .on between thetcuLui t 'un^drXch mictions shou d lesidp in ih^ « ""^"**'^ J""s- . precwely the aame footioe as its rl»im *« "sue any otAer of them. Jf, therefoT ft of this colony are totally deDriverf nf f? * protection to personal Iiber?rwhirh ?if* yet they must go this length if the^dp^v the Dow^Prnf *h^ a «"Si» II iney deny A.w •,."„''" "'" «"i'*^»'™e Court to issue it ; (0 L.b. 3, cap. 7, Fo, 108, «. ' I COURT, ' England, the I with power, omnium alia- ;" and 1 think, it a conipari- I under which )n to exercise Jiove that it is er to correct inferior juris- ipreme Court icb, since the must, from e to commit §r Courts iu p my second the Supreme feet and un- 8 the power there is not i'^es its exis- s authority he preroga* oDf nianda- usequently, u must rest its claim to lerefore, it can issue at the most 'this Court ardly pre- nhabitahts d of that vhich the oved by a 'O British fPus ; and bey deny issue it ; MEWFOUNDLAND. 333 Howard. for unless such a power resides in this Court, 1823. it unquestionably does not exist in this Is- ^ ■■* v ' " ^.^ laud. Lame, imperfect, and most unsatis- Hunters & Co. factory, therefore, must the jurisdiction of the Supreme Court be, if it cannot issue the writ of certiorari ; since the same argu- ment which takes from it the power to do so, must, *• if trusted home," likewise strip it of every claim to issue the writ of habeas corpus ; and thus place more than SIXTY thousand BrITISB subjects BE;- YOND THE PALE OF THAT BARRIER WHICH OUR FOREFATHERS HAVE ERECTED AS THE BEST OUT-WOUK AND SUREST DBFENCE OF PERSONAL LIBERTY ( f their pro- for Uie pur- a sufficient ng from the ? But the 13th section- e; for th&t uthority to, py Court in. xception of Qd, surely, \ ►art to eh- 'TtnSi since and absur^ of settling not strictly Courts for NEWFOUNDLAND. whose use they were contrived : nnd yet it is apparent that they never can be thus bind^ ing and obligatory upon them, if their pro^* ceedings are not subject to the inspection and control of the Chief Justice. Moat ful- ly convinced, therefore, that the power to issue prerogative writs is vested in this Court, I shall exercise this powei', without hesita- tion, whenever a sufficient cause is shown to me for my doing so, until 1 shall be posi- tively enjoined, by a competent authority, to desist from doing it : and 1 shall adhere to this determination with invincible resolution and constancy, because the decision 1 have formed upon the other point of jurisdiction, in opposition to the practice, and to the powerful reasoning in support of that prac- tice, of my predecessor in office, has satis- fied myself, as I trust it also must every im" partial person, that in the investigation of this question, my mind has been wholly free ivom any wish, or desire, to fetretch the ju- risdiction of this Court the smallest point beyond its due and legal limits. Hunters & Co., appellants, and Trustees of John Langdon, respondents. JL HE appellants had furnished John Lang- don with supplies for the ftsheries, to the amount of ^27 155. Orf., ^Xuch Langdon had made over to the owner of a schooner fitted out by him for the seal-Jishery ; and the ap- pellants had brought their action in the Court below against the trustees o{ Langdon for this 9um, upon the ground that thev were entitled, in the settlement of LangdmU estate, to a preference as current ^uppli^s* 335 1829. UUNTBRS & Co. r. Hernamah 8c tioWARO. May \2ik. The Surroeata Courl deoided.that the law of current- «upp/y does Dot ex- lend lo a general trader', and that tho49lh6eo.llI., c. 27, is not appli^ cable to tha iealn /ithety. 1 1 lj I !*, ':1l l!\ 'I • 336 1823. Hunters & Co. Trutteei of John Lanodon. CASES IN THIS SUPREME CODRt, Jiidgment lm V. G. much depreciated (a); and that the vahie of bulhon, as measured hy this depreciated medium, experienced a correspond itij? in- crease. Indeed, the rise m the price of the precious metals was even in a hiifher piopor- tion than that of other commodities, owing to the immense exportations of gold and silver which were annually made to the Continent for the supjort of our large armies on the peninsula of ijpain ; and thus a dif- ference of from 25 to 30 per cent, for some time prevailed between the mint-price and the market-price v( bullion. In this state of thing.^ it is obvious to observe, that the ex- change upon England could not be prevented from falling considerably below par, since remittances might be made in cash, and a profit of nearly 20 percent, secured thereon, after deducting all the expenses of its transit. From a laudable desire, however, on the part of the officers of government, connect- ed with the department of finance, to check this discount upon their bills as far as they possibly could, and at the same time, from their not attending with suflicient judgment (a) Many perioni find a diflBcuIty in understanding how a paper'inedium can be depreciated, through any other cause than a doubt of the aolwncy of the Government, or Company, by which it was iasued ; but it is, nevertheless, perfectly true, Ihat it nay be depreciated by excess in the isaiie of ij, where llie most unbounded confidence exists in the solvency oft/ie body by which it was circulated. Thus it may be stated as a proposition, so plain and incantro- vertible that it may be considered almost an axiom, Ihat the value of the circulating medium will always vary di- rtctly as (be quantity of commodities to be bartered for if, and inversely as the quantity of such circulating medium. If, therefore, the latter increase, whilst the former re- mains constant ; or if the latter increase in a higher ratio than the former, itie valiin nf the circu!atin» medium must necessarily decrease. And such was, in reality, the ms« during the operation of the Bank Restriction Act. *OURT, NEWFOUNDLAND. 330 hecame very t tile value of i depreciated ispondinfj in- e price of the igher propor- kdities, owing of gold and made to the r large armies d thus a dif- ent. for some lint-price and 1 this state of , that the ex- . be prevented iw par, since Q cash, and a ured thereon, \ of its transit. :ver, on the mt, connect- ice, to check \ far as they ne time, from 3nt judgment adflritanding how trough any other e Oovemment, or i, is, nevertheless, J by excess io the nfidence exists in irculaled. Thus in and inoantro- \ an axiom, that always vary a bartered for it, sulaiing medium. the former re- in a higher ratio •iilntino mofliiins ,s, in reality, the Bstrictioo Act. lo the causes which regulate their value, Ihey frecjiicntly declined to negotiate them, except upon such terms as runtlered it more advantageous to the party applying for them to make a remittance in specie : and this ha- ving been accordingly done in many instan- ces, the want of •* sufficient circulating medium soon bccirno s nsihiy felt in most of the colonies. To reii-^dy this inconve- nience, different «^',Vi edici/s were resorted to by them. In so ic, "-rc-ourse was had to a paper medium, uiu.er the authority of an Act of the Colonial Legislature: but, as no such measure could be adopted here, it was deemed advisable, in the year 1811, to raise the value of the dollar (the only coin in cir- culation) to nearly the same standard to which silver had r 55. in pay* at home, as i incurred in the arrival of to pay our e directors of tely began to , in the anti< rraents; and m thus rcdu- iplete change Lances which crease to the y. Anxious, lie effect may : cause which a great num- 1 the hope of cehad gene- her to ailow^ at bs. each, lich the debt as to require sterling mo- lage of such )t obtain tlie ountry than % have sup- of the pecu- satisfactory n furnished iemed it one >f which itia ' JUS." But uniform rule s appear to i contradic- One stoutly intof adebt I Newfoundland ■I I of auif description ; and tells us tirat it has I been his invariable practice to do so. Ano- f ther insists upon the same right and the same practice ; but admits that the masters II of ships from England have sometimes re^ f luctantly consented to accept of payment in dollars at that rate, after some altercation upon the subject. A third considers the question open to great doubt; and has, therefore, in his dealings always endeavoured to prevent litigation, by inserting in his con- tracts a special stipulation relative to the value of the dollar. And a fourth contends, that there is no ground whatever for believ- ing that a debt contracted in British sterling can be discharged by dollars at 5*. each. There is, mfact, almost "suus cuique mos." if, indeed, a question of this sort could be settled by a majoiitij, there would, 1 appre- hend, be a considerable one in favour of the doctnne of iha first class ; but it is a sound maxim, that "multitudo errantium non PARiT ERRORi PATRociNiuM ^ " and it is also a settled rule of law, that incowsu^cwt customs mutually destroy each other {h). I am, thcrcrore, quite satisfied that there is no existing usage in regard to the subfect- matter of this action, which ought to influ- ence my judgment in the determination of It. J\or can the slightest use be made of the Governor's proclamation in the settle- ment of this question. As " Arbiter of Commerce,'' the King may, by his proclama- tion, legitimate foreign coin, apd make it current in any part of his dominions ; de- clanng at what value it shall be taken in payments. But Sir William Blaclcstone con- ceives (c) (and 1 think mostjustly) that this ought to be done by compatison with the (b) Black. Com. Vol. l. p, 78, (c) iBt Com, p. 278. 341 1823* Uany V. 342 CASES JN THE SJUPREMfi COUBt» . 1 1 ^ i ! ■■ n • ii.\ % 182d. Hant V. G. & W« Gadbn. Standard of our otvn coin ; and that otliervvisd the consent of Parliament would be neces" sary. Sir Matthew Hale, however, is of opinion (rf) that the King may, by virtue of his prerogative, debase or enhance the value of the coin below or above its sterling value ; and refers to a case wherein it was deter- mined, upon great consideration, that a tender in base money, which Queen Eliza-* betli, by her proclamation, had ordered to pass current in Ireland, was legal. It seems, therefore, not to be clearly settled what are the precise limits of the royal prerogative upon ithis point ; and, conse(]|uently, if the King's representative in this island had ta- ken upon himself to order, by proclamation, that the dollar should be circulated for 5*. sterling, it would, perhaps, have become a nice question for me to decide upon the va- lidity of it ; since such eminent characters as Sir Matthew Hale and Sir fFilliam Black- stone have advanced opposite opinions upon it. But, fortunately, that question cannot be raised in this case; for the Governor's proclamation respecting the ^ alue of the dollar is purely r«commew(/r/ or^, and does not in any shape assume to prescribe a po- sitive rule in regard to it. The greatest force that could attach to this proclamation, would be to sanction, by the concurrence of the Crown, an alteration in the value of the dollar, if the inhabitants would consent to make such an alteration ; and we are thus brought back to the question, how far such an alteration has been made ? And this can- not, as 1 have already shown, be determined by any usage, orcustom, uniformly adopted, and uninterruptedly acted upon, by all the members of the community.— 1 must also here take occasion to remark^ that i cauuot (d) 1 Hal. P. C. 184. 1 count, NEWFOUNDLAND. 343 lat otherwisd lid be neces" wever, is of by virtue of nee the value ;erling value ; it was deter- Lion, that a Queen Eliza* I ordered to al. It seems, Lied what are il prerogative Liently, if the sland had ta- >roclamation, ulated for 5*. .ye become a upon the va- nt characters illiam Black- pinions upon estion cannot e Governor's value of the iry, and does sscribe a po- The greatest jroclamation, )ncurrence of 3 value of the d consent to we are thus how far such \nd this can- )e determined mly adopted, on, by all the -1 must also thut I caiiuot discover, by the records of this Court, that there has ever been a direct adjudication up- on this point by the late Chief Justice ; though I believe it was incidentally raised in seve- ral of the cases (e) which were decided by him ; and from what 1 can collect from those cases, 1 have reason to think that his view of this subject very much corresponds with ray own. 1 confess, then, I do not see by what right, " or colour like to right," the defendants in this action can insist upon the plaintiff's accepting of dollars at 5s. each, in payment of a demand upon (hem for freight which they have covenanted to pay in British sterling. They may tell him, it is true, that the people of Newfoundland have agreed to circulate the dollar at that rate ; but to this it might possibly be a suf> ficient answer for the plaintiff,- that he was not a party to such an agreement-—" Non HJEC IN F^DEBA VENi.''— But, admitting that the people of this country could, by general consent, and with the approbation of the Governor, have raised the value of the dollar to 5s. in such a manner as to make it current at thatrate in all transactions iv/iat^ ever, slill the defendants could not derive any benefit even from this admission, be- cause tliere is not, as 1 have before demon- strated, any existing usage, or custom, founded upon such agreement, which can be applied to the determination of this question. The tender of payment which was made by the defendants being therefore not a legal one, it follows that judgment must be entered for the plaintiff. Lest, bowrver, it should be erroneously supposed, that the principle upon which ] have decided this action will be extended by me to con- (e) I alludn to Stewart v. Ilutchingi-Cookesley j. MUchell~mii Uait ^ liobimon r. A. If, Carter. 1823. Hany V. G.& W.Gaobn. 344 14 m I bl: tl,t' ' *■ 1823. Hany V. O. & W. Gadbn. CASES IN THE SUPREME COURT, tracts entered into between parties who all reside in this Island, it will be proper that 1 should give some explanation of my opinion and intentions upon this point. ?jow it is conceded, on all sides, that for several years past the dollar has obtained a currency (/) in this place for 5s. ; and that such is always understood to be its value in all the ordinary transactions of life. — When the butcher tells me that beef is a shilling a pound, his mean- ing always is, that 1 may have five pounds for a dollar ; and when the merchant sella me a cask of wine for £30, he has not the most , distant idea that he is asking more- than two hundred dollars for it. Nay, fur- ther, many salaries which were formerly paid in sterling money, are now paid in what I must call the currency of Newfoundland. In a word, there is not a contract entered into here, in which there is not an implied under- dfanding between the parties to it that any debt arising out of it may be discharged by a payment in dollars at 5s. each. The practice, itself, I have already traced to its original source ; and shown that its exist- ence ia derived from that want of a circula- ting medium which has at one time or other induced most of the colonies to attempt to prevent the exportation of their coin, by ei- ther reducing the weight, or enhancing the (f) WhoD the sereral colonial legislatures first altered' the value of their coins, they uudoublediy thought that the alterations prescribed by th . ti rr.jld (•« real, and not nO' minal, ones. They soon found, bor^ever, that tbeir poweir extended no further than to maku those coins pass current at a higher nominal value ia the particulsK c««untrie3. which were subject (o their laws ; and that in all trans* actions bet?*een them and the parent kingdom, no chango whatever look place in the value of the coin. Every- coin bad, therefore, two falues, a steilintf and a current one: and I think that the same edect has been nroduccd in Newfoundland, with respect to the dollar at least, by the inhabitants cuusenting to circulate- it for 5s, COURT, JkEWFOUlJfDLANtJ. 345 arties who all proper that 1 of my opinion ?^ow it is •several years mrrency (J) in ich is always the ordinary butcher tells nd, his mean- five pounds merchant sells has not the asking more- t. Nay, fur- formerly paid d in what JL iundland. in entered into u plied under- > it that any lischarged by each. The ' traced to its tat its exist- ofa circula- time or other attempt to r coin, by ei~ ibaucing the iturea first altered< f thought that the real, and not nO' , that their power oios paat current -ticulat c««aniries- bat in all trans* gdom, no chango lh« coiii. Every. ( and a current s been nroduccd lollar at least, by fur 5s, hbminal value, of it. The folly and injafe- 1823. tice of such a proceeding are now pretty V,«*»-v-^te/ generally felt and acknowledged : but when Hany measures of that sort have beeii once adopt- ^ *• ed, and acted upon for any length of period, W.Gadbn,' it becomes very difficult for a community to get back to the path from whence they have strayed. Besides, the evil attending their deviation from it, soon brings about its own cure ; for though most legislatures have been weak enough to suppose^ that the talue of money depends upon them^ and that they may alter it as they please, yei their endeavours to do ^o have always pro- ved abortive. The universal rule is, that the value of coins, as of all things else, must ever depend upon the abundance of, and the demand for, them. In spite, therefore, of any arbitrary decree to raise the nominal value of money, its true and intrinsic value, as measured by this universal rule, will al- ways remain the same ; for prices will quick- ly adapt themselves to the new standard; and the only change which wnJ be produ- ced by it vtrill thus, after a short period, be-^ fcome merely a change of words and sounds — ** Vox, et praterea nihiV* At first these thanges of currency necensarily work some injustice, by compelling a creditor to take less ninney in satisfaction of his debt than he is fairly entitled to ; but upon contracts subsequently entered into, they have no real operation whatever. It is manifest, how- ever, that if we were suddenly to abandon the now prevailing currency, all those per- sons Mrho have cqntracted debts under it would suffer very serious injury ; and «n«« less some Parliamentary enactment, or some decision by His Majesty in Council, shall take place upon this subject, 1 shall always hold, th£^t all contracts entered into in this 2x ,Pi ZiO M fe,.' \ lii) 1823 Hanv V. . ' ><{ most Irapuious ina- «iie apon that aubject.— See ^ 's^» ; a ezeelleat pampblel fejr Mr. Uuiiduant entitied " Th ■o^^^eatioB." wbieb'con- Mm niMh vaeful Md highlj L. t <:dre iafonnitioa leift- tireto^umncin. 'WSl OUR I, ssed for 5ir» mi iii doH'irH the only coiti t no distinc- rown-pieccs, nth part than undenstand- iind itsetms, ssirable tliat f transposing into British her colonies icy diflerent From the s, 1 observe, to consider to English nee between ifferent cir- the common rrency and tainiy, a fal- of compari* le computed cumstances^ in the mar* I ; which is [§•) the real n which ex- country in of that in enominated far, there- s influenced s a correct ;en the cur- as the com' rioeiples wbiob llUnillOUB IFM- >Il«Dt pampblel I," wbiob eon< ifoimttioa Nla« i KEWFOUNDLAND. puted excliange is also affected by thereal ex- «?hange, which is liable to continual fluctua- tion, the computed exchange ought never to be taken as the measure of thai difference wit loutpreviously ascertaining what the state of the real exchange actually is. But it is not lor me to suggest a remedy for the many in- conveniences which grow out of the crude and anomalous condition of our currency (k) My province, I am sensible, is «* Jus dicere BT NON JUS DARE :" and I trust I am one of the last men upon earth to usurp an office that does not properly belong to me. Con- ceiving, however, that it may be useful that my sentiments upon this important subject should be generally known, and perfectly understood, I have investigated it with the closest attention ; and in the hope of pre- venting litigation by an early publication of the rules by which 1 shall henceforth be guided in the determination of all questions which may arise out of it, 1 shall now ar- range those questions under four geiferal beads, or divisions ; and concisely state the nile^which appears to Ue applicable to each of them. 1st. Where contracts are formed, or a debt m any way accrues, in Great Britain, the presumption seems to be, that the parties (A) ^mong ihe evila aUending ibe present state of onr ourwocy. I oanoot forbear to notice the want whirhL I «t a dollar. Tbat bv ebitl n&B of thp nam Pn»i:.k • •bould b. gi.en in e.chaagifor . doH.rT wbfc^dor"*! oonlala nine^ientk, of tbe .iker rbat .hey 50^0 one , .hi;? can suppose : and it is even less rrohablo thai fi.« « "''• qf a doJIa. (wbicb contain ratbef 3l^|„r h '%^""'"» .hillings) Should be given in exXngT 'ooel'lS* f he necessary consequence. Ihereforef of „ot rlf.ijf thl value of lhe/rac/ion«/ parti of ibe dollar in the til/ jiortim foUh t/ie dollar; v,uB lo dHve those yricLlT^"' out of ih»«n.m.r- . .„j .._! J . ,"■* TMHonal parts "' ' """ «"Jc»3 iiieir place bad been '■•m S!m .3^ 'T* 'P""""* "«•-'>"' «f •»•« old S-!"'^: would bav. been very difficult, and almost neitSiJ possible, to procure cbaoge for a dollar "' 347 1823. Uany G.&W.'gamn. K>i w 348 i '} 1 1 1823. Bany G. & W. OADBlf. CASES IN THE SUPREME COITRT, must have understood that payment was tq be made in Sritish sterling. I shall, there- fore, by 2i generalintendmentoflaWtQOimi\QV this as forming an essential part of all such contracts; and shall, consequently, hold, that they cannot be discharged by payments in dollars at bs. a-piece. And, a multo for- tiori, that a payment of that description can- not be a«legal satisfaction of a contract in which, ex abundanti cauteld, the parties have inserted an express stipulation for payment in British sterling. 2dly. By an agreement— carprcj* on the part oC those persons who signed it, and implied on the part of the other members of the community, by their acquiescence in it for nearly twelve years past — the dollar has obtained a general currency in this island for bs. In all transactions and dealings, therefore, which are wholly confined to Newfoundland, I shall enforce this general agreement as strictly as if the parties bad, in each particular case, covenanted to ac- cept of payment in dollars at that rate. 3dly. All debts which may be contracted between the inhabitants of this island, and of those countries (for example, Canada and Nova Scotia) where the dollar also passes for &s.f may be satisfied by payments in dollars at that rate ; unless there be any circumstance attending the transaction out of which the debt arose, from which it may be fairly inferred,^ that the parties intended that payiqent should be made in British sterling. , 4thly. In our intercourse with those coun- tries which have a currency of their own, different from British sterling, and also dif- ferent from the Newfoundland currency (t), (t) By ao tct of the New Brunswick legislature (be nominal value of tba dollar Aoi lately been raised to 5s. 4U, in that prwince HI " I Lt was tq II, there- consider all such y, hold, taymenU lultofor- tion can- ntract in ties have payment ' on the I it, and mbers of mce in it ollar has lis island dealings, fined to s general ties bad, j to ac- ate. »ntracied and, and lada and io passes ments in be any ction out ;h it may intended I British NEWFOUNDLAND. we must adopt the principle, ** quam legem exteri nobis posuere, eandem illis ponemus ;'* and admit evidence of what their practice is respecting the payment of debts growing out of contracts which have their inceptiou here, and their completion in any of those countries. Thus, if freight, for instance, from Newfoundland, is paid by them in their currency, freight from thence to Newfound- land will also be paid by us in our currency j but if it has, by the course of trade, been generally settled in British sterling, the same custom will also be observed by us. In framing these rules for my future guidance, 1 have been obliged, in the absence of any municipal law to regulate our cur- rency, and of any judicial precedent to de- termine how far custom has supplied the place of such a law, to resort to principles of natural equity ; and 1 cannot close my ob- servations upon this most interesting sub- ject, without expressing my unfpigned diffi- dence in the powers of my mind to grapple with a question of such vast magnitude, and accompanied with circumstances of such singular difficulty. Under the strong im- pression of this feeling, I shall, therefore, earnestly recommend any person who may be dissatisfied with the principle upon which 1 profess to decide it, to avail himself of the first opportunity of bringing the point, by an appeal from my judgment, under the qopsideratioa of his Majesty in Council, 34» 1823. V. )se conn- leir own, also dif- ency (i), islature the d to 5s. 4((, 350 I An eleclioo of Church-icarderUf according lo (he ^re^ailing practica in thia country, is good : aDdchiircli" wardens so elected, have a right to r«> move from the church any arli- tides they may deem injurious to its appearance, or offensire lo the members of the coBgregations. CASES IN THE SUPREME COURT^ William Nevfman a(r,nnst The ChurcA- WARDENS. Jj 111!) several points whfch arose in this case are stated, and tlic law applicable to them explained, by the Chief Justice, in the following: judgment :— Per Curiam. The only question for the Cowt to decide in this case is, whether the defendants were authorized, as Church- wardens, to remove from the plaintiff's pew certain curtains and other fixtures which they peem to have considered injurious to the general appearance of the church, and offensive to some of the nieuibers of the congregation I In the course of the trial an attempt was, indeed, made to show ,ir\t the defendaats bad not been electtd Clmrch- wardencft^cordi^ig fo nil the forms aud solem- nities required by law ; but 1 Hien expressed a strong opinion that it was rfuite sufficient, in an action of this nature, for the defendants tj prove that they had acted as Churchy- wardens, and been acknowledged as such by the community at large. Upon this point, the ase oi Baryman v. Wise, 4T.R. 306, is quite conclusive; for thore Mr. Ji»a- tice Bullev h reported to have said, that "in the cas*' of all peace-oflir rs, justices o£ *• the > ac constables, ''.c. it was sufficient **to \ av« hat they actnd in thosr charac- ** ters,. v'ithoiit producing * heir appointments **(and that even in the case of »nMr 1823. Nkwman V. iTieCiiyncH" ^ARDBNS. Ill 1 CASES IN THE SUPREME COtttt, church, we must perceivf that the oath beiilj; intended lor the benelit of the church, and the right to administer it being conceded to il n.-. an irtdulgence, the church is at liberty trt wave this privilege .upon the principle •' gu is- QUIS POTEST RENUNCIARE JUKI VHO SE IN- TRODUCTo ; and that, consequently, an oath of that nature cannot be deemed essenfially necessary to the validity of the appointment of aChurch-wardtn ihthis country. Thecttect of the plaintiff's argument throughout, is to prove too much : for he contcndn for a con- formity, *• in omnibus,"' between the usages of Etigland and of this country ; forgetting that if the church here were really clothed with the same charncter, and invested with the same rights, which it enjoys in England, he would be liable to the payment of tithes, Easter-ofl'erings.and other ecclesiastical dues wiiich are^ unquestionably, of far greater va- lue to the church than her privilege of com- pelling Church -wardens to take an oath for iho faithful execution of their office. But wc are taught by reason anrl good senses as well as by act of Parliament (rf), that the law of England is the law of Newfoundlandi so far, only, as it can be applied to the situa- tion and circumstances of this colony ; and the slightest attention to its present situation and circumstances, must convince us that a very small portion indeed of those parts of the canon law, which, by long custom ^ have been incorj,.. rated into the laws of England, Are capable of being carried into operation here. The utmost, therefore, that can be insisted on bv the most rigid stickler for form, is, that t At usages should conform to those of the mother-country as closelu as air- tumstanceswillpmnit: and trying the prac« tice which has prevailed here, in regard io (d) 40lb Geo. 111., o. ^/, s. I* ?> le oatti bciilj:^ arch, ami the needed to it 9 at liberty to iicipIe*'uiJis- I PIIO SE IN- intly, an oatli n\ essentially ppointmcntof ly. ThecHcct oughout, is to id» for a con- en the usuKes y; forsiettins: really clothed invested with rs in England, nent of tithes, esiastical dues far greater va-* irilej^e of com- ce an oath for ir office. IJut ood sense, as f), that the law fonndlandj so to the situa- colony ; and esent situation ince us that a those parts of : custom, have' rs of England* into operation B, that can be pid stickler for d conform to i closely as cir- rying theprac* in regard io NEWFOUNDLAND. the appointmontof Church-wardcns, by this standard 1 can iind no fault at all with it. Un the contrary, I have observed with much satisfaction that the practice here seems to follow as closely as possible, the rule pre- scribed by the 89lh canon(f') ; and knowing as J do, that the most important deviations (/) from that canon will not impugn the validity ot the election of Church-wardens in Eng- land, provided there be n custom to warrant wich departure from it, 1 have no scruple in pronouncmg the defendants, who were cho- sen according to the custom which has uni^ formly prevailed in this island, to have been dtify elected. Assuming, then, that the defendants were t^hurch-wardens. properly chosen and ap- pom ted, It remains to be determined whether as such, they had authority and power td - remove the curtains and other articles from wie plamtira pew in the manner they did. And I conceive that they clearly did possess such authority and power. That the own- ers of pews have not an absolute, but onlv a qualified, right to them ; and that th4 cannot, consequently, make any alteration »n them which has the remotest tendency to injure the appearance of the church, or to annoy any member of the congregation, is a position too plain to admit of an argument- . but from this proposition it follows, as a corollary, that a power must be lod«»ed somewhere to determine what alterations are injurious to the appearance of the church ; and by the law of England (s') such a power is placed in the hands of the Church- (e) Se« Ca«e»T. £aru)ici&,1 Sir. 145. "Lo-rdofihe Manor "'" -—'«»''»«<«««-. o, by i^ (Sr) Burns'B Eccles. Uw, vol. 1, p. 386* ' i> i * ? d63 1823. Newman V. The Ciii)RcH« WARDIlNS. ^-TT*!^ 354 U^i'' nu \i tlli 1623. Nevtman The Church- wardens. CASES IN THE SUPREME COURT, wardens, who may, with the consent of the parson, pull clown anything which has been erected in the church by an individual with- out due license. 1 apprehend, therefore, that the proceeding complained of hardly needed the sanction of a vestry reeolntion, though that certainly gives additional force to it. And, with respect to the objection which has b^en urged against the notice by which the meeting of the vestry was called^ 1 shall only remark, that as the use of a notice is to apprize interested parlies of the subjects which will be brought under the consideration of the vestry, in order that they may appear to defend their rights, a defect in the form of the notice must necessarily be aided by the appearance of the party '; and, consequently, that as the 2)laintijf'was actually present at the meeting in question, he cannot have sustained any prejudice from a defect in the form of the notice by which it was convened. A power to remove any fixtures placed in the church by an individual, being thus, an I conceive, vested in the Church-wardens— at any rate, in the Church-wardens and vestry -^it is not for this Court to say whether or not they have exercised this power with discretion ; because 1 have no legal rule by which to measure their conduct ; and, in the absence of such a rule, 1 am aware that my [opinion upon it is not entitled to any par- ticular regard. In justice to the defendants, however, 1 must add, that they do not ap- pear to me to have been influenced by those hostile and vindictive feelings towards the plaintiff which he is disposed to ascribe their conduct to: and 1 am p -suaded they will readily restore the curtains and other (A) Qanw. if thi plaintiff's properly in tbeiu be extin- gjuiehed or ool.-nd express ies; and he the former ress aa the cner of the other li^ht ; to which y an acces" which prC' hes of sup- I do, with subject, I nity to it, ly entitled effects of r; and I of decla- been the ' question at of ray nh which ith regard lives and he great- convince t ever be ST VAGA liar con- s existed lie other ; and to neasure. NEWFOUNDLAND. ascribe that spirit of litigation which has been so remarkably prevalent among the members of this community. It is obvious- ly, therefore, of greater inif)ortance to the peace and happiness of any countrv that its laws should be clearly dejined, than that they should possess superior excellence ; since men may enjoy tranquillity and security under a code of laws by no" means perfect; whereas they never can be quiet and secure where the laws are obscure and liable to arbitrary changes. In other words, it is of much 1. i^s consequence what the rule is upon any giv^n subject, than that there should be some fixed and settled rule in regard to it. But it is evident that this certainty, so desi- rable and so necessary, can never be attain- ed if judges allow themselves to think that they are not strictly bound by the solemn determinations of those judges who have preceded them ; for if the decisions of a judge may be over-ruled and overturned by his successor, a new rule may be introduced by every new judge ; and thus variety would usurp the place of certainty in our system of jurisprudent^ By authorizing tile Chief Justice of I vfoundland to decide how far the laws of England can be applied to that anonialons state of things which exists in this island, the Imperial Parliament has in- vested him with a larger share of power than IS, perhaps, delegated to the Chief Magis- trate of any other British colony; and, hap- pily for the iriterests of this countrv, that power was lately committed to a man whose incorruptible integrity, firm independence, indefatigable industry, acute genius, and sound learning, eminently qualif-ed him for the discharge of the arduous and important questions depending upon local usage have 357 1823. Chancey V, Buooki.no. Wflli:Vi.V!-»wt:ib 358 1823. Chancey V, Brooking. CASES IN THE SUPREME COURT, been already determined ; and wherever 1 find that a point has been exprf.ssly decided by him, J shall feel myself imperatively bound by his decision upon it. Nor do 1 apprehend that his reasoning can often fail to convince me of the propriety of his opi- nions ; but should this ever happen in any case, 1 shall still conform my judgment to his decision ; taking care, at the same time, to state freely the grounds upon which I venture to differ from him ; in ord • that the party against whom 1 shall consider my- self obliged to give judgment, may, if he thmks fit to act upon ray view of his case, appeal to His Majesty in Council; by whom alone, as 1 conceive, such decision, if erro- neous, can be reversed. And until it shall have been so reversed, it will be regarded by me as a rule from which, though 1 may dis- approve of it, 1 shall not consider myself by any means at liberty to depart,—" Lapis MALE POSITUS NON EST REMOVENDUS." By adhering rigidly to this line of conduct, 1 trust I shall accelerate the arrival of the pe- riod when the laws of Newfoundland will be as clearly ascertained, as well under- stood, and as satisfactorily administered, as those of the other parts of the empire ; and that I shall have the gratification to see the spirit of litigation decline, as persons daily become better acquainted with the nature and extent of their respective legal liabilities, and rights. » ij ■ r V m iiiiatlii "nil iiirtiirifi COURT, NEWFOUNDLAND. 359 I wherever I issly decided imperatively t. Nor do 1 :an often fail ' of his opi- ippen in any judgment to e same time, ion which I I ord ■ that [consider my- may, if he ' of his case, :il; by whom ion, iferro- intii it shall regarded by I I may dis- 2r myself by t, — " Lapis NDUs." By conduct, 1 \\ of the pe- ndland will ^tll under- nistered, as npire ; and L to see the rsons daily the nature al liabilitie& Ji HE liability of Government property in this town to assessment, under the 1st Geo. IV., c. 51, is the question submitted to the consideration of the Chief Justice by the following memorial: — To the Hon. Richard A. Tucker, Chief Justice of the Island of Newfoundland, Sfc. ^c. 4'c. The Memorial of the Appraisers under the Act of the 1st Geo. IV., c. 51, for the rebuilding the town of St. John's, and for indemnifying persons giving up ground for that purpose, HUMBLY SHOWETH: — That your memorialists were duly appoint- ed Appraisers under the said Act; "that in conformity with such appointment they pro- ceeded to value all the property within the limitsof the said town ; in the doing of which, your memorialists had some doubts M-hat were the limits of the said town of St. John's ; and, also, whether Fort William, Fort Townshend, and other buildings be- longing to Government, came within the meaning of the said Act; and in order to remove such doubts, they made application to Mr. Forbes, the late Chief Justice, for his opinion and interpretation of the said Act, who gave tli^MTi his opinion: That the town of St. Joh'A s was defined and laid down in a plan to b-; tound at Government-house, and design). it( J "A Plan of the Town of Saint John's '■' by the Act of 51st Geo. IIJ., cap, 4>; and that as the Act was framed for the express purpose of arresting the pro- gress cf fire in future, that the Government buildings were cqaaily protected with other 1823. June \Qth, Government pro« perty in St. John'* — ix.gr,, a barrack —is nut liable to asseasment under the l9t Geo. IV., cap. 51. 'riie general rule that the King is not bound by Acts of Pnrlianient, un- less he be parliciu larly named there- in, IS open to some exceptions ; for if the Act he pro» fesseUly made for the remeil!/ of some f)ri:at public evil, the advancement of religion, the encou^ ragcmcnt of learn' ing, or the support of the poor; if will bind tho King, though he be not named in it, 'if it does 710/ trench upon any of his established prero" gativcs, or directly tend in its opcra"^ lion to expose him to any j)ecuniarif chaujc. n Vl 4Vr7'W'I»'.»i»«'' e .. , 8G0 $ Vf il TAStS IN THE SUPftEME COtJRt, 182.'?. KRS under 4th ©to. III., c. 61* property by Ihe widening the streets ; and bv the API.RA13. !^L. ff'^o'.nd SO taken away by an assess- ment on their property. Government could not shrink from a tax that was laid on the snhjectj jjarticularly as they partook of the protection afforded by the Act.-.Yoiir me- morialists delivered an account of the as- sessment on all the Government property lo Jus lixcellency the Governor, and demand- ed payment of him. His i^xcellency paid L'^'i'oon'Vo"'''''! '■'' ^^^ «ssessuient(amounting to 1229 105. 4d.) on the Government-house! XVavy-yard at the South-side, the Ships'I room, and all the public property that he considered immediately under his direction, but desired your memorialists to call on the Officers of the several departments for the assessment of the property under their ^hai:g«, which tijey have refused to pay. *our memonalists beg leave to state, that the garrisons were not valued as fortifica- tions, but only in their value as houses, tenements, &c. Your memorialists exhibited their book of assessment to the Governor, ;«;heri finished, who approved of the same. Ibat they afterwards laid it before a public meeting of the said town called for that purpose, where it was also approved of. Ihat It was also laid a considerable time lor inspection aMhe house of Mr. T/tomm, one of the appraisers, while the public were invited by advertisement to examine it for the purpose of ascertaining if their respect^ ive properties w€re correctly recorded in it ♦ many of the proprietors availed themselves of this opportunity ; others did not, where but two material objections are made, which were decided on, and overruled by Mr. Jf our meraoriali^ts, tlierefore, pray tfa^ f IE COtJRt, he streets ; and Jnipelled to pay ly by an assess- vernment could was laid on tlie f partook of tlie kct. — -Your me- ount of the as- lent propnrty lo , and demand- Ixcellency paid ient(amounting ernment-houso, le, the Ships* roperty that he >• his direction, i to call on the jpartments for ity under their jfused to pay. e to state, that ed as fortifica- ue as houses, ilists exhibited the Governor, i of the same, it before a wn called for ) approved of. nderable tin>e Mr. Thomast e public were examine it for their respect- corded in it; 1 themselves d not, where made, which ded by Mr. re, pray th« KEWFOUNDLANir. 361 advice of your honour in the premises; 1?J23. whether the public buildings in question, so ^ ■- - m . ' assessed by your memorialists for the pro- Case submitted tection the Government buildings derive ^f •'>« Apphais- from the widening of the streets (the streets g*' "J^' "** ^'* having been widened in front of the ordnance- ''°' * °' ^^' yard, and other public buildings), are sub- ject and liable to such assessment? or whe- ther your memorialists must retrace their steps, and assess the whole town anew, to make up the deficiency occasioned by the non-payment of the sums in question ? Wm. Thomas, Alex. Haire, Henry Shea, Geo. Lilly. St. John's, 19th June, 1823. Upon the foregoing memorial, the follow ing Order was immediately made : — Let such notice of the application which has been made to the Courts by the forego- ing memorial, be given to those officers of Government who have refused to pay the several sums of money assessed upon the public buildings respectively committed to their charge, as will enable them to justify (if they shall think proper to do so) their refusal to pay the same, either by a written statement of the grounds upon which they conceive the property of the Crown to be exempt from the operation of the Act of the 1st Geo. IV., c. 51 J or by personal appearance in this Court, on Monday the 23d instant, at 11 o'clock in the forenoon. R. A. Tucker. Supreme Court, 19th June, 1323. And on this day (the 23d instant) the Chief Justice question in these terms :— - 2z 302 th W ■' It Pi' 1823. Case Bubi))ilted Ly the AprRAls* BBS uniibt the lit Geo. IV., c. 51 CASES |H THE SUPREME COURT, In considering the question which has been proposed to me by the appraisers, ap- pointed under the Act of the 1st Geo. IV., c. 51, for •* the rebuilding of the town of St. John's, in Newfoundland, and for indemni- fying pei-sons giving i^p ground for that pur-? pose," respecting the liability oi Government property to an assessment under the provi- sions of that Act, ] have found \i difficult to repress a wish that I might feel myself aur th«rized to pronounce that the appraisers were warranted, by a fair construction of the Act, in including property of that description in their rates ; for, in the first place, the events to which that Act owes its origin were so afflicting and calamitous to the inhabitants of this town, that it is impossible not to de- sire to extend its operation in their favour as far as possible ; and, independently of the warp which may thus naturally be produced upon my feelings, I am always anxious to concur in opinion with Mr. Forbes, who, i am told, was quite satisfied that Govern- ment property was subject whether named therein or not^ provided it does not trench upon any of his established prerogatives, or directly tend irt its operation to expose him to any charge^ 'J'hus, it has been decided) that the 5th and 6th Edward Vi.) c* 16, which was made for the prevention of corruption in the buying and selling of public offices^ is so far binding upon the King, that he cannot dispense with the liability which the Act imposes upon persons convicted of an offence against the provisions of it (Co. Litt. 234, a. ; 3 Inst. 154.) So, also, it was solemnly adjudged in Uie Magdalen College case, that the 13th Eliza- beth, c. 10, which was intended to promote the interests of religion, by restraining the alienation of the property of the church, does extend to the King (11 Rep. 66.) And the same rule was recognized in the case of the King v. the Bishop of Norwich, and Others, which depended upon the construc- tion of the 31st Elizabeth^ c. 6, for the pre- vention of simoniacal presentations to bene- fices (Cro, Jac. 385.) But in these, as well as In many other cases which might be Cited totho aamo purpose, ti";3 statutes un- der which they arose did no^ infringe any 3G3 IBS.-?. Case submit'cd l)y iho Apprais- RRS under (he let Geo IV,, c. 31. IJ ■' i w 804 CASES IN THE SUFaEMI! CODRT, 1823. Case Bubmilted If * |,f branch of the Royal pieros:ative, nor subject the Crown to any direct imposition or bur- by ih. AppRAis- n * \^ ^'"^^ °"'y incidentally and coMaie- «Rs under the 1*1 ^f'^ ">»' tho King could be affected by Ceo. IV. c. 61, them; and yet their several objects might have been completely evaded and defeated, jMhey had been altogether inoperative npon him. It was, therefore, most properly de- termined, that he was bound by, although not particularly named in, them, i cannot, however, find a sentence in any book of law which has fallen under my observation, that will warrant me in carryingf the excep- tions to the principle that the King- is not bound by Acts of Parliament, unless parti- cularly named therein, a single point beyond what has been done in the cases ju^t men- thmed ; but, on the contrary, I perceive, that wherever a case does not fidl within any of those exceptions, the general rule is most strictly observed and maintained. For example, it is admitted that the King is exempt from the payment of rates under the 43d Eliz. c. 2 (Nolan's Poor Laws, vol. 1, p. 65) ; and the reason of this exemption seems clearly to be, because he is not named in the Act (Nolan, p. 122). But the 43d of Eliz. IS, as IS well known, the foundation and corner-stone of our whole system of poor laws; and has accordingly received the most liberal construction for the ad- vancement of the interest of the poor, which the judges could possibly give to it. If, therefore, they could, in aw^ case, have been induced to depart from the general rule, we are authorized to believe that this was pre^ cisely the case in which they would have done it. Let us see, then, since the 43d of Eliz. and the 1st Geo. IV. are, from the objects for which thev orovide. pnunllu gntitlc^. /« y. itoeral tnterpretation, whether there is any 1 I $ COURT, ve, nor subject ositiun or bur- ly and oollaie- be affected by objects miglit and defeated, )perativc upon t properly de- i by, although m. I cannot, any book of / observation, ngf the excep- B King is not unless parti> point beyond ises jujvt nien- ^ I perceive, ot fail witbin eneral rule is ntained. For the King is ites under the Laws, vol. 1, is exemption is not named ut the 43d of le foundation le system of gly received for the ad- i poor, which fe to it. If, •f€, have been eral rule, we ' Ihis was pre^ lid have done 43dofEliz. the objects pnf.ffjgfl. t{i /; there is any NEWFOUNDLAND* 305 EKs undf^r the Ut Geo, IV., c. 61, expression, or w ord, in the lallv)', whiHi will 1823. enable us to push its operation bevond tlu- "^-^mm^^^^m^ limits winch have been assigned by Courts ot Case submitt.J J^avv to ilie former. Now, the 1st Geo. 1V» ^^ "'« Appraise directs, that the assessment to be made in ""^ """'"" *' pursuance thtTeof, " shall be paid nil and *• every t! ^proprietors of houses, uents» "lots, and parcels of ground, ig and " bemg Within the limits of the saiu town of *' St. John's ; " and the 43d of Eliz. enjoins the overseers *• to raise weekly, or other- *' wise, by taxation of everv inhabitant, '* parson, vicar, and other, and of every oc- ••cupier of lands, houses, tithes impropriate, *' propriations of tithes, coal mines, or sale- "able underwoods, in the parish," such sums of money as may be necessary to ac- complish the object of the Act. l\\ there- fore, the King is not included under the designation of an ♦' in/tabitauf," or the *'oc- cupier of lands and houses;' 1 cannot disco- ver any reason for including him under the description of the '' proprietor of /i(,uses, u- nements, lols, and parcels of ground" Indeed, the two statutes appear to me, with reference both to their subject-matter and their phrase- ology, to run " quatuor pedibus'' with each other; and I am, consequently, most deci^ dedly of opinion, that the same construction which has for more than two centuries been given to the one, must also prevail in re-^ard to the other. But it may, perhaps, be urged, that the Kings exemption from the poor rates m i^ngland is ^personal orivilege, and that arguments drawn from it ought not to be applied to a question relating to Govern- *"A°' P!:oP^'*ty not in the ;7crjowa/ possession of his Majesty. To this I answer, that it was always holden,;?roci«/e?tt*w, that property .'^"vPJca oi^iviffjur mepuoiic use, is not sub- ject to assessment under the 43d of Eliza- ^y:^v^. IMAGE EVALUATION TEST TARGET (MT-S) & './ it 1.0 1^1 23 1^ l£ I.I l£ ■ 1.8 125 iu 1.6 150mm >4PPLIED^ l^>4GE . Inc jsss 1653 East Main street .^S '- Rochester, NY 14609 USA .i^^^ Phone: 716/482-0300 •^='.2== Fax. 716/288-5989 O 1993, Applied Image, Inc., All Rights Reserved r\^ i\' j,v <^ A. w ^ ''^^ •^'-^ '^ ^t^ .^"k {r^^^ \5^ 36(5 »'.. I'f 1023. Case ftuhmitled by the AppKAis. KRS under the 1st 0««. IV., c. 61. CASEi IN THE SUPREME fcoURT, |»etli ; and the question which arose uport that Act was, wliether the King was not li- able to the assessment on account of hrs benejicial occupation of the premises? (/t) 1 he argument against the assessment of public property, is, therefore, stronger when It IS not in the personal occupation of His Majesty than when it is; and I confess that the doctrine, that public property nhall be taxed for the promotion of any public object whatever, is wholly new to me. and seems LT*? - ,^^ ^^«"r^'ty like that of taking from the right hand in order to pay the left Jn facti the appraisers Mrere so far »ware oi" this, that they have not rated the Court- iiouse^and other pnblic buildings, which they considef as belonging to the totvn \ but the distinctibn which they thus endeavour to pfiblu of Newfoundland, is not, 1 conceive, warranted either by the language, the inten* tion, or the spirit of the Act under which they derive their authority ; and it wonid I npprehend, require a perfectly clear and ex- plicit enactment to subject a'barrack, erect- ed for the protection of the town against enemies, to a contribntion to any expanse which mrty be incurred for the sake of ore- serving it from the destructive effects of fire. In the absence, therefore, of any such enactment, I have no hesitation in declaring that this Court has not the power to coerce the payment of the assessment which has been made upon any part of the property lielongmg to the Government. If such pay- ment has been voluntarily made in one in- (*)rpon Ihl. piiaeiplf I tboold bav* held, that fli. oMMpiara af Gov«rniti«nt bonaai, aa tba Aaaistant C«!»! uftdar ..milar clronmalancaa, war. liabla iXuMwrnatTf the rata had bMn M aii««<.i »n. — »«• ■■ wsmaoi,!! ^hicheo«idb.f.iriiii;iirb7te*;;tfr "' *°" "*'"• wmmm HE fcoURT, ich arose iipoii Jng was not li- accoiint of lirs B premises ? (k) assessment of ', stronger when iipation of His i I confess that iperty fthali be »y public object ne, and seems B that of faking to pay the Jeft. 80 far »ware of* ed the Codrt • igs. which I hey totvn I but the endeavour to ptiblie find the »t, 1 conceive, age, the inten- t under which nd it wonid, I clear and ex- iarrack, erect- f town against > any expense sake of pre- ve effects of B, of any such n in declaring ^er to coerce It which has the property If such pay- ide in one in- r« heldt tbtt lb« ■AaaitUat Con* iptr, and «H|iti« tbauN«anMDt,if of iiiii Miurt i^EWFOUNDLAND, stance, it must be considered and accepted by the inhabitants entirely as u boon ; and it cannot, consequently, be converted into a precedent upon which a claim may be founded to compel the payment in other cases. 367 1023. In the matter of ThomasTkistle's Estate. Memorial and Order thereon. Tq the Hon. Richard A. Tu<;kkr, Chief Justice of the Island of J^ewfoundland, 4 c. 4 c. 4 c. The Menjorial of JoHi^ Hili^yakd, of St. John's, HUMBLY SHOWETIi: — - That since the decease of your mcmori<)l- ist's mother, who died about fourteen years ago, and who was entitlecl to some proper- ty in Harbour Grace, under the intestate estate of her father, Mr. T/uimas Thistle, your memorialist has principally supported liimself by his own exertions, aiid his sister lias resided with Mr. M'Kie, her uncle: that the property of the late Mr. Thistle has been divided among his children ; and that part which would have been your memori- alist's mother's, if living, has been under the care and management of Mr. JU'Rie^—youv memorialist's father being now, and for a nunjber of years past, in a state of in- sanity : that your memorialist having passed his minority, and conceiving that no person uias a greater interest in the property, which roust come into his hands and that of his sister's, whose prospects in life he is desi- rous of promoting, nrayg that, as hh ikther is in a state of insanity, and not likely to re- J'.inc 2\lh. 3GQ CASES IN THE SUPuEME COURT, T,, ;i 18<>3 * «.s &u... »h«rem menlio.ed ; and «^IUver p'm^ " St. M„,.,e,hj^- «-"*»», Jin. forth ii alattrad Lrd"f^^^^^ instant, *'' ''*"'»l'" ''»«« ""e lOth fori to CoM?f f"^''.,')'"'""''"*'' •« 'aiJ be- f June ^Oih. Order of Courf, •ppoioling Guar- In the matter of Jane HiLtVABo, an infant; •ppoioling Guar- Frp diaoa of the person fr . ^**' Ordered that Neu'mn» W' 1, «"d .Slat, 'of .„ Holies, and Jamei Cross £aTL '' '^^'^ -fa-t. ercd by an authority S^".?!* o ^ ?'»P«.^- eme court, ilistiriaybepeitn:^ lie management of te, for the purpose will ever pray. llLLYAOD, jLn. 823. al the C7n€/Jus- ler:— . •rayer of this me- mber of facts set o the Chief Jus- ip; date the 16th the fact of Mr. Jeft this country ssion of his wife's or more crediblQ nts be laid be- ish the fact, tbaft ved at the age l^e directed to th, of all his re- t of the propcr- fam Hillyard, M i>ur8ement8 on * the sums paid ^iy each partir and Uie oidev BD, an infant; fVriglu cinpow- ' Seal oftlw; man 3. be ' • ■■ MfiWPOVNDLANO. ' * Court, to take oharge of the property be- 1823. longing to Jam Hillyard, during her mino- *^ ■ , ■ ' rity, and to receive the rents, Reissuing lo ih« matiar of from the same, subject to the direction of Thomas This. the Court with respect to their appropriation. ■"•■*■ J^iiait. ll was further ordered, by consent of the parties, that the accounts between Peter JtrKie, Esq. and John Hillyard, shonid be submitted to the arbitration of Messrs. Hoyles and Crots ; and that, in the mean time, Messrs. Hoylea and Cross should lease the property at present vacant. The Owners of the Brig Lady Hamilton, appellants, and IViLLiAM Stafford Pope, respondent. Jff^ER Curiam. Before this case was ar- gued upon the appeal, I was strongly dispo- ned to think, from an attentive examination of the transcript of the proceedings of the Court below, that fhe judgment there given must be reversed. 1 was, however, happy to listen to every argument which could be adduced in support of it; and 1 have since given to those arguments all the considera- tion which tliey appear to me to deserve. I am, therefore, now prepared to deliver my opinion upon the question, with a full know- ledge of ail the circumstances connected with it. On behalf of the appellants, it has been very justly argued by Mr. Simms, that the ))lamtiff below ought only to have succeeded in his action upon one of the following grounds : — 1st. As having a speciallien upon the brie. July 9d, By lilt liw of £oglaiid, ther« cao be no lien on • ■hip in III* port to which abe bclongi. And Ihe legal, i.t. Ih« regi$teted own. tt of a ahip ii not liable lo pay for repairs made, or atorea furoitiied, under lh« aulhiiri. ty. end for tht ba- fltfit, ol auotbtr peraoo. hty as pari-owntr. 3a d7Q CASES in THE aVpBpiiS COUBT, 1803. W /' :)!! Mlir. Because the defendant below. o:^..^,rr ^^/^;^\^^^^h fn agent, had. by his conrne iXu^uioS ,%^r "^' '«»^«'^^ himself liablea8a;,nn. W. 8. PofB. .^nd the proper mode of trying this case will, therefore, be to inquire how far. under the circumstances of it, the plaintiff below can sustam himself upon anu of these grounds. ^ Upon the Jirst point I shall shortly re- inark, that it seems to be clearly settled that by the law o( England, («) th^re cannot be a lien upon the ship in the port to which she belongs. Thus Lord Mansfield, who is re- ported to have said, (b) " that a person who supplies a ship with necessaries, has not only the personal security of the master and owners, butalso the security of the spe- cific ship, afterwards admitted (c) •• that work done for a ship in England 19 sup- ^ posed to beonthe/»«r*oaa/creditofthe . employer. In foreign parts the master ••may hypothecate the sbi>.'» This princi- ple has, mdeed, been recognized in several other cases; and I have, consequently, no difficulty m pronouncing that the plaintiff below had no lien upon the vessel, for the supplies furnished to her by him. With respect to the second point, it was most satisfactorily proved, by the evidence given at the trial of the cause, that Mr. Mennett, who is the real appellant in this suit, had agreed to pay a certain sum for half of the brig, then on the stocks, after m should be completed andftted out by Mr Douglas. This was, therefore, most deci- dedly not an absolute agreement to purchasa a part of the vessel as she then was ; but la) By Ihe Civil Law it it oiherwiir. i W *o wilkwt w, Comieha^l, 3 Douf , lou * • l^m COUBT, defendant below, had, by Im coiirve iself liable as a prin- o( trying this case [uire how far, under the plaintiff below pon any of these I shall shortly re^ clearly settled that, [a) there cannot be le port to which she nsjield, who is re« ' that a person who cessaries, has not irity of the master security of the spe* idmitted (c) •« that I England iff sup* 'sonal credit of the parts the master i^" Thisprincir :ognized in several consequently, no that the plaintiff le \essel, for the ►y him. ^nd point, it was by the evidence ! cause, that Mr. appellant in this a certain sum for the stocks, qfter Jilted out by Mr. •efore, most decir nsent to purchase e then, was ; but KewrouKOLAMD. ii\ 8t W. 8. PofB. mt. Dou|« 101. tnefely an nj^rermertt to become the future 1823. piircliiisof of hnlf of her, at a stated sum, ^ ii- , ■_ * upon till' continife/irj/ of her being comple- Ownenof »h« bri^ ted ami littef! out by Mr. Doughs. IimIc- I-ad^Hamiltoic pernlenlly, then, of the provisions of the Re- gistry Act, Mr. BennetCs interest in the ves- sel could not take place until after the hap- pening of that contingency upon which it entirely depended ; and as all (d) of the arti- cles for which this action was brought, were required to put the vessel in that condition in which Mr. Bennett had agreed to become the purchaser of a proportion of her, his in- terest in the vessel, if it had depended solely upon thai a«^reement, must necessarily have commenced subsequently to the delivery of those articles ; and he could not, conse- quently, upon any pretence whatever, have been held liable for the payment of them. But the respondent contends, that a few of these articles were delivered after Mr. Ben*- nett had actually become ihe registered part* owner of the brig'; and he conceives that for these, at least, Mr. Bennett must, at all events, be responsible. According to this doctrine, then, the registered owner, of a vessel is bound to pay for everything which is furnished to her, without any regard td the circumstances under which the articles may have been supplied, and cannot even repudiate a contract entered into in relation to her by a stranger without his authority or consent. But this doctrine is certamly noft law. The title to a ship, says Lord Chief Justice Abbott {e), may furnish evidence that repait^ are made, or stores furnished, under the authority, and for the benefit, of the legal owner, as, in fact, they generally ares {d) This wu dUtioetlj adiDittod bv IMa. id •xavinm («) lo bif work M Sliippbr, p. ai^ p t f( I i lU. n 37« v^.l^X^ «»«t it doe. no more. a„rf .k . P-HT^?^. wear that ti.ey weri m./l.^"'^/^''*^' '^ »* W.8.PO,.. able. Tit:/&-[,^''" "ot bern^e^' ?'«terecJ in the name of Z T f"'*'' «"*J «•«- |mervai between T,! orde, T""^^'^'^ '" ^'^^ h tl^e seller, and the rl.l^"'" '*°''^«' &'^en »>oard. the purchaser of^hi !/ • "'^ °^ ^''^'n «« »ot to be rLponsfble for ., "** "*?« '•«'«! C/) ^as the legal ouner of ,V^'"' «'^'»«"g'i be stores were del veJed on f '"?"' ^'^^^^ the ^hat parr, there/ore of thp?"' ""^ 1"^'' ^o «nand which is founded „''''°?'*^"*''' *^^- of some of the art c es^l ^? *''^ ^^^'^^ry been registered in Ihe^i^ J''" ^"««^' ''« was sold, and re- : PU'cbaser, in ihe ••|or stores, given ^'yeryofthemon s'lip was held m •em, although be vessel when the oard of her. To respondent's de- 'pon the delivery the vessel bad "les of Messrs. «e aflbrdfl a com^ clearly proved, dered some time 'nawereintend- ' state of equip, aeration for the • agreed to pay ^t, in fact, see ?">8h this case ^e- and under 'nt which Was '"y justified in 8 not liable to ? ort'ff. 'sidered, whe- groundofhis r^i in such a ofaprincipai, undoubtedly' »ch, as 1 mjl 'wponsibility »t travelling e myself to nceive ia dem I i . NEWFOUNDLAND. > €isive upon this point. Now, Mr. Douglas informs us, that he agreed with the piaintilf for the work, telling him that he had sold half the vessel lo INIr. Bennett. That he, Mr. Douglas, was to fit her out, and that when Jit ted out, Mr. Bennett was to pay a certain feiim for the one-half share of the vessel. This, then, was the representation, upon the faith of which the respondent agreed to fur- nish the articles which Mr. Douglas was in want of; and every one must see that there IS nothing in this representation from which the respondent had a right to infer that Mr. Bennett would be liable for the payment of the articles which Mr. Douglas was con- tracting with him for. If, therefore, the res- pondent did, unforliinately for himself, en- tertain such an opinion, he, undoubtedly, acted under a great mistake, and every one must feel sorry for him. But there is no ground \yhatever, either of law or equity, for transfeiring the consequences of this mistake to Mr. Bennett, who was, to all intents and purposes, a perfect stranger to this con- tract at the period of its inception ; and al- though, during the preparafion of the arti- cles, be had some cXL^ '^'/'^ '« ^^^^^e- ^fneral and iiniversu? .^l^'l*J"'•^ 'i'/ie ne.;fhl.oup.-...s c Znp ' ""^ ^« '"J^'-e our P'y they«.,, of he St'';/'^"''^^''^^' «P^ «"« determine whether ih. J"? /^''''^ye. been <,„i„, of a vioS of!t 't."^^"* ^«^ ^*/er/.e// V. Cotter turned m,nn ?'*^^^8eof the necessary having i ''P'* ^'^e fact of ;^ell waadnj ind^^VaMl.e'r"''' '^^^'^ '^^^ t^'tied, that the Dlaintiff! Vlf "^^ P'*operly de- noyance to which some »;, ''^'^'"'8: *^«an- posed by nuisancerfTL i"^*!^» ^^"^ ex- ««>^.«irrelatirtotWr^ct^^^^^^^^^^ tigalion of damages Thjf' ^"^'^P^ '« wi- ?»en to take thfaJi,,Jo^J"/^.<>"gK bo,^.; In liin cFiarM «« «»•« Jury, in „ •««"»» •.p.>n ,|„ '••"'"'■'•""•"•nrp. «"'«' ihi-ni th«, ,1,^ •jue.lion, Whether • certain ilijuf •mourned lo « „„;, ••nee or „„|, „„^,„ *«« fo the general •foleo/circuwstan. «•« i« //je ;,/ace ^inphineU of q. *«*e; /or (!,«,, „,p, •«»'.: »it un.l„ubt,.,||y tpcome an...,„n;« »n one coiuJhioo of ■OUery, w|„c|, *«uM uoi b. 10 io RfiMB CODttti "U>y Mr. Bennett. ;';f »>ot'' Ic-al and ""s case, I ani of o^^the Cotfr/ be- initisance. 7?ow ? "'e. jury, and "0 were sworn ed th ca'ied a great tl>e defendanrs '•«/>'>' to the fie. ' f law w, ih.^t » to injure our ^T ALIENUM therefore, ap. ("s principle^ defendant has J he case of 'the face of "t before tha properly de- >t sustain h/a toting the an. « were ex- '•^^i/Tspre* 'cepf in n»i, >"gbt, bow; the parties II I MBWrOVNOLANp. the same inconvenience which would nmoiint to a nuisance where Iht're was more room and space, ought not to be ':on«idereU in that light, where the parlies are bundled and huddled together in such u way that it i^ scarctiy possible they can avoid cuusiuj; ■oine annoyance to each other. The jury retired, and soon returned a vtrdict— damages ten shillings, withcostvtp b« paid by defendant. 0r» 18-23. Skinkbr «. Tarraman. Robert E"ans, appellant, and Thomas BuLLrv, assignee of the Estate of Thomas Congdon, respondent. JiR Curiae. Two e«ceptions have been taken to the judgment in this case by the plaintiff, in error. Tiie 1st, That the judgment is grounded upon a particular sta- tute not applicable to the circumstances of the case: and the second, that the judgment is contrary to law, ir -nucU as it was given against the appellani nn violation of the lien which, as factor of the bankrupt, he had upon the goods which formed the subject matter of the action. To the former of these objec- tions, it will be a complete answer, that it does not in the least signify upon what grounds the judgment was professedly given, provided i\\e J acts stated on the record be suf- ficient to warrant it ; and 1 shall, therefore, confine my observations to the second point' which involves the question, wiiether the appellant was i\\e factor, or merely the con- fidential clerk, of the bankrupt; for if he were the fnrmpr tlioro to ««# « oU_.i _/• doubt but that the judgment belov ip erro- JhIiI IBM, Till* isifat clii, tiiiciiim bftwten « Factou and • CoNFIDtNTUL C'li'-HK, Of oilur HUflll. ID, llut Ills factor liHS ci-nain (luii«>H iiDjiiiSftl on iiiin, anil i;. fi,t>. j' ct lo ff'riain le- f(8l lithilituH r«< ■ iiltir.K frmti i|ii,||« dulJM, which Ilia cOHjiiIinlial clerk i« alutitfilicr ¥X' ••"ip' friUH. And the lien «vhich ih« law Kives lu ih« factor upon tlie S«><>il« o< hit ptiu- cipal in hia pos% ■«'^Bloll, is fuiindi-d eiiltrely upon iho conviiifration of the duiiea anri ji. ■ biliiif.i »o which he is thua f ipoacd. 370 / 1^ iy certain, that the Hnin. . • ' '''»«9na»- ^'tliout foundation if h ' ''^^^ '» ^"^'--^'y •cription of offent 'who "l^'**' ""' ^''"^ ^e- l^et us see. then ^th^t a r 'T''^ "•^«^'«'-- «raine how far h^^ -fr'""" **• ""^^ ««- 'naster's affairs. Now ev^rJ ^^'"^"* ^^ '"• «nd. therefore hS^'^'"^'" t'«e^e«e;.a/,. «- both nge^V i? ,'o\'^J--;;^«';^U a facto'r Portant distinction may ex Lf 1 1/ ''^'^. '">■ ^'ne of those distinction? ! ^'''^^" ^'^^n^- to be. that the factoiTD^l I '°"^^*""^« s^i^ «nd the servan bv n w by a com»iw,v>», ti.is distinction doL no t^r •^"^^'^ '"'^ for a servant mThave t^ '" '"""^^ ^««*^'' '' commission as a factor l*t *'''"® ^'ate of H with the character o^^^°"' "^ *^'°*^- tl.e latter maTun^ts^^^^^^ «"^ fixed salary in licuof fh' ^Y' ^^^«P' of a «»'J still con "nur^o n^f "r ^°'"'"'««'on, ses. a factor ' ^" '"^^^^^^ and purpo- >r« «ball not sea "c^h lon^^Tr ^^ ^ ""^ ^ ^^^'"'^ ^'nced that the IJa/er.W^i^''^'"^^''^ ^on- ^^-e bet.veen S rhamcteT;.''''' •''^^- tlie/ac/or'* *ei„o- ,ttA,r, 1? '^^ consists in iect to c/r«.f nn ir ' '**^t"'' «f«ou d ncff- W 5,^»»- •••«» PulF. 408. ?l7p f "?"•??' * ^«"» p. 10. *•• "^' «"•«» '« I KKNit Court *o » Ilea J8 entirely \ were not that de- •« termed a factor. Mor is, and ex- *w, nnd in what a conjittential ser- nanageinent of his p»*y servant is aa 8 not a servant, "om t\\G general; vant and a factor IS that a very im- 8t hetween them. 8 soniPtimcH said «y a commission, , or wages; hut J m many cases ; e same rate of out being cloth- ractor(A); and ^'y, accept of a lal commission^ nts and purpo- ror some other »y ; and I think ^e we are con- ssential differ^ ••s consists in ny le^al liahi^ 'ntial clerk is ►I* should neg- re he ought to [« a person in 0; in these. »P' 127, eitfld in KEWroVNDLAND. and in many other rases of a similar kind, he would Uq olilin^ed to make good any loss which iiiH princi|ml might siiNtain through his dtiuult ; uiid he is «.fien compelled to advance large sums of his own fur the pro- tectum of the property of his principal, in order to discharge himself from the respon- sibility he would incur by his omission to perform certain acts in regard to it. in con- 8i< eration, therefore, of the onus, and legal liability, so cast upon him, the law, which is always just, has furnished him with a lien upon the goods of his principal in hit pos- session, as the best security it could afford Inm for the repayment of the money it com- pels him to advance on account of his prin- ?9V\ .'" * *'°'"**' *•*■ *'«n w derived from •1'/ 'f **'','*y' »"** '8 exactly co-extensive with n(ff). Jjut a confidential clerk, entrusted with the management of his employer's altiurs, can never be under a legal liibility to advance any money of his own for tiie bene- lit of his employer. This, then, is, as 1 conceive, the «• crucial imtance " (k) by which we may distinguish the factor from the confidential clerk, viz., that the former has certain duties imposed upon him, and IS subject to certain liabiliiies resulting from those duties^ which the other is altogether txempt from. Having thus endeavoured t'> show what the true difference is between these two classes, 1 shall next proceed to inquire to which of them the appellant be- longs. And in order to determine this point, recourse must be had to the evidence given at the trial. From it we learn, that the bankrupt^ about the time of his depart- •.5?Ki^''.'* "• '•'^''"y ••«* '•" °>«y bt taken to b« eon. (A) Urd Bacoa't •• Nov oi* Organ UM," pp. 55-66; 377 1823. £vANf & BULLKT. r ^ 378 ^ ft i,i ) » , t •*»" "* TH£ SDPKEIIE COU«T, polla!!'°'?hM\r"."y;.''S«e') With the ap- .~Js "ha. h""' 't "-^'"P-. fi"df„?a : lerwarcls that he could not return to New- foundland as soon as he originally expS •vouia devolve on him in conaeonence of "•c protracted absence of theTnkroot ^'to" w""!. "' ""'' '-crease seetTe: vei to have been settled by the Darties- contfnied ,i''k;e"1he h^ ^^7'?"°"' <•« a7lrrT.SeS3r— ' rerter«55S-^' damae-P« for J« *l***»'ned a compensat on in f i BMK COURT, greed with the ap- act as clerk and year, at £36 per ikrupt, firidinff af- t return to New- riginally expected int to apprize him J, and at the same crease of salary ►nal trouble which consequence of of the bankrupt, rease seems ne- by the parties; >Iaintiflf in error y raised to £lOO ' expectation, he >ks ofthebank- and to transact im as his repre- t. Js it possible, ne to call a per- e sense in which i>e understood ? ed himself care- Jffice, could the ^mpensation in ionetl by such 3uld the appcl- r any circum- tnployment, to >c security and property? It he could not ; lion, that his ttferly without luentJy, affirm ow. NEWFOUNDLAND. Bladeston & Wife against W. & H. ThomasI J HIS was an action to recover £lOO of rent for the farm called the ** Grove." The lessees had covenanted to pay rent in lawful money of Great Britain, and had tendered payment for the last year in dollars at 5*. which were refused by the agent of the les- sors. The Court held that payment in dol- lars at that rate was not s* -'atisfaction of the lessees' covenant ; and . .at, therefore, as the tender was not a legal one, judgment must be entered for the plaintiffs. S79 1823. AuguU Ath. A tender of pty- mtot in Spaoifh doliMre,«t5«.eiob, ii not lufficieDt where the party has covenanted for payment in lawful money of Great Britain, [Se« Uany v. Gaden, ante p. 336.] Trustees of Langley against Trustees of Darrell & Campbell. Ti HIS case gave rise to a question upon the construction of the Register Act ; and the Chief Justice, in consequence, deferred judg- ment to another day. And on this morning, the llth inst.. His Honour delivered the following decree : — Upon the hearing of this case, 1 was strongly impressed with the idea, that the ZAth George 111,, c, 68. opposed an insu- perable bar to the plaintiffs' claim; but, as the transaction upon which it is founded did not appear to have been entered into with Q.ny fraudulent intention to contravene the objects of that Act, 1 was unwilling to give judgment against them until I had ascertained, by a careful examination of the Act, and of the various cases which have grown out ofit, that it was impossible for me to pursue any other course without a violent departure from those principles by AujuU 4/4. Wh*r» a con. tract has been en« l»red into for the transfer of proper- ty in a reaeel, which ia void from a non-compliane* with the proviaions ofthe registry acts, the Supreme Court cannot, un- der its powers aa a Court of equity, enforce a complin ance with the terms of auch contract, or aflfurd any re- lief to the parlio0 concerned In it. SQO lb' ^f > i i fri Trualeesof La Ms LBV V. Tfogifei of Darkkll ifc CAMPSbLL. hi CASES I» THE SUPREME COORT. t>on Of that importC statute "" ^■"^^^'•"^• «'>e early part « • ih ,-/ /i V"*'' '^*^»« •' ^n for Xr50. payable Tn L^Tf ^ ^'""'/^ liiHt yean'^and under 'is ale or'"^"*"" «^ transfer d„ K',"- - ndorsernent of provisions of the A? to whTKiT"'^"^ **> »''« referred. A< a s.Wisii ^J''^ '• ^^^ea'readv a proportion of ttr^^^^ '^^"^^ ^^^^^ P^*^ having. afterwardr^rttrteZr^i' ^"' «''e was. unfortunitrlv llZ 1 r *? ^^«' mainder of the nnrnh.J ^*'^*"*^ ^^^ re- Paid. and. al o bSth!"T"f^ ^^^ *>^e« legal title of owner^WunL^ ^^^"'''^^ ^ anqe. ^rith the forms nfJ 'l '> ^ *^«"^P''- try Acts. Und^;.!*"'*^^^^^ the Regis- the imoh^ncyVZltlrf'^^ transaction and the trus, Jes of the vSt n'"^ ^'"^^ ^ from the trustees of tL t S"^ "**** demand "pon the ba^^ce of !l7^"**'n -^ ^'^'^^^d -W-b still rlmSL^U'^airtaT^^^r^ call upon this Court to IVL '^* ^^^^ made under the circLl?-^ "? * ^^^^^ract cribed:; and the ohp^T? T' ^^'^'^ ^^ the first day ^JaaUmiyL^l"!?;^^ *"«^ or e«fectual for ob v nur^n. VJ**" *** *«1'«'' coatrMt, Of agreement for trZrl^!?!^* I'-l^ III iupi. awp orvew^sMrirm'Td; *E CODRT, well as Courts ilieir construc- e. called upon ta owing facts : In en/en 4- Lan^hv rell ^ Campbeli Hie autumn of '«?f or agreement leceived posses- there was nei- indorsement of required by the ilhavealreadv eriod they paid e-money; and vessel to sea, before the re- >ney had been ad acquired a hy a compli- 3 by the Hegis- he transaction » took place; » 00 w demand es A dividend rchase-money that is, they •cfi a contract ' herein des* Pefore, is^ ha^ ^.J^w, the WI., c. 68< 'act, or agr^e. any ship. or ' m»i|e» after hallbevalid^ atsoirer,^ ei« icb transfer^ Ml be made KEWFOUNDLANO. by bill of sale, or instrument in writing, con- tamm^r such recital as prescribed by" that clause; and where an alteration of property takes p ace in the port to which the ship be, longs, the 2Gth Geo. J II., c. 60, requires an J indorsement upon the register, the form of which IS prescribed by the 15th section of the 34lh George J J J., c. 08, which also requires such indorsement in the case of contract or agreement for sale, as well as ab- solute sale, and renders it essential to the validity of the sale, contract, or agreement i for It enacts, "that such indorsement shall from and after the Ist January, 1795, be made in the manner and form hereinafter expressed, and shall be signed by the person or persons transferring the property of the said ship or vessel, by sale, or contract, or agreement lor sale, thereof, or by some per- son legally authorized for that purpose by him, her, or them ; and a copy of such in, dorsement shall be delivered to the person or persons authorized to make registry and grant certificates of registry, otherwise such sale, or contract, or agreement for the sale thereof, shall be utterly null and void, to all intents and purposes whatsoever." Jn what- ever light, therefore, we may view this trans- action, whether as an actual sale, or only as a contract ov agreement to sell, I am bound by these two clauses, and by the Interpreta- tion given tt) them by Chief Justice Abbott, m his work on shipping (a), to declare it null and void to all intents and purpose* whatsoever; and it is almost unnecessary for me to remark, that the Courts of equity have evinced as strong an inclinatioS as the Courts of law. to support and uphold the principle and policy of the Reffistrv Ar*« ttow, then, J may ar?., is it possible for tliis' (fl) Sea Abbott on mcrcliKUt abipi, p. 44, in nolaa: 38!^ 1023. Tiusleei of LANGLBf V. Trustees of Darrbll * Campbell; d62 ll I W' u 1823. Trustrei of Langlet V. Trustees of Darrbli. & Campbell. August 16th H; A tenant cannot 4i>|Mi(e his land* htfU'a iitJc l^^^^^sL ^ >• ^^^^DHIB BR • CASIS IN THE SUPREME COUBt, shall^ni h ^*»^?^,^»"^«J'^« positively said shall not be valid or effectual, for anJ pur- pose whatsoever either in law or e'quity ? ;^ of/ lu'^T?' ^^ *''^'' '^"^ «^an it afford re Ieftotheplaintiff8,orcomplaitiant8,in this suit, who set forth in their bill an invalid sale or contract for the sale, of a vessel, admit a partial payment to them under it, »nd pray the Conn to assist them by its r2fl™ ; ^'"^ ?P^^ ^ investigate, reason .and reflect upon this question, the more satisfied rn!?. c "^ ^'"^ •raP'-ess'on respecting the merits of it was correct ; and having now 1^ wif • '® "° l""^^'' **»« smallest motive to defer giving judgment for the defendants. William Avery against Nicholas Kent. t?thi^nT • ^/^'i"^' '^"' ? ^"^ '" answer • UA P'^l?*'^^ demanrl. the defendant wished to dispute his lessor's title, but was immediately stopped by the Court. It is a pnncpU of English law, that a tenant can^ not controvert the title of his landlord, or set up one in opposition to it. There is in this case sufficientproof of the holding: and jndgm«it mast, therefore, be entered for the '$. E count, legal or equlta- jct to a tranaac- positiveiy said lal, for any pur- few; or equity f w can it afford •lairinntsjn this ' bill an invalid e, of a vessel, them under it, ist them by its ayment of the i to be due to te, reason ,and ! more satisfied respecting the I having now ouht from my mallest motive he defendants. :holas Kent. and in answer lie defendant title, but was 'ourt. It is a a tenant can- landlord, or There is in folding ; and iteredforthe MEWFOUNDLAND. £x parte, Timothy Hooan in the matter of Stabb, Preston, Prowse & Co. Insolvents. 'ER Curiam. This petition, in sub- stance, sets forth that the petitioner was in possession of certain bills of exchange, drawn at Kenews by Stabb, Preston, Prowse 4* Co. for servants' wages, which had been returned to him under protest : that in order to obtain payment of those bills he sued out a writ of attachment against certain property belonging to that firm ; that during the pendency of his action a proposition was made to him by Messrs. Brooking, Cross ^ Tasker, who had been appointed trustees to the estate of a branch of the said Jirm, which had been pre- viously declared insolvent, to pav the amount ofthe bills held by him, together with the expenses thereon; that relying upon this un- dertaking on their part he immediately dis- contmued his suit; and that the said trustees nave since, in violation of their engagement, refused to pay him the expenses incurred by the protest ofthe bills in question. The facts disclosed in this petition are generally admitted by the trustees, who con- ceive themselves, however, restrained by a JutJgment of the late Chief Justice (in which Mr. Forbes refused to allow the expenses upon protested bills for servants' wages to rank as a preferable claim) from paving the petitioner the expenses upon the bills he holds, unless he can obtain an orrf^r from this Court to aothorize them to do so. Two questions, therefore, arise upon this case. VIZ.: 1st, — Whether the trn.Hteefs arc not -* all events, bound to fulfil theirengairement with the petitioner ? and 2dly, admitting 3dS 1823. September 4th, Tfie flinctioo of Ihe Suprfine Cnu't (tiven In the poy- mcm of ilip vxpen- tea attrnilinK liio priilest of billii drawn for llie pay- niRiit o( srrvants* wagea ; whrra it appea'ail (hat • auil for tha reco- vfry of Ihe amount of »uch bills had been relinquished upon an express undertaking by the trustees lo pay th« ssme, together with the expense! iherf on. 984 CASES IN THE 8UPHEMS COURT, & Co venti. ioiol. Ui / .' f, k ! f M their engagement with him to be positively ^^rte^RlIZr, 2°^'J}S "?«« l^em, whether this Court can »» »!•• mititr of sanction the payment of the expenses upon Stabb Pres- these bills as a charge upon the estate of ton.Prowsb ^tabb, Preston, Prowse 4 Co. of the same degree as the payment of servants' wages ? Upon the first point, 1 have not the shadow of a doubt. The trustees contracted with the petitioner, in consideration of his with- f!r''".^M*'*^. ^*^*'^'*' *® pay '"m the amount ot the bills m his hands with the expenses thereon ; and if, in the formation of this con* tract, they have exceeded the scope of their regular authority as trustees, they are. upca a we -established principle of law, (a) per- sonally liable upon it. Suppose that aa executor should promise, in writing, a cre- ditor of his testator, who had commenced a suit against him, to pay the debts and costs, in consideration of the discontinuance of the action by the creditor; and that, after- wards the executor was obliged to expend the whole proceeds of the estate to satisfy judgment-creditors, without b^ing able to relain funds in his hands sufficient to dis- charge this contract; can any one believe ife would be an answer to an action upon it for the executor to say, "1 did indeed prevent you Irom pursuing your legal remedy for the recovery of your debt, and have thua ^^ enabled other creditors to acquire a claim upon the effects of my testator superior ta ^^ yours ; but in the satisfaction of those claims I have been compelled, by the ^^ rules of Jaw, to exhaust the whole estate ot my testator, and cannot, consequently , perform my contract with you?** There Ji no one. I think, who will not admit that the executor in this contract rendered him- self personally responsible for thi. ».avm. (a) Paley't Priaoipal & Ageul, 303. r sa«^£2% MJB COURT, n to be positively er this Court can le expenses upon pon the estate of Co, of the same servants' wages ? i not the shadow contracted with ion of his with- him the amount ith the expenses ition of this con-, le scope of their , they are, upon of law, (a) per- Jppose that an writing, a cre- d commenced a lebts and costs,, (continuance of nd that, after- iged to expend ?state to satisfy b^ing able to ufficient to dis< (T one believe it ion upon it for indeed prevent :al remedy for and have thus^ icquire a claim tor superior to^ tion of those Jelled, by the e whole estate consequently^ ^ou?'* There lot admit that ^ndered him- ifip nctvman* ) nkvvfoundland. , t)f this debt ; and that it is consistent with natural equity, that if a loss must arise out of this contract to one of the parties, it ought to be borne by the executor, and not by the creditor, who had been induced, upon the Undertaking of the executor, to pay the debt, to abandon those legal proceedings which must have led to the satisfaction of it. But it is impossible to distinguish, in principle, between such a case, and the one now un- der investigation ; and since the petitioner did, upon the faith of the assurance he had received from Messrs. Brooking, Cross ^ Jasker, that ihey would pay him the amount of the bills he held, with the expenses thereon, relinquish a suit which he had instituted against a concern ihen supposed to be sol- vent, J am olearly and decidedly of opinion, that those gentlemen are strictly bound by the contract they have entered into with him. It was their duly, and not his, to ascertain the extent of their authority and power as trustees ; and if they have exceeded it, any inconvenience, oriryury, resulting therefrom, ought certainly to fall upon them rather than upon him. This brings me, therefore, to the second head of inquiry, viz., whether this Court can sanction the payment of the # expenses upon those bills, as a charge upon the estate of Stabb, Preston, Prowse 6f Co. of the same degree as a payment for servants' wages ? And hore I shall take occasion to repeat the declaratioi I formerly made, of my firm intention not to disturb any of the judgments of my respected predecessor in office,— ♦• Interest reipublicce res judi- -CATAs NON rescindi." (i) if, therefore, 1 cou!d not relieve the trustees in this in- stance without departing from the line of (6) See this ptincipl. MlopUd m a masim of law bf liord CoAe, in bia Stcoqd loititntt, p. 360. 3c 385 1823. Ex-par te, Houan in III* matter of ^$TABB, Prks- TON, ProWSB &Co'i. iaiotr«a« cy. \\ 386 CAIBfl IN TUB SUPREME COURT, conduct pursued by Mr. Forbes, I should ^tP-'e;H^K relir ^n'r"'''7' *''^"»'^ with feelin^so •« «•• mttier of ^^^giet, to bear the consequences of t hit SrjBB Phbs^ responsibility which, by their own act lev which, m the least, militates against their receiving that protection from this Court to vWuch under all the circumstances of the case. I conceive they are fully entitled t 18 true, that he has decided tlfatJhe holders of any protested bills, drawn for servant? wages, shall represent the servants as far as respects i\yea,,^onnt of the bills tLmsdveT- im as regards the expenses upon sTchbilh - d tY^'^'irn ^^•''^ " i'^--t da'sf ^f'c i con^nea \'r.^^^^'«>*'». however, is evidently confined to thosfe cases where the rlWm L preferre,. by the boM.r of the bi Is a/^he sent case. Here the petitioner !md commen- ced h.s action against a concern which ^s have obtaned a. |ndginent which would haVe «nt led him to a full satisfaction of hs debt 10 the estate of a branch of the same firm »ubm.t a proposition to him, which theT «tt ^-n^^e'dt'^K^ '"''»>"Weons to tife estate entrusted to them; and viewinffthi* light, I have no hesitation In rivine the T^?'^ Ooortto apr«ceel^^g.^hW^ f7«"»' P^o"" 4- «». I do not. howeyer therefore. A. ch«8e w'iVwl^'VrfTXI: ■ji 4. •IB COITRT, ^orbes, I should with feelinsjs of luences of that r own act, ihey ves. But, hap- •n of Mr. Forbes es against therr Ti this Court to fnstances of the ly entitled. Jt hat the holders n for servants' rvants as far as ills themselves ; pon such bills, nt class of cre- 'er, is evidently ire the claim is ? bills after the s taken place; ply to the pre- r Ijad coramen- em which was ould probably ch would haVe on of his debt, s, th€ trustees the same firm , which ebey, ageous to the d viewing the 1 in the same in giving the reeding which «vhen entered ors of Stabb, fiot, however, ^te from the lich tYtt peti- nd fcyeciing, NEWFOUNDLAND. he has inserted in his account under the head oUnterest and da^na^es, as not forming a part of the expenses upon the bills, 1 here- by authorize and direct Messrs. Brookings Cross 4' Tasker to pay him the several suras he has advanced for protests and postage, amounting in the whole to £6 5*. Qd. ; and to take credit for this payment in their ac- counts, as trustees to the estate of Stabb, Preston, Frowse ^ Co, fliCHAEL M'Lean Little against John Broom, Esq., J HE following is an outline of the cir- oumstance^ connected with this action : — Upon the 9tli of May» 1822. Messrs. Broom Sf" Blaikict two of the magistrates of this district* issued an Order of Session, setting forth a presentment bif the Grand Juru of certain manure, rubbish, and other filth and putrid substances, lyin^, or deposited, in the streets, coves, lanes, and other places, in the town of St. John and its vici- nity^ AS. great public nuisances;, and calling upon the proprietors thereof to remove the same, witbia seven days from the date of such order, under penalty of forfeiture. The order also conveyed a noticje to the proprie- tors, that upon their default in removing the subject-matter of these nuisances^ the ma- gistrates would employ men and. carts to remove the same, and would take legal measures to recover any expense that might be incurred by such removal. The order -was published in the Royal Gazette on the 18th of June following ; and, after an inter* val of more than seven days, from the publi- •^(^iivu. us It,, iwc wcicHum'- Tucieu ine con- Stables, to carry it into exbcution. Accp*d- M7 1823. SeptmhvWiu 388 1823. LiTTLa V. Bruom* CASES in THE SUPREME COURT, ingly the constables, aboutthe23(J July last seize, a quantity of manure lying near the TlnclTl *" '^ <^overnment ho "se? a a distance of less than a mile from the centre itlVZV '"^ !'"\P^«--^'inghivinra« It should seem, mspired a general a?irm among the owners of the manure, the p lai^ tiff, at an early hour the following mofniW h^ eTolf' """^^^'* Z'- persons=to remov'^e Ills heap of compost, which, as it appears bv mer"'rh!l'«t n "' ^ purticuIarl/oKi'v^ Dot^'^nTr p"^ '*:f ^^^^»^«»' came^ribe K \?? ^ "' ^.^^«"««^y explained to them that the depositing of manure in such a place was unlawful, and that they should not be permitted to take it away: then ad- remTv/ it Th ^T ."^^ ^° «"°^ ^^em to l^^ f i* ^^^ defendant immediatelv placed a /^ on the heap ; and in renl v to « request from the father of the pVa^^ff dition'n?'^- * r™^"? '^' ™«°»r« "Pon con: dition of his becoming responsible for the Iff /?°«fq"ence8 of depSsiting it tLre s ffpr th"'^^''' '^*? ^'"^ t^at he would not suffer the removal of the mannre bv fhl servants of the plaintiff; andThatTf any in! n"\T"th:^*"r''lP^^^°*'« "^y thisproceed. flTitThl l'^'"^«"»' '""St be answerable iL / ' manure was, inconsequence removed, m common with that ofl^^veJ^I other persons, by the constables, to a S- bouring lot of uncultivated land L1onof„g to the Crown; and the whole was by a printed notice purporting to be an Order of ioTe'sold tr'.f ^' ''''* '^22' ^^^« cLJtl i' V^^ P^'P""® *>f defraying the charges for its .removal. At th. ii± Ic eaie there was only one very low-offermad^e ! COURT, ie2,1d July last, i lying near the ent house, at a rom the centre iling havin;>;, aa general alarm 'ure, the plain- winar morning, sons to remove 8 it appears by ilarly offenaivfo f the plaintiff f? the compost, nt came to the lained to them ire in such a It they should vay: then ad- ant. His Ex- allow them to immediately in reply to a the plaintiff, ire upon con- isible for the ting it there, be would not more by the lat if any in- this proceed- 5 ansnrerable onsequence. It of several , to a neigh- i belonging was, by ^ an Order of advertised jfraying the offer made NEWFOUNDLAND. for the manure ; and the sale was. in conae- qiience, stopped. At an early period after- wards, the Governor authorized the defend- ant lo apprize all the owners of the manure which had been seized, that it would be re- stored to them, free from any costs, if they chose to take it away from the government- fit Id on these term's. Of this offer all the owners of the manure, except the plaintiff immediately availed themselves. But the plaintiff, apparently impressed from the be- ginning with an idea that the proceedings of the defendant was illegal, rejected the pro- posal, and determined to seek redress for the injury which he conceived he had sus- tained, by an action against the defendant. At the time when these occurrences took place, there was no Chief Justice residing in the island ; but there then was, and for some time after continued to be, an officer autho- rized to issue writs, returnable in the Su- preme Court. The plaintiff, however, did not avail himself of this opportunity of com- inencmg a suit in it against the defendant but waited until the arrival of Chief Justice Jucker m April last, when he brought an action of trespass against the defendant, de boms asportatis. The trial was, however deferred, at the request of the defendant, un- til this day, when it came on before a Sne- cial Jury The pleas of the defendant were, o?.* \ne general issue, " NotGuilty ;"and 2dly, The statute of the 24th Geo II e 44, which enacts, in the 8th section ther'eof \„J""^?Vro^^" ^f *'''«"gi»t against an; Justice of the Peace for anything done in the execution of his office, unless commen- ced within six calendar months after the act committed. To the last of these pleas it was urged by ^i»im*for the plaintiff, 1st., (hat the absence 389 1023. LirrLK V. BnooM. 900 less. €Ai»i IN TMB tVPBEHM.«OVMT fro.oefer"e"dofS/Sl,;''J„P'{;:f fen'rf.n. - V^' ""•'•/"•'»">«'%. that lh« de- nt^, V.u""''' "O'ewille himself lo the be- ne« of that .tatute, beca..»e ho only acted of h , office, and not in virtue of it. ,1. *,"..••'"«"'•"» offset" was confirmed bv the te.t.mony of a great number of XS^ Md Th.%^-''? ,*""""*•• o" both ,ide.; thi'f^ «<> the Jury, the principal points of iS •' wA"/??*' T'»T«'«' » 'he foUow- mg **»«»oy*w«iW«-«"a»coDicdT£rh.i!m from bia minute, of tht triaj. •'""'»*™»»™ in ttw Jf'it!'"' """""' "-em particularly J^e«.) "'*■• ^^ ' """^ ^r SimmX^: Jtteam/uaioHo/tiegaod, no defence in paS^df:^itU'.5;;irn :'■:,:•,, !:^-'r^* corameiit thereon. ' .' Wates^ tac!. «/rxr t'he'zs;;i'a'Lt«.ra*ir ev^nta protected by the iMli, Geo,^i: c 44" Under the general i,«,e, the Jury wHJ inat /u acted nght m remmnw «A« »ia«w« * L ZT^ ""^^ cannot ind C Xm ri ^!^lu '""*• •*." «<=«<»<« of the irregnla: Sons ri^H P"rf T '" •he Court ol^sH .w':./iS''.";?r.'».'?'J' ""oae proceeding, were —a~^,. =wi.«iey nwMejiteaiitheb*B«K I ficient ground Qt the plainti/r a by the limit- ^ Geo. n, c. » that the de> Bifto the be- eonly acted, under cul , -r )fit. confirmed by er of witness- both sides; vered a long Ml points of I the follow-^ >icd Terbatim le whole case). particularly V. Bopldnt^ If in his ad' defence ia }annot take ep^ through eral issue; not; at all »,Jl.c.44? i Jury will e satisfied >^ manure* I for him X irregiila- irt of Ses^ iog^ were the ^««; MBWPOVNDLAKD. fit of tho 24th Opo. If. c. 44 to him, if they More satwaed that he acted bonA Jide as a mnfristrate. The six months having begun to run, are vM, in point of law, stopped by any subse- qnent impediment. The Act of the Session, although inform- al, seems by no means to have been tyran- nical or oppressive; and this is, nfcrhaps, one of those very casts in which the legis- lature particularly intended to protect ma- gistrates. No inference against the plaintiff is to be drawn from his not accepting the defend- ant's offer to take back his manure ; because if he believed the proceeding arbitrary and unjust, he was even entitled to praise for re- sisting it. But the acquiescence of other parlies furnishes a proof that they were content to get back their property on the terms offered ; and certainly if the Court of Sessions had proceeded against aJl these parties according to law, they might have ho.mfned for their conduct. The proceed- ing of the Court was, therefore, less penal towards them than it might have been if the Court had followed the true legal path. The Jury, after a deliberation of more than an hour, returned a verdict for the plaintiff, — damages £12. 'I It lU PON the motion oi John Broom, Esq the following rule was granted to him by Ihe Court:— * ^Jn the cause between iMTic^aeZ McLean i»«/c and JoknBrooni, Esq. : It is oi-dered, that the plamtiff, upon notice of this rule to be oiVfBn tn him i^n «k^ j-^ ^ _d. • •• «p«« tintfMsgr tlR Sdtli io9tiiDt, sfa^troaiise 1823. HlOOlt. September 9th, 3U2 1825. ^^*«»Aw 1»^ I 4 CASTS ,N , HE SUPREME COUftr, ^vliy the verdict shnnU * . MiCHAfeL M'Lpav T, &britrj:,\i^Ve"^^^^ -^-^ "^^ trial in tins ca/se ^.^^^^"dantfora ^tmms, on behalf nf ft i -^^^ ^''^^^ ^Y defendant wafnof em i^^'".!''^' '^^^ ^''« oHhe 24th Geo Jl " 'i!»^ *^ the protection If t. Because ' the* OrdtTc 'sT'* ?''^""^^« • so thoroughly illell " JHf *>^ ^e^S'ons was sanction to an act dnn. ^?^ affording any ^^ .J o an act done under the antboriiy ^Ml^t^fo^n'of'thifr! '^P^'""* ^'om the fendant vvas actint t."*^?^^' ^^^' the de! in^. -hichla'd'g^ ^rt'7j ^^e proceed- a^-t.on, under colourZ h?- i / P''^^*"^ onW.a^un,ent:!^^^^^^^'n- of his arguments; reTwi^'-'nrlf •' '? «"PPO''t (tnouo-h If Qrl«.:.* 'i .. '"^ tlie great case o( Untick v V^^ •' •" "»'"" ^o"/-/, however ahmilh;!' ^^T^^^-^^w*. The Order of Sessions ^1 7/ ^t™'^^^^ ^^^^ the from the charge o7 ,1 i^^«^' ^'"dicated it P^9-Fe; byfho;'ing"tK:;r-"do;,. principles, ft contain^H ,? ^u"^®^ ^®"^r«' <=ivil liberty, accor^ng o sFr^' V'f ''^ *« -ce lent definition of !t^(f^Tnd^;trrf (fl) " Civil liboKy is tb.t «f . . duverc- »» other tb,„ ««Jro/ /5^,"^* •jr*^- «/ '"cWy. .nd i. ];^« (and no farther) „ iS'^ee.I 'r*'*"^'"'*' ^^^ »""»" IEME COUlit ^tbe set aside, anil 5 defendant. LE against John ^uJe Nisi, which e defendant for a It was urffed by Plaintiff, that the to the protection on two pounds : of Sessions was "*y, and oppress- 'f affording any er the authority >arent from the -♦ that the de« tit the proceed- [o the present •ceof a Magis- fWacofit. ■s, and dicta of ges, in support ncipaHy, upon rrino-ton. The Q'tted that the vindicated it itrary and op. upon general fngr hostile to • Blackstone's »d by advert- rained by human lod txpedient for i"; \'}* P- 126. wnaitiQii wbiei^ Newfoundland. m% to the statute law of England, which, m more instances than one, has clothed the 1 surveyors of high- ways and streets with tnuch more extensive powers than were ne- cessary to legalize the Order of Sessions which had been issued by the magistrates of Newfoundland. It also observed, with reference to the case oiEtitickv. Carrington, that the inference deducible from that case, was in direct opposition to the first position advanced by Mr. Simms; for there, though -Lord Camden expressed himself in the strongest language upon the illegality of the ivarrant (and there could be no doubt but that all the epithets which had been applied to the Order of Sessions in Newfoundland were much more suitable to that warrant), yet his Lordship, and the Court of Common Pleas, did not decide that the defendants were deprived of the protection of the 24th Geo. 11., c. 44, on account of the illegality of the warrant; but because Lord Ualifase was not a Justice of the Peace; and 2dly, because the defendants had not complied strictly with the terms of the warrant. Now, had his Lordship been of opinion, that a warrant, of the character of the one issued by Lord Halifax, was so totally void ihat it could not afford any protection to an act done under it, even if it had been issued by a Justice of the Peace, it would have been altogether useless and unnecessary for him to labour, as he did, to prove, by so elabo^ rate and learned an argument, that a Secre- tary of State is not, in reality, invested with the powers of a Justice of the Peace. It is evident, therefore, that his Lordship thongjbt in^substenise, U nearly the sane as Sir Wm. Blachlone's: • 'trt, .iuBiiy := tho noi being restraiiked by any imw. Jr T,'"Vf'*"*'""? '" ^.greater degree to the public fod. 3d 393 1823. LiTTLB V. Bboom* 394 'I 1823. IiITTLB 9. Broov. / CASH IN THE SUPREME COURT, that that warrant would have entitled the defendants to the benefit of the 24th Geo. IJ., c. 44, if it had been issued by a majris- trate, and strictly complied with by the de- fendants : and since the Order of Sessions is not, certainly, open to greater objections, upon general principles, than Lord Halifax's warrant, the case of Entick v. Carrington Sf Others, which has been so much relied on by the plaintiff in this action, is a strong authority to show that the Order of Ses- sions was capable of affording protection to an officer acting bond fide under it. But there was one case, that of Biggs v. Mvdtfn, 2 Hen. Black. 214, which satisfied the Courf that the defendant in this action was entitled to the benefit of the 24th Gto. Jl., c. 44. There the defendant, who was lord' of a manor, entered, in company with his gamekeeper, the house of the plaintiff, and took therefrom a gun ; for the recovery of which the plaintiff brought an action of'tro- ver against him. But the Court of Common Pleas, though they admitted that even a magistrate had no authority whatever to enter the plaintiff's house, or to take away his gun, still held, that a magistrate who should do so in virtue of his office, was en- titled to notice of the action under the 24th Geo. 11.-, c. 44; and because the defendant was, in point of fact, a magistrate, the judges thought themselves at liberty, even under these circumstances, to presume that he was acting as a magistrate, and accord- ingly nonsuited the plaintiff.— By comparing that case with the present, the Court found that it furnished an answer to every argu- ment which had been urged on the part of "the plaintiff in this suit; and accordingly the .Court i&M that tue verdict could not be sus- tained upon the mere point of law. But an [E COURT, lave entitled the of the 24th Geo. ued by a maois- with by the de- rder of Sessions eater objections, 1 Lord Halifax's V. Carrington 6f much relied on on, is a strong e Order of Ses- ng protection to under it. But ^iggs V, Evelyn, I satisfied the this action was e24thGto. J J., t, who was lord npany with his lie plaintiff, and le recovery of n action of tro- )urt of Common ed that even a y whatever to 3r to take away mag^istrate who office, was en- under the 24th 3 the defendant aagistrate, the at liberty, even to presume that 3, and accord* -By comparing le Court found to every argu- on the part of iccordingly the uid not be sus- f law. But au MBWFOVNDLAND. . v application for a new trial is always regard- ed by the Courts at Westminster, with re- ference to equitable considerations; and it has been laid down in many cases that a new trial will not be granted upon a strict point of law, contrary to the equity of the cause (2 Salk. 644 & 646.) Looking, then, to the real merits of this case, the Court perceives that the plaintiff has been depri- ved of his property by a proceeding which was certainly illegal ; prevented for more than four months from bringing his cause to trial, by an application for the postpone- ment of it by the defendant, upon grounds which now appear to have been frivolous ; and that the damages which have been given to the plaintiff by the jury, do not exceed the actual value of the property which has been unlawfully taken from him. Under these circumstances, therefore, the Court considers the verdict a very equitable one ; and, consequently, feels it necessary to discharge this rule. 395 William Innott, administrator to the Es- tate of Jeremiah Hartary, against James Penderoast & James Fox, execu- tors to the Will of John M'Grath. HIS action was brought to recover the possession of a fishing-room, held by the defendants under a parol demise to their testator by the late Jeremiah Hartary. The holding, and notice to quit, being admitted by the defendants. Broom, jun., on their behalf, endeavoured to setup a ver- bal lease for twenty-one years, of which, as he stated, four veara wprp v#»f nn^v^i^^A iJut the Court held such a lease subject to the provisions of the statute of frauds ; and, 1823. Little «. Broom. September 9th] Verbal]e»§9» for • longer term ihan three yea/s, liar* tlie force and effect of leaie$ at will oa* 806 1821. CAIEI IN THE SUFSBME COURT, therefore, as there was no other defence to the action, it was, by agreement, ordered, that a writ should issue to put the plaintiff in possession on the 20th of October next. September 15th, ir partners buy land, Tor the pur<> pose of a parloer- ■hip ooncern, it forms part of the partnership proper-^ ty: and it />artoer% »hip property is in« Tested lu the par« chasb of a leal e8> tate, such estate will hi partnerthip property, though the oooveyance of it may have been made to only em of the partners. Ex parte, Epward Banks, ia the matter of George Augustus Elliott's Insolvency. Jr ER Curiam. The petition upon which the question in this case arises, was originally addressed, in the absence of the late Chief Justice, to the Judge of the Surrogate Court m St. John's; and has been referred by him, with consent of parties, to my deter* tnmation. From the evidence which has been laid before me, it appears that, in the autumn of 1819, the insolvent communica- ted to one Robert, Ollethead some commer- cial plans he had formed, and proposed that a partnership should be entered into be-, tween them ; but this proposition was not assented to by Ollerhead; and the insolvent soon after left this country for England, where he obtained, upon his own credit,* goods to a considerable amount, which he forwarded to Newfoundland in the early part of the year 1820, with a letter to Oller^ head, requesting him to take charge of them s and adding, that if he would do so as oar/- wcr, he, the insolvent, would be better pleased. Under the authority of this letter, Ollerhead took possession of the goods ; hired a store to deposit them in ; and, from thatperiod, he and the insolvent, without entering into any agreement respecting the terms of their partnership, continued to act, and carry on business, as partners in trade, under the firm of fa^. A. Mliott 4r Co., until January, 1821 ; when it was agreed, that the partnersbip a^ 2 COURT, ;her defence to nent, ordered, ut the plaintiff October next. in the matter Elliott's m upon which was originally the late Chief irrogate Court I referred by , to my deter* ce which has irs that, in the t communica- ome commer* proposed that ered into be^^ ition was not the insolvent for England, own credit, int, which he in the early Jtter to Oiler- arge of them 5 io so as part- better pleased. ter, Ollerhead hired a store batperiod, he ring into any pms of their and carry on nderthe firm nuary, 1821 ; ! partnership NEWFOUNDLAND. ihonld be dissolved ; that Ollerhead should be paid £211 Os. Ad., as the balance due to him upon the statement of ihe account be- tween the parties, together with £100 as a remuneration for his services during the existence of the partnership ; that a notice of the dissolution of the partnership should be inserted in the newspapers; and that the msolvent should procure some friend to guarantee Ollerhead from any liability for the debts of the firm. It seems, therefore, quite clear, that a partnership, as to tJiird persons, did, in fact, subsist between these parties for aboat six months ; but how far Ollerhead was entitled to a participation of profits ; and whether he ever had any vest- ed interest in the partnership property (17Vesey, 404) are questions which it is by no means easy to decide upon the evi- dence which has been adduced in this case. It IS, 1 think, even open to some doubt, whether a partnership, inter se, did ever ex- ist ; and, consequently, whether Ollerhead could If he had been disposed to insist upon his full rights, have supported a claim agamst Elliott for anything beyond a com- pensation in the nature of wages, upon the principle of & quantum meruit, tor his labour and trouble. (Peacock v. Peacoc/c, 2 Camp. 45.) But without dwelling farther, at pre- sent, upon these points, i will now state, from the evidence, some other facts more closely connected with the question under consideration Before the insolvent went 10 t!.ngland, he had a conversation with Mr JJoyles, the agent of Mr, Newman, respect- ing some property belonging to the latter gentleman, which the insolvent was desirous K«V.VI""° "»"'"« "^"/^'Hg-leaKe ; and whilst he was m England he had some communi- cation with Mr. Newmat Z97 1023. Ex parte. Banks. in tliK matter of Elliott's ia- aulv«ucy. Upon ibject 398 CASES IN THE SUPnEME COURT, h '■'■ <;. .: T823. Ex-parle, Banks, in tile matier of Elliott's in- folvencjr. and lie also purchased some materials for building, which Mere sent out by him to St. John's. He did not, however, make , any agreement with Mr. Newman; but upon his return to Newfoundland, and subse- quently to the commencement of his con- nection with Ollerhead, he renewed bis ne gotiations with Mr. Hoyles, and shortly after obtained from him a lease of the premises in his own name, without any consultation with Ollerhead as to the terms and conditions of the bargain. The building materials sent out from England, were then employed in constructing a house and stores upon the demised ground ; and a large proportion of the goods purchased by the insolvent, on his own credit, anterior to the formation of his partnership with Ollerhead, were trans- ferred to Mr. Rough, the builder, in part- payment of his account. Some of the part- nership property was also,, it is said, ex- pended upon the buildings; and after the dissolution of the partnership, the insolvent paid many hundred pounds towards their completion. With the interest thus acqui- red in the premises, the insolvent appears to have considered himself solely and ex- clusively entitled to the term ; and accord- ingly mortgaged it, in July, 1821, to the petitioner, as a security for the pay- ment of a large debt, at a time when the petitioner and a Mr. Graham were almost the only creditors of the insolvent,, and un- der circumstances which induced a belief, on the part of the insolvent, that his debt to Graham had been liquidated. There is, therefore, no room to question the h&najidet of the transaction ; nor do I find that an at- tempt has been made, in any stage of the proceedings, to impeach it on the ground of di fraudulent preference. But Elliott havings COURT, materials for lilt by him to wever, make lan; bat upon and subse- it of his con- lewed his ne 1 shortly after e premises in mltationwith conditions of aterials sent employed in es upon the sroportion of insolvent, on formation of were trans- der, in part- 5 of the part- is said, ex- ind after the he insolvent owards their t thus acqui- ent appears lely and ex- and accord- 1821, to the. r the pay- ne when the were almost at,, and un- ed a belief, bat his debt y There is, le bonajidei that an at- stage of the e ground of Holt having NEWFOUNDLAND. some time afterwards become insolvent, the trustees and pjeneral creditors of his estate dispute che validity of the mortgage to the petitioner; because they say the lease itself was the partnership property of EtlioU ^ Ollerhead ; and that no assignment of his interest in it was ever made by Ollerhead to Elliott, so as to enable the latter to dispose of it without the concurrence of the former. J shall, therefore, examine this subject under the three following heads : — 1st, I shall state the arguments both for and against the position, ihat the lease was partnership property. 2dly, 1 shall explain the reasons upon which 1 conceive there was a sufficient as- signment to Elliott of Ollerhead's interest in the lease, if we were even to allow that he once had an equitable interest in it. 3dly, I shall show that the mortgage is, at all events, good, as against the separate creditors of Elliott, whatever objection it may be open to as respects the rights of the joint creditors of Elliott ^^ Ollerhead. In the first place, then, it is, ] apprehend, perfectly settled, that where partners buy land for the purpose of a partnership concern. It IS part of i\\e partnership property (Thorn- ton V. Dixon, 3 Bro. 199); and that if the partnership property is invested in the pur- chase of real estates, the property is not se- parate, because the conveyance is made only to one partner'-(Smith v. Smith, 5 Ves. 189). if, therefore, it had appeared from the evi- dence, that this lease was taken for the pur- pose of a partnership concern ; or that the buildings had been solely erected with part- nership property, I should have no hesita- tion m declaring the lease to have been partnership property, notwithstanding it was inade to Elliott alone. But under the real 3dQ 1823. Ex'parte Banks. ill llie roaiitr of Klliott's in« solveno). 400 CASES IN THE SUPREME COURt, i iJ 1023. Ex^parte Banks, in the matter of JiLLIOTT'i in. lolveticj. facts of this case, can any one feel satisfied that tliis lease was originally taken for a partnership concern with OUerhead; or that the buihlings were erected principally with partnership property? Before the rom- mencement of his connection with OUerhead, Elliott enters into a treaty with Mr. Hoyle* for a lease of this property; and concludes his bargain during the existence of the part- nership, without once consulting his partner upon the propriety of the proceeding, or explaining to him the views with which he had entered into it. Surety, if Elliott had intended to purchase this property on ac- count of OUerhead and himself, he would naturally have advised with his partner up- on the subject of the purchase; and it is still more probable that if OUerhead had considered himself concerned in the pur- chase, he would not have remained perfectly passive and inactive whilst the negotiation for it was in progress. J t was a matter of too great magnitude to be regarded by him with indifference, if he had supposed himself to be in any way a party to it. From the conduct, therefore, of both Elliott and O/- lerhead an .'nference may be drawn, that the lease was not taken by Elliott for the pur- pose of a partnership concern. Let us see, then, whether the buildings became partner- ship property in consequence of their being- constructed out of the partnership fund. Now, it appears, that a large quantity of building materials were sent out by Elliott from England, together with a number of other goods procured by him upon his indi- vidual credit before any partnership was formed between him and OUerhead ; and it is certain that OUerhead was^not liable for the debts thus contracted by Elliott (Saviile V, Robertson, 4 T, R. 724.) But it ia pro- \ i COURt, I feel satiBfied ' taken for a head; or that ncipally with re the corn- ilh Oiler head f h Mr. Hoyles id concludes e of the part- ig his partner oceeding, or nth which he Elliott had ierty on ac- f, he would 3 partner up- e; and it is J Her head had in the pur- ined perfectly te negotiation I a matter of rded by him posed himself From the Holt and Ol- awn, that the for the pur- Let us see^ ::ame partnef- 3f their being ership fund. i quantity of It by Elliott a number of pon his indi- tnership was head; and it V not liable for lllioti (S)aville | But it is pro- NEWFOUNDLAND, ved in evidence, that those very materials ^vere employed m erecting these buildings, and that the principal portion of those goods was transferred by Elliott to the builder, ia part-satisfaction of bia demand upon him ; and it is also proved that a very large sum of money was paid by Elliott, on account of those buildings, after the dissolution of the partnership. 1 am, therefore, strongly inclined to think that the buildings must be deemed, ad initio, the separate estate of Elliott ; and that the effect of the appropri- ation of a small portion of the partnership fund to this purpose, would merely be to Fender Elliott a debtor to the firm for the money so advanced, and not to convert the buildings into partnership property. If, in- deed, this question had arisen between the joint creditors of the firm, and the separate creditors of Elliott, it would have borne some resemblance to the case of Hayes Sf G^/^»m'* insolvency; but 1 cannot discover that that case has any bearing whatever upon the present controversy ; nor do 1 conceive myself called upon to AeciAe pontively, that these buildings could not, at any time, be considered partnership property ; because I am convinced that if Ollerhead ever had an interest in them, it ceased upon the dissolu^ tion of the partnership. Against this posi- tion it may be urged, that a mere dissolution of partnership, without any assignment to the remaining partner, will not convert joint kito separate property (ex parte Williams, 1 1 Ves. 7) ; and that we have been expressly told by Ollerhead, that there was no assign- ment upon the dissolution of his partnership with Elliott. But if we look for a moment at the terms upon which the partnership was dissolved, we shall perceive that Oiler" head must be understood to mean a written 401 1823. Ex parte, Banks in tlie matter of Elliott's in- ■olTenojr. 402 CASES IN THE SUPREME COURT, I 'S m ■ 1823. assignment; for it cannot be imagined that ^ ^>" V ■^. ' Elliott would consent to pay Ollerhead tlie ^n'^hlf'm.tS 'valance of, his account— to remunerate him Elliott" ia. *or his services—and to guarantee him ■olTency against any liability for the debts of the firm, — if it had not been the intention of both parties that the partnership property should thenceforward vest solely in EUioti, In fact, these acts did, in substance, amount to an assignment, though a formal assign- ment might not have been made; and since it is laid down, generally, that it is not ne- cessary that the transfer should be by an instrument in yiv\im% (^Montague on Partner' ship, p. 101), there is an end to any objection founded upon the irregularity of the assign- ment ; and with reference to what has been alleged against the sufficiency of the mea- sures taken for dSnolving the partnership. 1 shall content myself with observing, that the agreement to dissolve, and the notice of dissolution published in consequence there- of, did effectually destroy any partnership, ^ tnfcr *e, if it ever existed ; although it would Bot have protected Ollerhead from any fu- ture dealings between Elliott and an old customer of the firm, who had not notice of its dissolution ; but from this liability he liad taken care to guard himself by the guarantee of Mr. Preston.^V pon an atten- tive consideration, then, of all the circum- stances attending the dissolution of this partnership, 1 think it highly probable that, if the lease in question had been ostensibly and indubitably taken for a partnership concern, the buildings erected exclusively Mrith partnership property, and the convey- ance made to Ollerhead as well as to Elliott, a Court of Equity would, after , „ „s.,.,v.i«i,.vi4 \jt luc iiriu, uave com- pelled Ollerhead to convey his interest i E COURT, e imagined that ly OUerhead tlie remunerate him guarantee him le debts of the the intention of ership property olely in Ellioii. [)stance, amount formal assign- lade; and since lai^ it is not ne« lould be by an gue on Partner' o any objection y of the assign- » what has been y of the niea- he partnership, observing, that id the notice of lequence there- ny partnership, though it would ' from any fa- ott and an old d not notice of his liability he himself by the Upon an atten- all the circum • Jution of this probable that, teen ostensibly a partnership ed exclusively d the convey- \ well as to would, after Qj, have com- his interest .f.Sj n NEWFOUNDLAND. in the lease to Elliott, in conformity to the rule established in equity, that what- ever has been agreed to be done shall be considered as done. But in the present in- stance there is no occasion to resort to this principle; for as OUerhead ne\ei' had a legal title to the lease, but only (if any) an ctjuit' able one, his interest in it was always liable to be divested by any circumstance which would defeat that equity, agreeably to the maxim, "Nihil tam conveniens est NATURALI GEQUITATI, QUAM UNUMQUODQUE niSSOLVI EO LIGAMINE QUO LIOATUM EST." There was, therefore, not the slightest ne- cessity for a written conveyance, or assign- ment, of Ollerhead's interests in these build- ings to Elliott ; since it would naturally pass from the former to the latter whenever those equitable considerations upon which it was * founded ceased to operate. In labouring, however, to establish, by legal argument, that the lease always was the separate properiy o{ Elliott ; or that, at all events, it became so upon the dissolution of his connection with OUerhead, I have almost been fencing with shadows; for if the lease was not the separate property of Elliott, what interest have the trustees and creditors of his separate estate in it ? To this hour OUerhead has not been declared insolvent; nor is it even contended that the firm was insolvent at the period when he retired from it. The terms of the dissolution were, that Elliott should have the partner- ship property, and that he should be re- sponsible for the partnership debts; and thus the joint property was converted into the separate property, and the joint debts into the separate debts, of Elliott. Jn point oi fact, iheFefore, there are not two classes of creditors, joint and separate, between 403 1023. Ex'parte Banks* in tha maUtr of Elliott's ia. ■olvoucy. 404 m ! t 1823. Ex'^pttrte Banks. in ih« naitar of Elliott's io- •olvMojr. CASES IN THE SUPREME COURT, vrhora the question of joint or separate pro- perty can be raised; but ail the creditors are creditors ejnstfem c^etieris, viz., tiie sepa- rate creditors of MlUivlt ; and by proving their debts under his insolvency, they have virtually acknowledged themselves to be so. oince, then, the petitioner, as one of the se- parate creditors of Elliott, did fairly obtain a mortgage from Elliott, as a security for a subsisting debt, 1 do not see how this transaction can be impeached by the other separate creditors of Elliott. They may re- gret that they did not act with the same pru- dence that he did, but they cannot prevent liim from reaping the benefit of it, •' vioi- LANTI^US, NON DORMIENTIBUS JURA 8UBVE- NiUNT." Under every view, therefore, of • case, 1 am of opinion, that the mortgage 18 valid both in law and equity ; and as the assignment of the lease has become absolute by the non-performance of conditions on the part of the mortgagor, the only interest the tnistees can claim in the lease is an equity of redemption. The Court will, according- ly, place the trustees in precisely the same situation in which the mortgagor would now stand If there had been no insolvency ; and does, therefore, order and decree that the trustees shall, forthwith, pay to the petition- er the full amount of his debt, or otherwise permit him to eater upon, and take posses- won of, the mortgaged premises. E COURT, )r separate pro- I the creditors viz., the scpa- ind by proving ncy, they have (selves to be so. 3 one of the se- d fairly obtain 8 a security for i see how this I by the other They may re- h the same prii- annot prevent of It, ♦* VIGI- rS JURASUBVEo , therefore, of t the mortgage y; and as the come absolute iditions on the ly interest the '■ is an equity ill, according- »ely the same or would novir olvency ; and ecree that the ) the petition- er otherwise 1 take posses- NEWFOUNDLAND. William Henry Fry appellant, and Benjamin Reigles respondent. In affirming the judgment of the Surrogate Court m this case, the Chic/ Justice said:— That where a judgment has been given in a Court below, founded upon the verdict of d Jury, this Court will not inquire into the merits of the case ; receive any statement of facts contradictory of the evidence ; nor re- verse the judgment, except for error inpoinl of law, apparent upon the face of the proceed- ings. Estate of the late Rev. John Leigh. U PON a representation from Thomas H. Brooking, administrator, ad coil, bona, of the late Rev. John Z«>'A, deceased, that he had been applied to by two servants of the said deceased for their wages ; and that some of the property of the said deceased which had come to his possession, consisted of arti- cles liable to deterioration if kept for any length of time ; it is ordered that the said ad- ministrator do pay to George Garratt the sum of £18, and to John Maddock £2 5s., being the amount of wages respectively due to them. And, also, that the said administrator be authonzed to sell and dispose of,bv public auction, such parts of the said property as may come under the description of ^owa ptrttura* 40a The Supreme CoHrl will nnl re« verse the juin<'nt o^aniiifenurCoiirt, founded upoD the verdict of a Jury, except for error of law apparent vpon the face of the pro. tteUingt —[See 6ih G»o. IV., «. 07, e. 14.] September V^*k, Order to an ad. Diimsirator.ad col- ligendum bona de^ fundi, 10 pay iha wages due lo llie servants of the dr« ceased, and io i)is« pose of, by publie sale, such part ot* the goods of the deceased as were bona peritura. I'M' M • \ 4m 1823. October ath. Upon the ttiif . •reMioo.onoath, of • J«'«'(?'i>©nt-oredN •or, thai tb« party •jrain.t whom the J"dt>ment was gj. v*"", had coodg and fffptts in the hands of a ihtrd person, that per- son rs diroclfd. I>y order of Court, to •ccouni for (he a|w |»f«l'riation of any I'loperly which •"••y h»ve come lo '"s pi'ssession be^ loiii-ing tu the judgnjbnt-deblor. CASES IN THE SUPREME COURT, Order Of Court. this Courf on Th.l , 'T""^^ *" «"*^nd '« answer such n„LZ^^' '^^ ^/'» »'°«t««t. to the%opX of tlfe s^li' vT '"^' ^^'^«-' -f BytheCou?;:'^'^""^*^"^^^^^^^ James Blaikie, C. S, a October Gth. Order upon ibe next of kin lo show eaiise against the graining of adnii. "isirnrion, cum tcs% t'lmcnlo aniicKo, lo •he sole legatee. T IS ordered that notice he eiven to M Ann Skellon, who isstafpH 11 1 fi ^'''^• kin to John mitditchut **i r -^'-^ "^^^ ^^ island of Newfoundlf; 1^^ ^'^ ^T''^'' '» the her to showTaS;:? tanylhTc^^^^^^^^^ proved in this Ponrf ? ' 5''°"'^ "«' be James Blaikie, C. ^y. c. IVa ii iV^k,., :»IB COURT, Jrf. aflirlavit of mi- •at George liar- 3titionersknow- of goods, chat- o Thomas Har- oner obtained a 'e 29th u!t. for time when such •dered that the red to attend in 0th instant, to f be put to him »nd disposal of nas Harvey. IK IE, a s, c. NEWFOUNDLAND. 407 Nicholas Cbqak against Peter Brown. 1823. I >f this case the Court decided, that the ^'^^obtrQih. defendant was not liable to pay the pro- Disputed «e ceeds of the articles sold by defendant, as ••oiinis beiv,«..,i agent to the plaintiff, to James Fox of Har- n»"'*« 'efTre.i to hour Grace; but directed that the accounts ^^ Cle,kot.h« between the parties should be examined by the clerk of the Court, whose report thereon should decide whether any balance was due lo the plaintiff; and who should, also, tax the costs of the suit, which were, at all events, to be borne by the defendant ; the Court considering that this action was, in principle, an action for an account, and that the defendant was liable to the costs of it tor his neglect in not rendering an account (5 Vows Rep. 127.) Petition and Order thereon. riven to Mrs. Je the next of ^'•inity. in the sed, requiring n. vvhy a cer- ingtobethe 'bould not be Iministration > to Charles zabeth Ans^ e said will. To His Honour Richard Alex. Tucker, Esq. Chief Justice of JSeufowtdland, ^c. ^c. ^c. The Petition of Goss, Butler^ Goss, of St. John's, Newfoundland, merchants, HUMBLY SHOWETH I That your Honour's petitioners, in the month of November, 1820, became the mortgagors of a plantation, the property of John mihams, situate at Petty Harbour under a mortgage-deed duly executed by the said ,/oA« Wilhams, insecurity for a debt dne by him to the petitioners in the sum c,f ±250; which sura the said John IVilUams hy covenant contained in the said deed' agreed to pay to petitioners by annual inl ■>;aB'i''?S?(W'' MnABfifll 408 1823. Petition it Order tht-rtoii. October 9th. October 2G//i. CASES IN THE SUPREME COURT, stalments of £23 each succeeding year until the saul rJebt should be dischar".ed^ ' *'' thJff i''''**'^ 1^!.'' '^""y of September lasf, »'e full sum of £75. for three years instal- ^um of £,f i '""^T' ^^"k P-'d' whereas Ihe sum or £15 9s. 9d. only has been paid by the said John Williams, xvlw still delavs and refuses to fulfil the conditions of tlfesa"d "jortgage-deed ; petitioners, therefore hum- Wy pray that your Honour will be p eS to grant a ru\e that the said John miliaml may appear in this Honourable wt To show cause why the said mortgage shall not bQ foreclosed for the indemnification of pe- titioners under the said deed; and as in duty ,bound petitioners will ever pray, &c! For Petitioners, i j» ^. *- E COURT, Out of these ved them have salvage of one- lis will le^ve a ers aad under- hire of a boat, o to the wreck, er's protest, &c. vere on freight, he owners have efor. tnarkable fact, ' wages in the ler been settled y any decision •fLaw. Chief llcnt work on g the ordinan- tries upon this 1 been able to sh Court upon has made no is Court mu3t, ciples, in order »f the seamen itances of the ider its consi^ «n established ther of wages; statement of been earned ; of the gene-, facts of the tied either to wages. On SEWFOUNDLAND; 419 ing principle regard to the to make the payment thereof to depend upon the swcess^ 1823 Jul termination of the voyage; and in con- ^ , - . _ * formity to this principle, (it seems to be the Can of th. Bri. opmionofour ablest Judges, and best wri- Atalanta. ters upon maritime law, that the seamen ought to contribute, out of their wages, to the salvage upon recapture. {Abbott, 466 & 467.) The same principle is equally appli* cable where, as in the present instance, a part of the cargo has been saved, after mpwreck, by strangers, without any co- opera on on the part of the mariners, who bad been previously compelled to abandon the vessel ; and the rule deducible from the two principles already mentioned, is, that the claim of the seamen to wages must ever be (where there is no fault on their side) in proportion to the net amount of the freight earned. As, therefore, the net amount of the freight upon the goods saved IS to the whole amount of freight which would have been earned by the ves- sel had she reached her port of destination m safety; so is the amount of wages to Which the seamen are now entitled, to the whole amount which would have become due *o them m that event: andtheCWr^ accordingly, directs that a payment of wages should be made to tbenj agreeably to this proporhon, - j :i ■^Ijl^'lll »pl(l I 414 .; ^ !i' 18123. if (member lOlh CASES ra THE SUPREME COURT^ Brjiba VT & Sheppard c6'mp*tSnant8, Trustees of Le Messuriek's Estate respondents. Held, firit. that the preference gi- ven by the 49tb Geo. IIL, 0. 27, •. 7, to the creditor whose debts were contracted within two years prece- diog the declaia< tion of insolvency, h, like the prefer> ence conferred on the creditor of the current season, confined to debts contracted for sup' plie$ furnished for the prosecution of the fitheries. And second, that where ■ person carries on business to a great extent as •.general merchant, and is, at the same time, directly concerned in the prosecution of the fisheries, bis property and ef. lects, in the event of his insolvency, will not become /t< able to the law of wrrent tupply. «n<. 1^? ^^*"^,^®^'^ «^^^f»* arguments upon this case, and taken time to consider ihe important points which grew out of it, ine CAtef Justice no\f delivered the following -lJ?/*'T® ^'^^ raised two questions so 1«? V"u^'^?'°^ '^^^« commercial intc rests of the colony, and, at the same titie, ac- comp^ied with circumstances ofsuchpe- n«Wnl '**^'- J' ^''.^* ^^*^ ^ '«°&' ««d even pamful consideration of them, 1 am now 3« ^i'^'*u^'^' * j"^^™^»t "Po° these points without having been able to banish J^AoZ/y from my mind all the donbts whick have presented themselves in the course of ?iJ' T.uuTT'- *'^'* ^^^ sake of perspici^ "y, 1 shall first give a siiccinct outline of the principal circumstances which occasioned tj^^TV'^'^-^ ''*^" afterwards distinct^ ly state the two important questions which have grown out of those circumstances ; and Ihff ' ,'^i^y. explain the grounds upon Vfbich my decision on them is founded; in as clear and intelligible a manner, as 1 can iM-om the facts which are admitted on both sides, it appears, that the insolvent car- ned on trade to a very considerable extent as a general merc/iant, in St. John's ; and that he also conducted a Jishert/, upon a pretty extensive scale, at Burin. In the K!h"''°" V^^^^f /r ^^J^^'ts, he con- tracted a number of debts ; and at the pe- mfo iu insolvency which took place in 1819, there was one class of rrpHif^a »,Uq had demands upon his estate as sma'nts, 'iCj,^' , Ml COURT, ■\"'t" ). ''I *•■ r- jompiainaiita^ lEU's Estate reral argnracnfs ime to consider grew out of it, •ed the following '0 questions so tmmercial inte« e same tine, ac- ces of such pe- long, and even em, 1 am now lent upon tiiese able to banish doubts whick the course (rf' ke of perspicu>- rt outline of the ch occasioned wards distincln lestions which mstances ; and grounds upon is founded, ill mer as I can. admitted on J insolvent car- lerable extent, John's ; and ^t^nh upon a •irin. In the ?cts, he con- nd at the pe- took place m as servants, NKWFOUNDLANDr ' ;. » for wages: artother class who, supposing that the law relating to - current supplies" IS appl.ctbje to such a case as this, might Ciairn as snppliera for the current season! a ilnril class whose credits were given within two years before the declaration of insolven- <^y : and the complainants in this, suit, with >vhom the insolvent had contracted his debt several years before any of those comprised m the foregoing classes. Under a liability to claims of these four descriptions, the es- late ot the insolvent was transferred td trus, tees; who out of the proceeds thereof, have discharged the whole amount of the servants' ^yages. and have also paid a dividend of five shillings in the pound upon all the debts in- curredmtlie years 1818 and 1819, without hitherto making any distinction in favour of I the airrent supplier (a); but yet refuse to perniit the complainants to participate in their ha.id8 funds more than sufficient to W lli^''"' ^^"^.'^ f: The questions,: there, fore, that arise out of these facts, are. whether or not the persons who have become ere- the 49th.Geo. Jll. c. 27, s.7. to be paid 2a*. n the pound, before the creditoirs of an earn lier date can claim flwi^^ dividend ?^And 2dly. whether or not that priority in orde^ of payment, which by the same section. is conferred upon the current supplier, extends to any dass of the creditors of a person largely engaged in general trade.: and at the establishment? This latter >pointJ»as7nS^ (o) There 8«(Bm« to bate'' btettfi«BMrlwMrf»J*wA- ,al 4U 1823. filtSHAUT 4e SllEPPAltO ,& , ■' Trustees of Lb Messuribr's instate. . ^ r 1 •• ii 410 1823 BlleHAUT( Shbppard Trui(e«t of Lb AfESSUniER's. £atale. f.iff CASES IN THE SUPREME C0t7ftT> indeed, been absolutely mooted hy the paf* ties to the present suit ; but from the ac- counts laid before me, I perceive it has been m some measure reserved by the trustees as a legal problem which has not yet been solved : and as the determination of it is es- sentially necessary to the settlement of this estate, 1 have been induced to examine it with a good deal of attention, and am now, probably, as well prepared to deliver an opi- nion upon it as I shall ever be. It is, there- fore, I think, proper that 1 should seize this opportunity of declaring my senliments upon It ; and 1 shall accordingly do so, after ha- vmg delivered them upon the former ques- tion, "which constitutes, as 1 have already observed, the more immediate subject ofthe present suit. Before Mr. Forbes came to this island, it had been uniformly holden by the Courts hf re, that the expression •• creditor for sup- plies, ' which is used in the 49th of his late Majesty, was intended merely as a '^person'* arum designatio," or a description of the persons who were to be entitled to a prefer- ence undpr that act ; and that, consequent- ly, a " creditor for supplies" had a right to a priority of payment of the «;Atf/c amount of his account for the "current season," (which word "season" was then understood to mean the same as 3^mr,) although it might contain, in addition to some things necessa- ry to the fishery, a still greater number of articles in no respect connected therewith. Koon after bis arrisral, however, this question was brought before him, by an appeal from the judgment of one of the Surrogates, in a case which arose oat of the insolvency of Messrs. Crawford ^ Co. ; and he the»e deci- ded, in opposition to a loner series nf nre^A. dents, by Which the opinionof the Surrogate IE COtJttT» oted by the paf* tiut from the ac- ceive it has been ^ the trustees as IS not yet been lation of it ises- ettlement of this 1 to examine it ii» and am now^ 3 deliver an oj)i- >e* It is, there- lould seize this sentiments upon do so, after ha- ll e former ques^ 1 have already te subject ofthe > this island, it by the Courts reditor for sup- 49th of his late y as a *' person* ription of the ed to a prefer- it, consequent- had a right to hole amount of eason," (which [inderstood to )ugh it might hings necessa- er number of ed therewith. ', this question a appeal from irrogates, in a insolvency of be tbei e deci* ifies of Drece- tbe Surrogate NEWFOUNDLAND. I was supported, that the word "supplies'* must be contined to such articles as are commonly required in the Fisheries; and that the expression " current season " sig- nifies only that part ofthe year in which the hshery can be prosecuted. In shorty he construed this passage in the Act— "Every person who shall be a creditor for supplies furnished in the current season, shall be paid twenty shillings in the pound ; ** exactly as If It had been thus expressed :~Every per- son who shall be a creditor for supplies, shall be paid twenty shillings in the pound upon the amount of supplies actually furnished by him for the fishery within that portion of the current year in which it can he carried on Jn his judgment wpon that case, he takes a wide and comprehensive view of the eaxly cona.iion of this country, and ofthe peculiar usages and customs which had grown out of It ; and demonstrates, by a train of the most lucid and convincing arguments, that the provisions in the 49th ofthe late Kinir relative to the distribution of the effects hi insolvents, are remedial of the fnconvenien- ces resulting from customs no longer adapt- ed to the existing state of things ; and tha^ It ought, consequently, to be construed \\i berally, and in such a way as to repress th^ Jiischief, and advance the remedy.— Satis- fied, therefore, that it is impossible for me to place this matter in a clearer light than has already been done by him, 1 shall refer to his arguments in the case of Crawford's insolvency, as if they had been absolutely in- corporated m this judgment ; and shall con« tent myself with offering such additional o&i sermttens upon the design and object of the 7th section ofthe 49th Geo. IIJ., c. 27, m will, 1 trust, justify the construction J am. now auout to pnt upon it ~ ^7 1823. BaiuAOT SHEPPAR0 «Bd '''' Trqilcea of Lt MBaSVRIBB'9 Ealatt. '' 4kl 1823. Brbhaut & Shbpparo and TniitMg of Lk IIkssuribr's CASE! IN THE SUPREME COURT, When a branch of producliFe labour is to be fostered, which requires a certain share orcat)itaI, aiid a particular sort of skill, and when the person who possesses the art and skill necessary for the successful cultivation of It, is almost always without money suffi- cient to carry it on, it is obviously a wise measure to give to men of capital a lien up- on the properly to be obtained by the em- ployment of a part of that capital in such an undertaking, as an inducement to them to advance it in a concern, where the party conducting it has no other kind of security to offer them. In such a state of things a lien upon the produce of the labour, and a P"?"(y of payment in cases where debts of a diflerent nature have been incurred, are the trOe parents of credit; and this was precisely the condition of the infantile establishments in this colony. It was, therefore, natural that such a lien, and such a preference with respect to payment, should rapidly grow into a custom (i) ; and it was also wise and proper for -the Courts to sanction and favour such a custom as far as possible. But it is ^uite evident, that the same custom which IS thus capable / creating and supporting credit in one stateof society, will undermine, shake, and destroy it in another. Thus it may be advanced, as Jan axiom obvious to the understanding of every commercial man, that mercantile transactions c»uld not pos- ^ sibly be carried on upon a forg-e scale if such a custom were to be extended to them ; be- t cause as the return upon these transactions w often vQvy slow and distant, they demand (*; It ii worthy of remark, that the sopptier'a lien opoo Ibe produe. of a fiabiog.royaga ttiil r«au aolin ly upon cmUvrn, and has nef»r bam dibar diraetry or iodi. wctlj rtflogoized bj any part of the kz scripta of iba il£ COURT, liEWFOU^DLANU. 410 :tive labour is to a certain bhare lort of 8kjll, and sses the art and issful cultivation lit money suffi- ^bviously a wise ipital a lien upr led by the emt ipitdl in such an ent to them to 'here the party kind of security itate of things a e labour, and a where debts of ncurred, are the is Was precisely establishments refore, natural •reference with rapidly grow also wise and ion and favour ble. But it is custom which nd supporting ill undermine, her. Thus it m obvious to amercial man, mid not pos* re scale if such to them; be- B transactions they demand h« sopplier't lien •till TMit eolinljr r directly or iadi* kx icripta of iba a credit which must be continued/or several years; and it i.s maaifestiy impossible that a credit of this kind ca.n Jtourish (if, indeed, it can exist at all) where the creditor, by for- bearing to exact payment of his debt for a year or two, will incur the greatest risk of losing it altogether. Wlien, therefore, New- foundland had begun. to emerge from a long period of rickety childhood, into a state of more promising and vigorous adolescence; and when in addition to the * planters,' who for a vast number of years had constituted nearly the whole of her sedentary popula- tion, merchants with considerable capital, or credit, had fixed themselves in all the principal ports of the island, the trade of it necessarily assumed a new and different character, to which the old customs of lien and priority of panment were, as 1 think I have clearly provec' idedly adverse. It was, consequent' , . found necessary to re- strain those customs to their peculiar, and on- ly proper object, i\\e fisheries ; and accord- ingly it is declared, in the 49th of the late K-ng, that, " it will greatly contribute to the '*• advanct inent of the trade and fishery of " Newfoundland, if such effects as persons " be omiug insolvent in the island were pos- *' sessed of or entitled to within the said *' island, should be divided among their cre- " ditors with more equality than hath hi- " therto been practised. It is the protessrid design, therefore, oT this Act, tp introduce a more equal distribution of the estates of in- solvents than bad formerly prevailed m Newfoundland.—- Let us siee, t^en, by ^hat means it purposes to effect this end. Noif, the 7(h secti(;>n enacts, " that in the distri* " bution to be made of the estate and Cj^ecb " of persons declared insolvent, ev^ ia^ 1823. Brkhaut de Shbpparo Bad TruDttN of Ls Messuribr's £•(•!€. :< !, ■ml 420 Brkhaut & • Shbfpard and Truateat of Lb Mbssubiea's £itate. <( the encon- justify the it so far are from requi- ral principle, ^ I NEWFOUNDLAND. that a deviation from it most, for the reasons 1 have already detailed, be inevitably at- tended with the most mischievous and oer- nicious consequences to them. Still, how- ever, if It was manifestly the intention of the egislature to extend that exception, which they have unquestionably sanctioned in fa- vour of the fishery, to our commerce in s-ene- ral, this Court would be imperatively bound to give full effect to that intention ; and the Judge m pronouncing a decision, which he felt to be highly injurious to the interests of the colony, could only say, « Hoc quidem PERQUAM DURUM EST ; SED ITA LEX SCRIPTA EST. (e) Indeed it has been observed by a learned writer, whose opinions seem to me deserving of much attention, from the sensi- ble arguments by which they are recommend- ej even where they are at variance with tC .M^ ''"'' »««-?-establi8hed legal rules, that the exposition of a statute is impera- iive, and not discretionary: and to qualify the express provisions of an Act, by excep- lons deduoed from its supposed spTrit. ; however conducive to the justice of partil "d^.T."?r' w ^^'^'^ ^'«''"'"? prece- dent : (d) and to the propriety of this ob- servation with reference to the particuhr case to which it is applied by him, 1 give the most cordial assent. But words are merely the .t,^„. by which we express our Ideas; and to interpret these signs correctly *ion of using them. If their meaning was ^holly independent of extrinsic circuSst^n! ces, and always umform. the Judges, whose f«r"''\Vl'^.'"'^"""^' ^»»d ««t to make, laws, would be bound to confine themselves (c) 3 Blac. Com. 630. 421 Brehaut & Sheppard and Tnntees of Lp Messurie's £statr. 11 m li •> ■ m 422 1823. iillBHAUT Sheppard aod I'ruvteet of Lb Messuribr's £at>i«. CASfes IN THB SUPREME COtlliT, '' strictly to the mere words of a statute. Td almost every word, however, there are seve- ral meanings; and all these are liable to vary materially with the manner and occasion qf using th^m. In order, therefore, to ascer- tain the intention of the legislature, as ex- pressed in a statute, regard must be had to the words-^to the context— to other Acts in pari materid («)~to the subject-matter of the law—to its effects and consequences— and to the reason and spirit of it rj") : and from a consideration of all these (and not Irom any one of them alone) the Judges are to deduce that intention which, when they have once discovered it, they must closely adh^r^ to, and rigidly enforce, without pre- suming to evade, or even to mitigate, the force of it, although it may be unwise, ov Gven unjust i for the power oi altering laws cannot be distinguished from the pow- er of »M N°*"' ^'^ C-oAe call, thi, ..„„ ^^. w«yMUle«certtipjudgnjeof," 423 1823. JBrbhaut Hi Sheppard anti Tlriitl«r« of LS Messuriek's £»taM. j' i W. 424 1823. Brbhavt & fiHBPPARD and TruaUes of Lb Messubibr's £slat«. m^-' 1': 1^ CASES IN THE SUPREME COURT, creditor within two years is extended to debts of every denomination ; because by such a construction the Act would not only be still liable to all the objections which Mr. Forbes thought his judgment would remove ; but would also, in addition to them, be in- consistent, and, as it were, at variance with itself. Whatever objections, on the score of policy and expedience, may be nrged against a statute which should give to the creditor of the first year a preference over the creditor of the second ; and to the latter a preference over the creditor of the third year ; such a statute would, at least, be consistent; and it would be easy to undei*-'- stand^ though, perhaps, impossible to c^^£n in two years, were in both instances intend- ed to be confined strictly to credits for sup- plies furnished to the fishery^ I come now to the second query arising out of this case ; and a& my opinion upon it has been formed upon the same view of the subject which 1 have endeavoured to support by the preceding observations, I shall not be obliged to dweil very long upon IE COURT, i^l extended to because by such juld not only be ons which Mr. t would remove ; to them, be in- at variance with s, on the score may be urged uld give to the preference over and to the latter iitor of the third d, at least, be e easy to under^ )ssible to defend, it was founded. Id prefer one de^ he first year, to OTB for the same ition altogether "s of the second creditors of that over all other rery view J can urd. Notwith- iguity and seem- ture of the sen* e49thGeo.IIL i the privUeges creditor for the e creditor with- istances intend- credits for sup- I query arising f opinion upon same view of endeavoured to observations, I very long upua Newfoundland. It. By extending the law relating to " svp' ply " to the case of a merchant who is pri- marily engaged in general trade with all parts of the world, and only collaterally connected with a branch of the fishery, I think we should give birth to the three fol- lowing serious evils: — 1st. An extreme difficulty (in some cases, % perhaps, amounting to an impossibility) in ^ settling the estate of such a person upon his becoming insolvent; from the uncertainty which niust generally prevail with regard to the distinction between debts contracted fbr supplies^ and debts contracted in the usual course of trade. 2d. A severe and very prejudicial re- straint upon commercial credit ; from the indisposition which would be naturally felt ,| by merchants in other countries to entrust ^ their capital with a person upon whose es- } tate and effects another class of creditors should possess a preferable claim. 3d. A vast increase to the number of declarations of insolvency; from the appre- hension which would be always entertained by the creditors of the favoured classes of losing their " vantage ground " by delaying I CO enforce payment of their demands ; and from a cold indifference which this wou\d naturally generate with respect to the inte- rests of the other creditors, provided there were a 9anmtki tUnt^ 1 L..»^ *. I -i i. <. MR COURT, 9 it. My sole en- len to ascertaia intention of the 1 regard to the ion ; and after a I of what 1 deem leaning, I am of intended to re- le of distributing orii^inating in a s to every other ! fishery (for the nent of which it s contracted fur y for the purpose riy on, or to en- ?nt. In other sing the account escription which liery, but they ed expressly for to induce a rea- tor looked prin- j voyage for the last of these cir- only true basis 3n, and right to ughl to stand; e as customs, in e of law, which (istrued strictly, • proper object, that a credit of iive the lien and e attach, is ne- character of ge- this ground I law relating to able to them.— it 1 must, bow- lOt uciiu ublu.to KEWFOUNDLAND. v deliver my mind entirely from a number of doubts with which it has been impregnated durmg my investigation of this important case; and it is, accordingly, my most anx- ious wish, that it may be carried before a higher and more competent tribunal. The questions which it involves are not only momentous in their general operation upon the commercial interests of the colony, but also of some magnitude in their particular application to the present suit ; (A) and these considerations will, I trust, induce the re- spondents to appeal from my decision to His Majesty in Council. 427 1823. Drbuaut & Shbpparo ■nd TrustMi of Li Mmsuribr's JBiiBie. —^j Stephen Ne«fport affainst James, Tho- 1^. Mijs, and William Purcell. J HIS action was bronght to recover the sum of £20 lOs. 3d. as the balance of wages due to the plaintiff under a written agree- ment; and the Court gave judgment for the plaintiff according to the express terms of the agreement, after the Chief Justice had refused to admit evidence to prove what was the meaning of the parlies at the time when the agreement was entered into, as being contrary to the rules of evidence; though Jus Honour, at the same lime, informed the defendants that they would be allowed to adduce evidence as to any custom which might prevail in this island in relation to agreements of the nature of the one now nndeii consideration.. fA; Th« debt admitttd to b« du« bylh« iuolreat. to llie claimant^. asic^^niiiH ■ poundi. nft^n W.»» va^.^-l — A- «f ■ .• Nmcmber 15/A. Evidence !• not admissibls to prof • ibat ihe memn- ing of ]hd parlies to an agteemeiit was different from wiiat i{ appean to be by the wrilteo terms of such agreemtnt, takpff in iheir iitnal and ordinary seass. % i m 428 1823. AovemAer 'iith. Order of Court upon a parly who was alleged to liave auffered a ' coosiderable time to elapse without taking any steps towards the pro-* aeouijon of an ap« peal, to show ause why exeru* tion should not is« aue upon the judg« mentgiren against him. November 2itk, The lessee of government ground has a right, under the cuitom of ihie country, to surren» der bis lease upon the destruction of the prenises by fire. CASES 'IN THE SUPREME COURT, Robert Evans appellant, and The assignee to the estate of Thomas CoNGDON respondent. ' ' T the instance of Mr. James Cross^ the attorney for the respondent in the above-* mentioned cause — It is ordered by the Courty that the above- named appellant, and his surety in the ap-* peal, do appear in Court on Friday, the 5th day of December next, to show cause why the amount of the judgment of this Court against the above- 'tamed appellant has not been paid and satisfied ; or why execution 8kould,notbe forthwith issued against the goods, chatties, credits, and effects of them, the said Robert Evcms and William Stafford Pope, the surety in appeal of him the said Robert £vam. ^^ i!« Rex against George "Lilly. MmY this action, the Government sought to recover the sum of £36 from the defendant, for one year's rent of certain premises which had been leased to him. The cause stood over for consideration from the 22d ult., and the Chief Justice now delivered the following judgment upon it : — The defendant is the lessee of some Go« vemment ground, upon which there were certain houses erected, which were con- sumed by fire last summer ; and the present action is brought to recover rent for the same. In his defence, the defendant relied upon the following objections whicU were taken by kirn to the action : — — ^Tiiat agreeably to the decisions of tyf- COURT, ellant, that the above- irety in the Api Friday, the 5th 3W cause why of this Court pellant has not why execution id against the effects of them, 'illiam Steward him the said nent sought to the defendant, iremises which e cause stood e22dult.,and i the following of some Go* ch there were :h were con^ id the present It for the same. relied upon :k were taken e decisions of NEWFOUNDLAND, the late Chief Justice^ upon cases which arose out of the fire by which this town was partially consumed in 1817, he had a right to surrender his lease in consequence of the destruction of the premises thereon by fire. Second.— That under the regulations adopted by the appraisers, appointed under the Ist George IV. c. 51, the houses which had been consumed by the late fire could not be re-Nuilt on the sites of the old ones ; and that a part of the demised ground had been taken from the defendant by the said appraisers for public purposes. That these circumstances, therefore, did necessarily cancel and annul a contract which was, in Its nature, entirely indivisible and incapable of severance. Third.— That immediately after the fire, the defendant tendered to the then Attorney General, as the proper officer of the Crown, the amount of rent due up to the period of the fire ; accompanied with a notice that defendant had abandoned the lease; aud that this tender ftnd notice were accepted of by him. *^ . ^,'^'*»« question, whether the demolition of the houses by fire gave the lessee a right to Burrender his lease, and, by consequence, discharged him from his covenants to repair atid to pay rent, had now for the first time been raised in this Court, J confess,! should have felt great difficulty in deciding it in the aflirmative, even under the strongest evi- dence of a local usage which could be brought before me. In an excellent note upon Co. Litt. 67, a. Mr. Hargrove observes, that *• It has been doubted on the statute 6 Ann, " c. 31, whether a covenant to repair fi^c«e! II rallif, extends to the case ofjire, and so becomes an agreement within the statijtP r" but in Builock v. Vonmitt, 6 T. R. 650, it 429 1823. JR£x t. Lilly (■' • rl CASES IN THE SUPREME COCRT, was Solemnly decided.that a lessee of a hoase who covenants orenerally to repair.is bound to rebuild it if it l»e burned by an accidenta^fire. And it was held, almost* a century ago, in Monk V. Cooper, 2 Str. 763 that the lessee is liable to pay rent after the destruction of the pi( raises by fire, where there is a cove«. nant to repair, qualified with an exception of the case of fire ; which decision was re- cognized and confirmed by the Court of King's Bench in Belfour v. fTeston, 1 T. R. 310, which was a stronger case than that of Monkv. Cooper, inasmuch as the plaintiff had neglected to rebuild the house after notice to him to do so. It was even deter- mined in Ellis V. Sandham,. 1 T. 11. 705, that under a power to tenant for life to lease for years, reserving the Mswwrf covenants, &c., a lease made by him, containing a pro visa, that in case the premises were blown down, or burned, the lessor should rebuild, others wise the rent should cease— was void ; the jury having found that sueh covenant was -unusml. Neither can a tenant be relieved in these cases from his covenant to pay relit by a Court of Equity, (re Ves. 117 ,•: Anst. 687,) unless, perhaps, in tbe event of the landlord's having received the value of his premises by insuring. (Amb. 62 r.)— Such, then, being the settled law upon the points in England, I repeat, that if this had been res Integra in this Court, it would have been a subject of great doubt with me, whether evidence of a contrary practice in this coun- try could warrant a different rule of con- slruction upon leases of this nature ? But this identical question was brought before the Supreme Court in the case of Neivman V. Meagher ^ Others («) ; and Mr. Forbes (a) Ani» p. 207.— See also Carrell v. Carton. 140. anil "- -" - "• " • • '^» X-vWcil 7 t} Vtt COVRTf Icsseeofahoase ppair.is bound to « accidentaF fire, century a{?o, in that the lessee 5 destruction of there is a cove» th an exception ecision was re- V the Court of fTeston, 1 T. R. ase than that of as the plaintiflf he house after tvas even deter> T. 11. 705, that life to lease for venants, &c., a ning a provrsc^ e blown down, rebuild, other-^ -was void ; the covenant was ant be relieved ant to pay relit B. 117 ,•: Anst. e event oi the le value of his 62 f.)— -Such, pon the points ' this had been uld have been me, whether e in this coun- t rule of con- » nature ? But rough t before e of Netvman d iVIr. Forbes V. Carton, 140, KEWFOUNDLAND. 43i I there decided, that the lessee was entitled 1023. lo surrender his lease ; apparently upon tlio V-^^-v-^*^ pnuciple,that the cuHtom of this island to sur- Huxv. Uiay. render under these circumstances, amount- ed to exidence of d general ajrrccmcnt to sur- render in the event of the destruction of the premises by fire. From his judgment tliere was an appeal to his Majesty in Council; but it was, after argument, affirmed ; and It IS, therefore, ray duty to declare, in con- formity to that decision, that the defendant in this suit was at liberty to surrender bis lease. The first objection which was raised to this action by the defendant, having thu« been shown to be sufficient to entitle him to a judgment in his favour, 1 might reason- ably declme a discussion of either of the other points urged by him , but as nues- ♦jons may arise as to the operation of the 1st G£o. IF. c. 51 upon leases, in cases under different circumstances from the pre- sent, 1 think 1 may possibly prevent some litigation by distinctly stating the grounds upon which 1 conceive that the appropria- tion by the appraisers, appointed under that statute, of a portion of any demised j^round to public purposes, has mt the smallest ten- dencn whatever to avoid the lease. in Hornby v. Houlditch (And. 40) it was held, that an Act of Parliament, which had absolutely taken from the defendants the ttjAo/fi of the demised property, did not dis- charge him from the payment of rent for the same ; and m his observations upon that case, Lord Hardwicke remarks, that "every ''person is considered as assentintr to a public Act', and therefore the plaintiff must be considered as assenting to the assignment of the term to the trustees ac^viuiwjj IV iu«- provisions 01 the statute." (I'j •I • f . 432 I \ 'l-i I'li 1823. Ris *. Lilly. CASES IN tnt StPHEME COURt) Upon the same pHnciple, it seems to me to be perfectly clear, that both landlord and tenant must be considered as asHentin^ to the appropriation of a part of tlie demincd ground to public purposes, agreeably to the directions prescribed by the Ist Geo. i V. ; and as the 4th section of this Act expressly fjrovides that a compenBation shall be al- owed them, *' with reference to the value •* of their several interests therein," it was manifestly the intentioi, of the legislature, that the relation between landlord and te- nant should not, in any instance, be dis- turbed or affected by the operation of that Act. With respect to the third point, 1 shall only observe, that if the defendant had not been entitled to surrender his lease, I should not have deemed the acceptance of the sur- render by the Attorney General binding up- on Government^ without further proof that he possessed competent authority to act in this matter on its behalf; but as the lease was» in fact, rendered void by the demolition of the houses, 1 am of opinion that the tender of the lease and rent to the Attorney General was, in the absence of the Governor, or of any person specially deputed by him to act upon such an occasion, sufficient, upon equi^ table considerations, to protect the de- fendant from incurring any liability to costs in this action. ■J k : couRt, seems to me td I landlord and as asMentin^ to )f tlie demised greeably to tlie I Ist Geo. IV. ; ; Act expressly on shall be al- ee to the value Ijerein," it was the legislature, idlord and te- itance, be dis- jeration of that [1 point, 1 shall ndant had not lease, I should mce of thesur- iral binding up- ler proof that he ty to act in this the lease was, I demolition of that the tender tomey General lovernor, or of t by him to act lent, upon equi^ rotect the de- ability to costs KCVrOCNDLAND. Edmund Danson, administrator to the c»- tate of the Tate Timothy Canty^ appellant, and James Cawley, .Secretary to the Commtttee of the Friendly Insurance Socreiy of Harbour Grace, resfxmdent. J HIS was M appef it froir tbe Surrogate <>ourt at Harbour Gn Cf ; anii on this day^ the Chief Justice gave th > foU, vring judg- ment upon it : — PeirCwriam. The judg»ien» of the Court below upon thb case seems to have beea founded on the following considerations*. First. That the total los» of the vessel had been occasioned by the barratry ol one of tl>e seamen, and tJiat by the terms of llie policy, the insurers were not liable for los*- fes arising from that cause. 2dly. That whilst the schooner wa» lying at Havre de Youx„ the master did not do all in his power to repair the da- mage vi^hicb the bowsprit had sustained in her passage thither ; and that he was. guilty of a flagrant violation of his duty in quitting the vessel imuiediately upon her Rtriking against the iee, at the lime when bis presence was. essentially necessary to- stimulate,, direct, and encourage the crew • and under circumstances which rendered it possible that the vessel might have been^ saved, if sufficient exections had been used by the mariners. 3dly. That the vessel, at the commence- ment of the voyage, was not sea- worthy. Upon the two first grounds, J shall tJuch very slightly ; because if 1 am right in the opmion 1 have formed on the last of them, there can be no occasion for me to dwell ioag on the others. It is contended by "the 4S3 I8t9« Iim Kmibt» %itL. That rttfc m \\» fontljtution of Ih*- Marine in«ufatic«- •oBipajiws »f thi» wlaml^ wbi«b< di- reato. " tb«< th«M> ** iball b« a pvevK '*oo». auirey of ** cTary t«ss«I, op- ** OD which an in- '^ susance i» di si^ " led, by iwo sur*. " veyoffr iiomina- " l«d by I be com- **pany, and that •* Iheir ciTlifioale " ahall form tlie " Rround>work of " Ibo policy," ic Inlmdid for ^e additional security of liie compHny ;, and cannot, roose- queniiy, di.p,,ve Ifaem of ih« ri)jlit to prove that a »fi,.. Ml t» wlHch such certificate bad beam granted by tba sur- vey ors waa, not- vitbsianding,. uk< ■eawortby. AU |i 1823. Danson aod Cawley* CASES IN THB SUPREME COURT, appellant, that the evidence which was ad- duced at the trial of this cause, was. not Hufficient to authorize the Judge to con- clude that any act of barratry had been committed ; and he further insists that eve- ry suspicion of such an act is now removed by the record of the acquittal of the man who was indicted for it. Now, it certainly does apjpear to me, that the evidence of- barratry wis hardly sufficient to warrant the Judge jn treating it as conclusive proof. But al- lowing that the record of the acquittal of the man who stood charged with that of- fence is (a) admissible in this case, still it must be remembered that an acquittal does not ascertain facts, C^j and that the only conclusion to be drawn fiom it is, that the party was tried for the offence, and was not proved to he guiUy. If, however, the judg- ment of the Surrogate had nothing to sup- port it beyond the charge of barratry , I am inclined to think that it could not be sus- tained. It is, unquestionably, the duty of the master to use every means in his power to keep bis vessel in a sea-worthy condition during the whole period of the voyage for which she is insured; and the Surrogate, whc is a naval officer of considerable pro- fessional talent,* was certainly more compe- tent to determine whether there had been a foilure of duty in this particular than I can possibly be. For the game reason, 1 am disposed to believe, that his censure of the conduct of the master in quitting the ves- sel when she struck against the ice, may be well founded ; though if I had been left to draw my own inference from the representa- tion which is given of the situation of the (a) As to ihit polnl, lae PhJI. od Ef id. 256. (6) Ouii. Nitti PriMi, 246. « , • Captain John Toup :Nieolaa, C, B. E COURT, } which was ad- cause, was. not Judge to con- ratry had been insists that eve- s now removed of the man who t certainly does 'nee of- barratry irrant the Judge proof. But al- the acquittal of ed with tliat of- is case, still it 1 acquittal does that the only I it is, that the :e, and was not 'evevy the jadg* othing to sup- bmrratryy I am >ald not be sus- hi -r e duty of the 1 his power to }rthy condition * the voyage for the Surrogate, nsiderable pro- ly more compe- lere had been a Ular than I can ; reason, 1 am I censure of the litting the ves~ be ice, may be lad been left to the representa. ituation of the If id. 25S. B. NEWFOUNDLAND. , vessel at the moment, 1 should have con- ceived it to be one of such danger and des- peration asto justify every person belonging to her, in acting upon the principle of " sauve qui peut" In every insurance there is an implied warrantry, that the vessel shall be sea-worth v when she sails on the voyage insured; and if she be not so, the policy will be void, though both the insured and the captain believed her to be set worthy ; and though the insurer knew the state she was i as well as the owner, (c) But, on the part of the appellant, it is urged, that the question of sea-wortliiness cannot be raised in this case, because, by the original articles under which this Insurance Association is consti;? tuted, ii was agreed, that there shall be a previous survey of every vessel upon which an Insurance is desired,' by two surveyors nominated by the company ; and that the certiiicate of the surveyors shall form the ground-work of the policy. The produc- tion of such a certificate must, therefore, it is alleged, operate as an estoppel,^ and al- together prevent the other side from going into any proof that the vessel was not sea- worthy. Hence, it becomes necessary for me to decide, what is the true forc^ and effect of such a certificate. And here I can deny e no positive direction from Ute law of E^land, which can furnish no rule relative to surveys which are wholly unknown to it. In the practice of other coutrtrie&, and in ge- neral principles, 1 must seek, then, to disco- ver that light by which my determiniUion 4ipon this point oaght to be gttided. By the law of Fraaoe,. it is directed tbatt tvei^ merchant ship, before her departure from the place of her out-fit, shall be sur- (o) Bl«r«b. on lufiiraact, n 1, |ibl6]. 43^ 1823. Damson and Cawlet. ?Sgl»**'^^ if. 438 1823. Dansom CAWuir. CASES tv THE SUPREME COURT, Yeyed by rertain officers appointed for that purpose, and reporte tlie insurance it the arguments f these surv^'ys ibly convincing^ )mpany sliould lat K would not ly life, unless it Ue from a me> I constitution of insured ; and constitute the 1 *'ink there le ( ojirts would itended, for the company ; and Fer it to uphold es which would certificate had anner, this ma- 3 that it is often lie want of sea- )8shas been in** d, ex abundanti to the chitoce > clothe them- n against a loss wojrthiuess, by NEWFOUNDLAND. requiring a certificate of the state of every vessel before they would effect any insu-. ranee upon her. Their intention, therefore. 6eems to me to have beeh that the certiflcate should materially lessen the chances of their sutfenng from the want of sea- worthiness in H^hITi \T^ "'** ^^^^ ***^y should be ex. duded by it from settmg up thf. wantofsea^ worthmess as a defence to an action on the fhJ^'^'J'' ?^^^-^ ''^••'^«' '••'■« certificate, like he certificate directed by the law of France, Lv'iSL '/"'^ '^*'"J ^'^'''* or presumptive, evidence of sea-wcrtfainess. which still leaved R,? V 1 ^'^ *'**"''*''■ ^"^ P'"^^® the contrary. ■Btit If 1 am correct in ihe view 1 have taken of the force of the certificate, I can have no hesitation whatever m affirming this judg^ ment; for the «ai;«/ Surrogate has decided, that the spring m the foremast of the schoo' ner, which the iqate has proved to have ex- isted before her first departure on the voy- age, amounted to fe want of sed-worlhiness ; adopt bis decision on this point, ^"Cuique CUEDENDUM EST IN ARTE SUA PERITO " It ««, therefore, my opinion, that this casi was Th^f *K ^ -^T"^^'^ ^y '^^ Surrogate ; and that this judgment ought to be affirmed. 437 titji lij' MifV Y'}!')' tnuhin "5 .fiiriii'jf ^J 'iil^h^f; Sflj :^'-f--v'-sit hriR . v,oe,, „p.^ C'^tHm «>;{* ,f>ir' •/ 1825. Dan SON and Cawlev. "hfiiK.'f 1 t'.k. Ill milt i'ly/kith i)i ■I' ■ ■■ I' in-i/niiin • iuj!yfl(n| 'I*' »IU»iis lt9J) hiUi a-itiin V, ' )Jti> (^^3 'i^iUv'jtir) .■ ; •t,>jv;. /; ■ (4 '1 « 'I oJ wmm> tim^^mm m7a£ 1 ( i m Urn §y ;.: m h tm S ill ^^H^^Heii L J^^ f M^ H J UI|:| 438 1828. December lOth. A strict aJhe- renue lu ihe FORMS of comniisiions used !» Enuland, is not nocts^ary in commissions issued iu this country. It it sufiicirntif there is no departure/m «u6« f':nce, from ihota priDcipIvs by which alone (be vahdity of all commissions ought to be tried and determined io a place so peculi- arly situttled and circumstanced as Newtoundlaiidt CASES IN THE StPHEME COITRT, William Dawe against io-Aia Brooi^, tVlL- LiAM Oart^ir, George Holbrook, Pe- TEii W. Carter, John TErrington, & ^^' "William Haly, Esqrsk '■ . T' -■ j«}t:> J, ■■ H'E circumstances which gave rise to litis important action^ and the proceedings which accompanied the trial.of.it, are parti- cularly described and detailed in ihe follon^-* jng elaborate judgment :^^'i» '3Jflonfi^ai> vrtj . Pp" Curiam, TJ rged by the plkintiff, iwKo ti» on the eve of departure from this .country, for a judgment in this case, 1 con^ 'sidee qayseir bound to comply with bis re- quest, although the extreme pressure of bn« siness upon ihe Court, Et this season of the ,yeaiv has necessarily prevented me from be*- ■stoAring that time and. undivided attention upon it WMcbv in every :point of view, it «eems to demand. A question has, indeed, been raised by it so novel, so complex, and so important, that 1 should distrast my abi- Jity to decide it, even after a long, patient, and dispassionate investigation of it in all its bearings; andas 1 have only had leisure to look cursorily into a small number of the authoritios which I was desirous qf consult- ing upon it ; and as I am entirely cut off from every communication with any profes- sional person capable of assisting my re- search, or of removing the doubts which have frequently pref ented themselves in the progress of it, J am ic . frcm reposing entire confidence in the determination 1 have, at length, formed upon it. 1 have, howr rer, the satisfaction to know, that there is a tribunal capable of correcting my errors, to which the parties can resort ; and the strong conviction I f^el that mv iudfirment. on whichever side it may be given, will be car- J^ip»,,te&««-. 'j^ E COURT, loLBROOK, Pe- ERRINGTON, & h gave rise to he proceedings of it, are parti- id indie follow-* jr the plaintiff) eurture from tbis ais case, 1 conr- ply with bis re- pressure of bn« is season of the ed me from bet- iyided attention )int of view, it on has, indeed, a complex, and distnist my abi-> a long, patient, ;ion of it in all mly had leisure I number of the rous of consult- entirely cut off 'ith any profes- ssisting my re- i doubts which leroselves in the r>?posing entire tion 1 have, at have, howf ;er, that there is a ig my errors, to ; and the strong judgment, on 'en, will be car- NEWFOUNDLAND. ried by appeal to that tribunal, considefably iessend^ the feelings of responsibility under which 1 should otherwise dct; by rendering my ^lecision of comparatively trifling moment !!!i u ^'^^^''^sts «^ the parties. Having offer^ ed these observations in extenuation of those defects which, i have reason to fear, may be discoverable in some parts of thb substance, as well as m the form,, of this judgment, I ^hallnow state the leading-circumstances of the case upon which; it is my dtttj; in (he fifstinstance, to decide; mh ),{f rf». v r^t, Ihe plaintiff brdught an action of trespass against the defendants, and declared against them, m one count, for false imprisonment specially; m a second, for false imprison- ment generally : and, in a third, for a com- mon assault. To this declaration the de- fendants pleaded, ore tenus, first, the general issue, not guilty; and secondly, a justifi- cation ; setting forth that thev were regularly appointed commissioners of Oyer and Ter^ mtner, under a commission from his Excel- lency the Governor, which they pi^.:.iced- and that whilst acting as such, they did commit the plaintiflffor repeated contempts ottered to them by him in open Court. To the latter plea the plaintiff replied, that the commission under which the defendants acted, was altogether invalid and illegal • and m support of this replicction, twelve exceptions were taken by him to the com- mission. The trial having thus been entered on, and a vast deal of evidence produced on both sides, I told thejury, in my charge to them, that if the defendants were appoint- ed commissioners under a legal commission, they undoubtedly had a right to commit for contempt; and that it was not competent to tblS Uourt tn innitir^ i«»^ 4I : T — c«8 under which they exercised that right ; 439 Daws. and BitOOM, &c. &c. i 440 CASES IN THE SirPeT:ME COURT, 1823. Dawb r. Broom, &c. Ac. 1 i iifit that 1 was not then pf';'pared to I'va them a positive op>inoi» Kjitu^ nhe kgaHty c f the ponimis»ion, because my luiud wa^i by.' no means mide up o^i^ that point. That the ' course, then^Vre, which 1 would recom-- mend them to [uirsue, would b ? t© deterrnine what damages the plaintiC ought tu receive,, if the d«3fendank& W'iirercOt sufkH^fed to pro-- tectioo under their €0i>i»i8sioH ; imd to re- : fer that question to ihe futntM decision of th e Court, bj a special verdict.. Under this direction the jury, after a deliberation ofse*. Yeral hours, returned the fotllowing verdict : " The jury— finding tbaA the defendants* wereappointed by biftEicellency Sir CVior/e^r Hamilton, the Governor of tiiis island, un-^ der a certain commission '^i Oyer and Ter- miner, dated 12th September, 1822, where- upon they did assemble and act as a Gourt; and did, on the 4th day of October, fine the- plaintiff for an alleged contempt of Court,, and on his refusing to pay the same, did commit faim< to prison, where they kept him in confinement until he paid the same, oik the lOth day of the said month— feel them- selves incompetent ta say if the said Court was, or was not, legally constituted, and pray the opinion of tiie Court upon thia point. ** The jmry therefore find,^ specially (assu* ming the defendants to have been acting under an illegal commission), for the plaintiff —one hundred and fifty pounds damages." It is upon the grour ^ then,, that the commission is illegal, th;' e plaintiff must lay bis claim to a j^^dga t on this verdict; and I, therefore, gav >th sidesan oppor- tunity of submittin^^ f^itional observations upon it to the con^'jii^'^tion of the Court. J n this argument, hov^cvan no new points were taken by either sick nor any further [p*filf^ i«E COURT, »rt^.>ared to |;tY» ny luiuil waa by noint. That the I would reoom*^ ib^todeterrriiijie Dught to receive,. £ntit1i<&d to pro-' ibvi ; iiikd tore-: urc decision of ict.. Under this eUberation of 8e> . Uowing verdict : ilhe defendants*: lency Sir Charlesr r tills island^ un^ 'Oyer and Ter^ jr, ld22, where- ^ act as a Court; >ctober» fine the empt of Court». y the same» did e they kept bm 1 the same, on^ ith— feel them- f the said Court onstituted, and ZoMti upon thisi specially (assu'^ ive been acting; , for the plaintiff nds damages." then^ that the e plaintifi* must jn this verdict ; sides an oppor- al observations Ml of the Court, no new points lor any further Newfoundland. authorities cited in support of those wliich ^ere brought forward at the trial. Those were, on the part of the plaintiff— Ist. That the Commission does not run in the King's name. 2d. That it gives the Commissioners no authority to inquire by the oaths of good and lawful men of the island. 3(J. That no day, nor place, is set forth when, and where, the commission is to be held. 4th. That no place of jurisdiction is as- signed, within which the offence must have been committed. 5th. That the offences which the Courf was to have power to try, are not enume- rated. 6th. That none of the Commissioners are selected for a quorum. 71 h That a father and son are joined in the Commission. 8th. That the commissioners are to hear and determine according to law and justice; and not specifically according to the laws and customs of England, ;. 9th. That the number of commissioners necessary to constitute a Court is stated to he five m one] part of the commission; ' whilst, m another part, power is given to ^any of them, without restriction as to nura* ber. 10th. That it contains no precept to the Sheriff to summon a Jury. nth. That it is not tested by the Governor. 12th. That it is nneiet the private seal o) the Governor, and not under the seal of t/ie Island, To these objections the defendants an» swer: That they are all founded upon a variance, m point of form, from the Commis- sions of Oyer and Terminer issued in Eag- 3k 44^ 1023. Dawb r. Broom, &e. &9. Yli 442 1^ jj 1)1 J i 1823. Dawb V. Bboom, &c. Sec. CASES IN THE SUPREME CODRT, land ; and that an adherence to those rorina cannot be necessary in this country, becau8u they cannot, by any means, be made tu apply, in a number of particulars, to the actual circumstances and condition of it. That the Commission under which they sat is the same (with only one very trifling difference) as a// the Commissions of Oyer and Terminer which have been issued in Newfoundland from the first constitution of such a Court in this Island in the year 17<>0. That within the long peiiod of seventy and odd years, a considerable number of these Commissions had issued ; and that several person^ had suflfereil capital punishment un- der the sentence of Courts constituted by them. That the proceedings of those Courts must have often come under the review of (he Government at home; inasmuch as paidons had been granted by [lis Majesty to felons recommended by the Governor to the Hoyal mercy. That John Reeves^ Esq. who had been Chief Justice of the island, and whose legal acquirements preclude the supposition that he could have been ignorant of the form of the Commission of Oyer and Terminer used in England, had sat, as first Commissioner, under a Commission of nearly the same form as the one which the plaintiff now sought to invalidate; and that a Commission which had been sanctioned by the approbation of so good a lawyer as Mr. Reeves — recogni- zed, in a number of instances, by the public departments in England — and uniformly acted upon in this colony, fronii the earliest institution of a Court of Oyer and Terminer — must not only be substantially right, but also suitable, iu poiui of form, to the cif- cumstances and condition of the country in which it has been used. B COURT, NEWFOUNDLAND. 443 ) to those forms ountry, because IS, be made t« ticulai'^!, to the nditioii of it. del* which they ne very trifling ssions of Oyer been issued iu : constitution of the year 1750. :l of seventy and lumber of these nd that several punishment un- constituted by ose Courts must 'i review of the inch as pai dons ijesty to felons or to the Royal who had been md whose legal lupposition that t of the form of Terminer used Commissioner, y the same form f DOW sought to mmission which approbation of \eeves — recogni- 3, by the public and uniformly }in the earliest r and Terminer tially right, but rnu, to the CiT- f the country in ' The defendants further contended, that, although the Commission were altogether illegal, it would still furnish a justification of their proceedings under it; in the same manner that a constable, or other oflicer, may justify an arrest under an illegal warrant. But they appear to me to labour here un- der a very great mistake ; for, in the first place, there cannot, 1 think, be the slightest analogy between a Commission conferring a judicial authority, and a warrant command- ing a wiww/mo/ ac/ ; since it is always op^ iional with the Judge to exercise his autho- rity or not, whilst the officer is under a positive obligation to execute the warrant directed to hira, and is entitled to indemnity upon the principle, (a) *• Quicunque juisu ju^ dicis aliquid fecerit, non videtur dolo malo fecisse,quia parere necesse est." Jtis the obligation he is under lo obey, which consti- tutes his claim to indemnity. And, second- ly, though, in conformity to this principle, the statute of the 24th Geo. Jl. c. 44, does protect an officer who executes a warrant '^properly penned;' {b) even where the ma-* gistrate who issues it has exceeded his juris- diction, yet the officer still continues respon- ajble for anything done by him under a war- rant void from an irregularity in the form oj it : so that, admitting that the rules which have been established with regard to war- rants may be extended tojudicial Commis- sions, the defendants in this suit could de- rive no benefit from this admission; because the objection here is, that the Commission is improperh penned, and not that the Govern- or wanted >Mm* IE COURT, Bliall endeavonr examination of ons to it, in the v through- Jhontv ,lp''"'^'r"'-',""^^'^^'«" ^»d au- IWm ^ "if. "»'«^'''«'^/i^ or mec'atelu, from him ; and that, consequently, this commit ^K,n IS an absolute nulfity if it atLr^l to confer judicial powers upon the defSn s fe? Ten In !u^ '"'P^'-f^"* Point. let us re- ler, then, to the commihson itself: which after reciting a power granted to the On lettei-s patent, to constitute and appoint m ^ses requisite, comraissinns of Oy° and Termmer; and certain instructions ^f, Hi2 Majesty relative to the manner of carrvine Jh^ power mto effect, r roeed to an 2 he defendants comn Isb aers % v^ue^ ^emor. It does, therefore, appear to we to . ior; -, p. 70, W Paley'i Prio. and Agent, 221, h 'B| \r' 440 1823. Dawb V. Broom, dic, &o. CASES It* THE Rl'PREME fOURT, bo perfectly dear upon the face of this in- strument, that the comniiHjKioners did derive their powers from the Kimf thron^h the me- dium of the Governor, who was empowered and directed by the King to appoint them ; and though I do wish that, in compli- ance with long established forms, it had nm in the King's name, yet 1 cannot venture to pronounce it illegal upon what J deem to be nothing more than an inaccuracy in a mere matter of form. The second objection, viz ;— That the commission does not direct the commission- ers to inquire by the oaths of good and law- ful men.ihas always been considered by me as one of the most serious of the whole list ; and I have even entertained great doubt whether this omission did not entirely viti- ate it. If anything in a commission is msxt- teroi substance, I should say, that the direc- tion tu the Commissioners to proceed by a jiirt/ is most peculiarly so ; and if my deci- sion on this point were to be formed by my own estimate of the importance of it, with- out reference to precedent and authorities, I should almost conclude, that this omission conhl not be supplied by any implication or intendment whatever. But it is a remarka- ble fact, that the Commission of gaol deliveri/^ now used in England, which confers as high jtidicial powers upon the Commissioners as the Commission of Ot/er and 7\rminer, does not contain, from the beginning to the end, a single allusio: ^,o a jury ; and I think that if this omission can be aided by intendment in one case it may be equally so in anoilier. Now, Serjeant Hawkins, {g) in his chapter upon justices of ,aol-delivery, observes, «• that it is said in some books, that they «« hnvp nni. iis such. Dower to take any in- „ — „_.. ... (,j) 2 ll«*k. I*. C. i>. 24. i I ; roiTRT, ace of this in- iiei'H (lid derive .lirouj;lj the rae- ifas empowered appoint them ; It, in compli- rms, it had rim inot venture to It 1 deem to be racy in a mere iz;— That the lie commission- good and law- jsidered by me the whole list ; id great doubt t entirely viti- nission is mat- that the direc- proceed by a ind if my deci- formed by my ce of it, with- md authorities, at this omission implication or t is a remarka- oi gaol delivety confers as high nmissioners as. 7'erminer, does ng to the end, id i think that by intendment so in anoUier. I in his chapter ery, observes, oks, that they take any in- \ KliWFOl'NDLAND. , •*dictm€nt; but the common opinion that *• they have .such power, seems much more *• a^ireeahle to reason ; for surely it cannot *• hut be implied iu their Commission to do- •* liver prisons of their prisoners, that they " must have authority to make snchdelivcr- ** ance hy due course of late, which cannot ** be without a proclamation if there be no " prosecution, or a proper trial if there bo " one;" and upon reason etpially forcible it nii'y be saiil, in the present case, that when these Commissioners are empowered to hear and determine felonies, &c., accord im^ to law and justice, it must, surely, be implied, that they are to do so by due course of law— «. c, by the oaths of good and lawful men of [he island. Jf, then, the direction to inquire by the oaths of good and lawful men of the island is necessarily and obviously imflied in the Commission, 1 do not conceive that it is material in what manner this direction is conveyed. The third objection is, that no day, nor place, i8 set forlh when, or where, the Com- mission IS to be held ; and, certainlv, if the directions npon these points had been />«/•//. cnlar in the Commissions used in England, It might have been necessary to inquire up- on what principle the statement of a parti- cular time and place had been inserted in order to ascertain whether it should be con- sidered ds a substaultal, or only ^s a mere fornial, part of the Commission. But m point of fact, the Commission of Oyer and JermineruseA in the English circuits, only commands the Commissioners, at certain ii in England^ cular specifica- : jurisdiction of signed. From It, the territory into counties ; been, that all any of those hem by a jury , the sentence ried into exe- nted for them* } county could committed in I the sentence into execution the one of the i^as committed : tely necessary jurisdiction of irly stated and »y which it was being, in legal d distinct from rey, as if they quarters of the nent of differ- 1 no such divio nd an offence of it, might ac- mtre c*^ it, by a red, the island bat Its, agreeably to the NEWFOUNDLAND 44& jury coming from the other extremity^ ; and 1023 the powers of the High Sherift" extend y r . ',_ ' through every part of it. Hie jurisdiction Dawb of a Court constituted under a Commission v. from the Governor of Newfoundland being ^«oom, &c. &•. therefore, as I apprehend, confined, by a reasonable and necessary intendment, to this island and its dependencies, I cannot discover, in reason and in principle, any ne- cessity for a more particular designation of its limits than what may be fairly inferred from this commission. If that close analogy exists between a magisterial warrant and a judicial Commis- sion which the defendants contend for, then must this Commission most unquestionably be bad ; for a warrant to arrest all persons who may have been guilty of any criminal conduct would be so defective, that it could not afford any justification to the officer acting under it. But though it would obvi- ously be illegal and absurd to leave it to a constable^ or other executive officer, to de- termine what act would amount to criminal conduct^ I cannot perceive tliere is anything of the same sort of impropriety in empower- ing judges to hear and determine all ••cri- minal causes," without a particular enume- ration of them ; because it must be supposed that they have sufficient knowledge of the law to ascertam whac acts it regards as cri- minaL And it is to be observed, that it is even left to the justices of Oyer and Termi- ner in England to determine the extent of their criminal jurisdiction from their know- ledge of the law; for their commission, after enumerating avast nQml^r of offences, goes on to authorize them to hear and determine • *' all other evil doings, offences, and injuries whatsoever;" ihereby leaving it to them to decide what actions the law deems evil do- 3l 450 1823. JJawe V. Broom, Ac. &c. \i CASES IN THE SUPREME COURT, ings, ofTences, and injuries. Nor is the ex- pression "all criminal causes" more vai^ue and indeterminate than the expression ""all cdmes and misdemeanors," by which tiie criminal jurisdiction of the Supreme Court is granted and defined by the 4S>th oi'hb late Majesty. J. am, therefore, of opinion, that there is nothing solid and substantial in the plainiiiT's fifth objection to the Com- mission. The next objection is, that none of the Commissioners were selected for a Quorum ' and it may be proper to notice here, that this IS the onty circumstance in which the present Commission diflfers from the one un* der which Mr, Reeves sat ; which was al- most a literal copy of all the Commissions of Oyer and Terminer which have been issued m this island since 1750. It is, therefore, highly important to ascertain the materiality of this exception; because it clearly follows, that if the Commission cannot be pronoun- ced to be vicious upon this particular grovnd, it must share the same fate with all the rest, and cither stand or fall with them. Wow the Commission of the peace confers two distinct characters, or offices, upon the per- sons named in it; the one being that of a mere conservator ofthepeacei and the other that of djud^e, invested with a large share of criminal jurisdiction. Hence it is apparent, that very different degrees of qualification, with respect to learning, are required in the two offices ; and it is probable that in the reign of Edward the Third, wiiich is the era from which we are to date the appoint- ment of a justice of the peace, many men would be found capable of discharging the duties of conservator, who were totally unfit to preside in a Court of /#?«», When '^ -■-'•. fore, persons of two distinct classes were to E COURT, Nor is the cx- s" more vaque xpression "all by v.'liich llie Supreme Court the 4i>th of \w: ore, of opinion, d :,ubstantial in n to the Com« at none of the for a Quorum ; )tice here, that i in which the 'om the one un* which was al- Z!omn)is8ions of ive been issued tt is, therefore, the materiality clearly follows, ot be pronoun- 'ticitlar grovndf ith all the rest, h them. Now e confers two i, upon the per- being that of a t and the other a large share of ) it is apparent, f qualification, required in the ible that in the , which is the B the appoint- e, many men ischarging the re totally unfit ;lasses were to NEWFOUNDLAND. be united in the same Commission, it was inost wise and necessary thatja regard should Oe had m it to this diflTerence of qualific,!- tion ; and that the powers conferred by it s ioul<| be in proportion to the abilities of the party to whom they were entrusted. 1 he cause for this distinction ceased, how- ever, with the advancement of learnin'r- and the quorum clause is accordingly de'ciared J*y Blackstone, (/) Burn, (k) and other wri- ters, to have long since become a matter of mere Mm This remark, it is true, is con. nned to the commission of the peace. But we may also measure the importance of the quorum clause in other Commissions, by considering what is the real use of it. Co/, cejving then, that no reason can be drawn either from their education, professional ha- bits, or rank m society, why greater powers should be given to the>,* than to the last ot the gentlemen named in this Commission J can discover no other motive th^n a re-' spect for ancientybm*, whicli has, pprhaps too tar (/) lor Mie insertioa of a Q«w:um clause in It. stv-v***"* The objection, that a father and son are joined in the Commission is entirely new to me; and is certainly made by the authoritv to which the plaintiff has referred iuZmZ of it. to rest upon a very sandy foundaUon. He cites a book er.titled - a compendi«rnf Jaws relating to jurors," p. 3.15, where^^s said, that it m a good cause of challenge, to (t) 1 BIftek. Cam. p. aril. ! ; thitlhl 5" r '" ^""'*''' ^^^- '* »» *^«n »«a«*^ by Burn 1; *^;f,^-?''-''«^'°» '« or4««ually made of late ylmfZi (0 For example : enchsntmenti, sorraries and ftri« 4ril 1823. DAWg. 452 CASCS IN THE SUPREME COURT, M 1823. Dawb V, one o{ the grand jury in the attaint, that he is related to one of the petit jury ; antl, with- out adverting to the circumstance, that the I-. t Beoom,*&c. &c. grand jury are to try the petit jury upon the serious charge of having given a false ver- dict, he proceeds to argue upon an analogy between the offices of judge and juror ; and insists, that if it be a ground of chalienge to a juror that he is related to another ; iror, so also it must be a good exception to a judge that he is related to a fellow judge. — Had he reflected for a moment, that the grand juror in the attaint, and the petit ju- ror, stand in the relation to each other of juror and party accused, and not in that of felloiv judges, he must at once have seen that the authority hequotesis wholly foreign to the case to which he attempted to apply it. No exception can be taken to a juror on the ground that he is related to another of the same jury ; and, therefore, if judges and justices were even liable to the same challenges as jurors (v^hich, however,they are not), (m) it would still be no objection to a Commission that two of the persons named in it are related to each other. Another objection, and one of a much more serious character than the last, is, that the Commissioners are to hear and determine according to law and justice, without being specially directed to do so according to the laws and customs of England. In his com- mentary upon Magna Charta(«) Lord CoAe eays, that *• upon the words per legem terra: "all Commissions are grounded, wherein is ** this cX'dxise, facturi quod adjustitiam perti- net secundum legem et consuetudinem Anglice, And it is not said legem et consuetudinem tt tt fm) Co. lilt. S04. (m) 2 last, 60. ' ^m '««te'#?^jS;.' ;,M^«'-^*i-- .**.-H.^ a COURT, ttaint, that he try; anil, with- mce, that the juty upon the en a false ver- on an analogy ind juror ; and )f challenge to another j !ror, xception to a jIIow judge. — lent, that the id the petit ju- each other of lot in that of nee have seen wholly foreign pted to apply iken to a juror ed to another fore, if judges le to the same wever.thev are Dbjection to a lersons named le of a much le last, is, that and determine without being cording to the In his com- («) liOrd Coke er legem, terra; ed, wherein is ustitiam pertU dinemAngUte, cofisueiudinem NEWFOUNDLAND. ** Regis Anglifc, lest it might be thought to "bind the King only; nor populi AngUee, *' lest it might be thought to bind them on. ** ly ; but that the law might extend to all, " it is said per legem ierne, i. e. Anglia>. *' And aptly it is said in this Act, per le lotn'se of judicial construe^ tson and mterpi -tatiun of them; since it would be ihelurj/^flen dutyof the Jus-ticesof the present day to adhere rigidly to that constructio 1 and interpretation which had been unifortniy given them by former Justin ces. if their meaning was clearly andmani- Jcsthj an improper one, I allow that no length of time could heal such a defect in the Com „ mission, agreeably to the maxim, «• quod ah tmtto non valet, tractu temporis non conva-, U3 1823. Dawb V. Broom, Aic. &c. 454 1853. Dawb V. Bkoom, &c. &c CASES IN THE SUPREME COURT, Icscet ; " but an expressidn which might on- (rinally have been open to the exception iA being rather too loose and indeternwiale, mnVi J apprehend, be thoroughly purged of this /'ault by a conslrnction of it invariably fol- lowed for a considerable number of years. Finding, therefore, that all the Commission- ers of Oyer and Terminer who have been appointed in this island since 1741), have, by the course of their proceedings, determined that the expression '* law and justice" is, in is legal operation and effect upon a Commis- sion issued in Newfoundland, equivalent to " t/te law and customs of Midland" 1 con- clude, though with some diliidence in my opinion, that it is now too late to object to the use of it. The last pentcnce in the Commission is, •• And that you do make your report to me "of all such proceedings had and done in "the causes which shall be brought before " you, or amj of you, nominated, authorized, "or appointed, as aforesaid;" upon which the plaintiff has attempted to found an ob- jection, that it gives powers to any of the Commissioners to perform acts which, by previous clauses, could only be executed by Jiveoiihem, But, in the 'first place, this sentence is not repugnant to the other clau- ses; because it does not expressly authorize the Commissioners to do anything except making a report of their proceedings to the Governor; and, secondly, the context re- quires that the words ''any of you" should be inseparably united to the words " nomi. nated, authorized, or appointed, as afore- said; and thus it is evident, that any of the Commissioners could only act in the manner in which they had been previously " autho- r*^*^ " to <^o. This appears to nie, then, to ue au excepiioa to the Couiniission scarcely dr?.i»r..m«. the. notice I have taken of it. I E COURT, 'liich might on- \e exception of" Herminate, mayj purged of this ; invariably fol- umher of years. le Commission- who have been 174y, have, by iss, determined d justice " is, in pon a Commis- , equivalent to igland," 1 con- iidence in my te to object to Commission is, ur report to me id and done in brought before id, authorized, " upon which found an ob- 3 to any of the cts which, by •e executed by %st place, this he other clau- issly authorize y thing except feedings to the e context re - fyou" should i'ords ** norai^ ed, as afore- hat any of the in the manner usly " autho- me, then, to ssiou scarcely en of it. NEWFOUNDLAND. The 10th objection may, 1 think, be very properly coupled to the 2d, and receive the same answer which has already been given 10 It. Jn the omission to direct the Com- missioners to inquire by the oaihs of good and lawful men ; and to notify them that, lor this purpose, the Sheriff had been com- manded to cause to come before them such good and lawful men, this Commission re- sembles the Commission of gaol delivery still used m England; and if these omissions inay be supplied in that case by reasonable implication and intendment, I repeat that J do not see why they may not also in the present. Upon the next objection I shall only ob- IfnnV'^iV^ ""^^ "S'^' ^^'^t this Commis- sion should be tested by the Governor. 1 conceive that it has been done so by he ^ords - m witness whereof," &c. in a man- ner which excludes all cavil upon this point Since (o) there undoubtedly is no public seal foi this island, It seems a good answer to the objection that this Commission is not Otlta. This objection, indeed, if it iould illln ^^".'d. prove, not only that the pre.. Hent Commission is bad, but also that no good one could possibly have been issued • a proposition which, J imagine, hardly am person wil be found to maintain who i^ aware, that an authority to issue such a Commission has been solemnly committed Great S^J'Tv^ His Majesty, under the ment nf !k' ""^ ,^"§^«"^- That an instru- nowL !f If °^'y'f' ^?»^e"ing as it does the power of life and death, should be executed with the highest possible solemnity; and (0) Somo years after Ihi'a judemenf was d«li.,»,.,! . i.-.:.i:c seal loi rvewfoundland was forwarded lo the f;./ v«r«or, by the Secretary of Stale for .h« Colonies. 4&5 1823. Dawb V. Dboom, &0. &0. 'i if- 450 Dawb V. Broom, &o. &e> CASES IN THE SUPREME COURT, that, consequently, where there are seveml seals (as is the case in England) (p) the one of greatest weight and importance shonki be aflSxed to it, I freely admit: but at the same time 1 contend, that this principle has been followed upon the present occasion by affixing to the Commission the Governor's J private seal, which, in the absence ofapub- ic one, must be accounted and esteemed of the greatest weight and importance of any seal in the island. In support of this, his last objection, the plaintiflf has referred to that passage of the second institute {q) where Lord Coke says, that " Commissions '* of new inquiries, and of new invention, *• have been condemned by authority of «' Parliament, and by the common law ;" and has argued from thence, that this Com- mission must be illegal, because it is, as he insists, one of "new invention." But if he had adverted, for an instant, to the circum- stance which gave rise to this observation respecting Commissions of *• new invention,"^ he must have perceived th«t the Commis- sions of **«€W invention" to which it is alone applicable, are Commissions authorizing an inquiry into Acts not previously deeined or imi- nal by the law, or directing the trial of such as were by new and unusual methods ; and of the illegality of such Commissions there connot be the shadow of a doubt. So far, however, is i^ord Coke from asserting, that no alteration can be made in the form of a commissson, that after telling us, (r) that •* Sir Christopher Wrny, the chief justice of *' the King's Bench, had, with the assistance and advice of the other judges, made di- ' vers additions and alterations in the com- (p) 2 Tnit. 554. fq) l\ 478. (r)4 ln»l, 171.- «( a^«^«iiJ«i#*'*««if:;fesvt,a* % *' E COURT, jere are seveml id)(/>) the one rtaoce ehonld nit : but at the 8 principle has nt occasion by the Governors sence of aj^Mft- id esteemed of ortance of any jrt of this, his as referred to 1 institute (q) '♦ Commissions new invention, f authority of iommon law ;" that this Com- kUse it is, as he m." But if he to the circum- ^his observation new invention," it the Commis- vhich it is alone I authorizing an ly deemed crimi- Lhe trial of such nethods ; and of imissions there doubt. So far, 1 asserting, that the form of a ig us, (r) that chief justice of h the assistance Iges, made di- )ns in the com* t( (( tit SLUtOUNDLAKD* '^I^i;;?'Wi''rT,?^"^'*'" «m//.r and r P ' / 1/' ^•^•:^'*'"P «d^«. " and yet theio needeth another reformation ofitrU) 1 10 ity o tins greai „«„ ^-^^ all such dlera^ hn r ',?;''f Commissions now ««ed in Kng- and, ' both lu mailer and methodr as may tlLr^f.?'"^''' •'^''^P' ^"^ accommodate tl'rcolLyr "'-^"'"^^-^^^^ --^ condition of ihl nf? ^r^."""^ ^.'''''"Sli the whole list of vitho ./h •' ^^J'^^^'"?^ t«thi« Commission wi hout having been able to discover eithe^ m them, or m some others which have su-. gested themselves in the course of ihisJa- vest.gat.on, sufl cient grounds to justify me n pronouncing it to be illegal, li many of .em there never was. as J conceive. a„y. lung substantial; and those defects which have iT'f "1 "'^''^ '''"""« ^h^" ^^^ ••e«t ion V i^ t' ^T ""'1^ ^>' "-^^ ^^"«truc: lion which has. for a long period bepn -uniformly given to expres^ioL orlgina, ^ less clear and determinate than they onc^ht to have been, li ,his Commission was no- SI .vely contrary to law and reason-as if ^t tTe'cor-'"' -^^o#..c... orempowei^d the Commissioners to inquire into oW one" by 9iew and arbitrary methods-it certaLTv could not derive the"" slightest saldon S support from the length tf time during whic has been muse; because, in such cases tiomsestconsiderandarit) and one mirht ^ven apply to a Commission which was fia- }>'°fiJ^r of those objections, thedeclara tion of Mr, Justice Yates, in the memoraWe* . of Jame, the fLj *^ "** «tougbt Mce.8arjr ia Ibo reif q (t) Co. Lilt. 141, a. ,. , ' •;^.> ; ,; ;, 3m ' '"'^*^' ayaiMcj 457 182.3. Da WE. V. BnooM, &c. «!tc. ■tttiiiife*..,, ^'*^i^i.^./ li •' 1. « r m. k I * ? -rti 458 1823. Dawe V. B&QOM, &.C, Sec. CASKS IN Tlia SUPUEME TOl RT, cas€ of the warrant for seizing papers, *' ihat -" I he vse of it from thefoiindalion of aucicnl " Rome would not render it legal.'" («) But if the detcmhints, whilst sitting under it, must have felt themselves bound, by the terms of it, to conduct their proceedings according to the law end customs ef England (as it is evident to me they must), 1 cannot admit that a departure — in some instances neccb- sary and unavoidable — ^from \\\q form of ;in English Commission, can vitiate it. This is the opinion i expressed before 1 had ex* nrained it with the attention ] have since done, it is the opinion which Mr. Reeres mast certainly have entertained of it ; and it is, also, I strongly suspect, th'^(w) early opinion of Mr. Forbes npon it. 1 should, therefore, 1 confess, have felt more than or- dinary confidence in it, if it had not been officially communicated to me by his Ex- cellency the Governor, that some of the law officers of the Crown have reported to the principal Secretary of State for the Home De- partment, that they consider it invalid. With a knowledge of this fact, 1 naturally cherish doubts which would not otherwise have as- sailed me. But, however profound my respect and deference for the talents and learning of those gentlemen may be, I cannot guide ray judgment by their opinion, unless 1 had been made acquainted with the reasons upon which it is grounded, and been fully satis- fied by them that the opinion is correct. 1 humbly conceive, too, it is possible they may be induced to ac(}uiesce in the view 1 have taken on this subject— First. Because it does not necessarily (v) 2 Will. 275.-11 H«r. State Triali, 31». (to) Wliether or aot Mr. Forbes has obanged that opU IkOD, ! caODui ptslsau iO sbj I uHl s. aafs stiOiig scaSOS to biliaTO that h« must bare once ealertained it, '^ I cox RT, g papers, ^' that lalion of ancicnl j^aV h) But if '^ under it, must by the terms of ngs according to h^land (as it is f cann'^t admit nstances neccfc- the form of n'\ initiate it. This lefore I had ex* »n 1 have since hich Mr. Reeves ned of it ; and ict, th^ (w) early 1 it. 1 should, It more than or- i it had not been me by his Ex- some of the law I reported to the orthe Home De- it invalid. With naturally cherish herwise have as- found my respect J and learning of cannot guide ray nless 1 had been e reasons upon >een fully satis- m is correct. 1 ossible they may the view 1 have not necessarily Tridi, 319. las ohanged (hat opU T l._ . entertftiDed it. ■m Mlow from thtir havinj; reromracndtd that a 1 ardon should bo granlttd to the persons sentenced under it, that they deem it to all intents mul purpo es invalid an the rule, which has ays prevaded in i^lngland, of giving to i aers the full benefit of all nice «\ccptioiid and Jechnical olyections which can be raised to the mdictment, or other parts of the proceed- . mgs, under which they have been convicted, they might have thought it necessary to give to the persons sentenced under this Commis- sion the benefit of these fonnal objections withoirt thinking that the Commission itself was rendered by them so radically vicious and positively illegal, that no Court could be constituted under it. That the distinc- tion 1 here take as to the degree, or extent, to which a Commission may be invalid is not merely a fanciful one, 1 think the £oU lowing case will show.^ In his iPourth Insti- tute (a?) Lord Coke tells us, that " to Coni- *' missioners of Oyer and Terminer a writ of ** supersedeas was delivered,^Mia; enormis 'ytmnsgres^io nan est, for it was only for *• cutting, dotvn 4PPLIED^ IIVUGE . Inc ^at 16S3 East Main Street JSSS -^ Rochester, NY 14609 USA „^S-^ Phone: 716/482-0300 •f=r.S8S Fax: 716/288-5989 e t»93. Apptad Image. Inc.. AH Rightt RtMrvtd «- i\ ^^^ »re, **vetusMe hall also have the silnntion in IS, and, 1 may ts Courts, they :linecl to insist ngiisli formula} than 1 imagine ion upon this freating of onr iam Blackstone nies carry with English law as L situation, and colony; such, \ rules of inhe- from personal ejinements anil f>roperty of a e, the laws of lode of mainte- lergy, the juris* ind a multitude tlier necessary id therefore are nrork upon the erica, which is IS to have been f the illustrious e law in all our aw of England, ;reat part of the [)i:r settlements little choice or , the laws of od of their dii« improvements, dious, perplex- NEWFOUNDLAND. 48t 1823. ;;ed, and intricate, by the heaping up many rtnove them m another. These n fan t «. I ; ' I . ' ^"" i'eterminatc legislation B«oom, *c. *«, ^^ though , were of somewhat an home li"; l^ind : laws suited to the time to thHr n?l"/ '■^' °»d the nature of their new wVv "hwnfr^r^'''r^ «till subsist nh^ law ot England which are built mwn cul -ses and reasons that have long a^Tea'cd' '• SJ^n '"« i? ''•'^^^ '^^^« '^"'tabTelo ^/i^W onitf." But if many of the law^ of England be thus unsuitable to thelZ'/ condmon of a colony (and. with referenctto her jurisprudence and iuridicil ^^tnAU i m. .as. Newfoundland sti I is „ n L^tP nf fi '" that slnctness of form observed in all cfmi nal proceed.ngs in England, which cSu.^ mn. ^-'^jellent man,Sir^/a///;.i^/i«^'^';^'^^.^ " e^an ' r .i '^."^^ "»«- offenders • over in force in'a sode y !'he e tvo"cor missioners could not, nrobablv ll« f'i capable of construing\h'eI?'c^^i^^^ ine«tofpfcJJ,71,*, "^^^^^^^ to III. depart f i 402 1823. Dawb V. BaooM, &c. &o. CASES IN THE SUPREME C'OURTr Or tliat an indictment might be cjunshed for not being written on piu'c/inient, in a Court whei'c the nse ofparclmient is, lo this hour, wholly unknown ? It is superHiious, howe- ver, to multiply examples oi'this kind; since every person who has attended our Court* must have remarked, that, even in the Su- preme Coiirt, the ** forma etji^urajum" is scarcely at all attended to ; ami that the Judge i& frequently obliged to deal out justice to a number of ignorant suitors ** se- cundum bonum et aquum," without regard to abstract rules of law. For my own part, I avow, tli,at before I came to this island, 1 could hardly have been persuaded, that Courts of such a constitution as ours, in re- ference to t\ie form of their proceedings and practice, were to be found within the whole compass of the Britisli empire; and the im- possibility I find of assimilating our proceed- ings, in matters of form, to the courp' ^ prac* tice at home, convinces me, that : ii'd be most unreasonable and absurd to estimate their validity by their adherence to forms -which, with the machinery now belonging to our Courts, it would be utterly impracti- cable to introduce, or noake any use of, in them. It only remains for me to notice one im- portant circumstance, which has had great weight and influence upon my judgment in eontinued to be (he law of England till, ooanfitralivcly, within • vary few jr»at*. Agnin, Lord Coke telU us (4 Inst. p. 1G4.) lh«t th« aullioritj of CumniissioncrB of Oyer and Terminer oiusl be given '■>y Commimon, and not by writ; and yet Sergeant Uawkuu declares, (P. C. Book 2il, p. 15) (bat he cannot ascertain what the difference n btitweeu a commission and a writ. Can points, then, of ■o fine anil subtile a nature as not lo be discernible by lii« must cUar-sighted Emilinh Ipwyeis, be supposed to bo wiihin the vi^w of tbos« who are a|ip6iiitetl lo aamtnislcr the Uw io such a colony as this ^ if •*fc"^.ir > qunslied for , ii) & Court to thm liour, ]iiou», liowc- » kind ; since (cJ our Court* en in the 8u- 'Mf«j«ri»" is iml that the to i\eix\ out . suitors ** se^ oat regard ta ' own part» I this island, 1 Buaded, that 9 ours, in re- ceedings and >inthe %vho]e and the im> onr procced- 3urP' ^prac* nt ? n\i\ be d to estimate 3nce to forme ►w belonging; ;rly impracti- ny use of, in »tice one im- lias had great ' judgment in I, ooi»p«rati?c1y, i Coke lella us (4 uissioners of Oyer mion, and not by ret, (P.O. Book tlie differmct it points, then, of ilisceinible by liia •upponed lu bo Led to ftominisicr Ii J-iEWPOUNDLAND, tins cnflo. In the progress of my investiga^ lion Of us M.omentotis question, it-occurred to me, that iiiMiiy of the inaccuracies uhicli appear ni liic Commissions of Over and 'JVr- mmer. must. |>rohably, also have crept into the Commissions of the Peace: and in looking into them, from the earliest period to which 1 can trace them, I accordingly find, that they aie all oino.vtous to many of the same oh' II J«ctions that have been raised to this Com- * ^T";r^1*^ ^^"» »^^*'''"n^- losome^,^«/^ self that his Commission was void through same ol them ; and thus 1 should, vsovLrv ^eclare, that there never has b^en a leVull mate magistracy in this island, from theSrst settlement of it. But this is\Z^^^^^^^ winch, 1 think, cannot be mairuairdTand I feel |>erfect y satisfied that when my Jul, W.Ufc8ty in Council, n will be there reviewed upon principles of sound rea.on ; and Tot examined by rules of law framed for ?h« most part, before the di.coverrof our co . lonies and m many particulars lotalk Tn^ that august trib^al t Shan it^turj!.? «.i8sive reverence ; hnt ,i„lesa I Xli t liolfi thi?. •''"M «™.^^«"-^' i shall alway^ hold that this Commission is not illegal • lentltliirt^rH'^^"""^^^' '^' defendSae reiititlecl to judgment under the soecial vpr Jdict which the jury have found iffi cast bench or the oib" or U,^i«.fSl "'^ •"""'"•• «' ">« »"• 402 1823. Dawb V. BaooM, &c. &c. '/ 464 1823. December 31i/, Where a jiiJg- Bieni liad been ac> qiiiescvii in fur a tvuiiderabte Itngth of lime, tlie t'hicf Justice would nut Rranl a new trial in order tu let in new •Tidencd w liicli had Kince btteii dinco' vrred. And his Honour stated, that the pri^seiit leanioK uf his opi« iiioii wan, that the |iracticoof ({rantmit new trials ofter judgment had been (tivrn, oiicht to bd confined to judg< manta by default. CASES IN THE 8U1>REME COURt, In the cause between the Hrprescnintivcs o( tlie late William Pa RtsoNHrrn-am/ James ISiiEPpARD and William Danson. To It is Honour Richard Alex- ander Tucker, Es(/. Chief Justice of the Island of New- fouHiUund, 4 C' ^yc. 6fC. The Memorial of ,J^Jaii/ Parsons, o(lh\r]tom' Grace, in tiio Island of MeuTuiuid- land, Spinster, IIUMDLY SHOWETH: That in the month of Octohcr, 1010, the cause of the " Heprosentatives of WUliam Parsons v. James Shepjuird and William Danson^ tenants in possession," came on, and was determined, in tlie Supreme Court at Harbour Grace, wherein there wasjudgment ^iven against memorialist; which judgment, in memorialist's opinion, was erroneous, as memorialist has since been informed that the evidence oi' James Lilly, George Lilly, Eli- zabeth Chancet/, and Elizabeth Lont^, all of St. John's, would be most material in favour of memorialist, as by an affidavit, herewith transmitted, will more fully appear. And memorialist further begs leave to state to your Hononr, that our late worthy Chief Justice Forbes, on the last day of his sitting in the Supreme Court, stated in wri- ting, upon the affidavit of the late Lionel Chancejf, which is also inclosed, that he "would allow a rehearsing of said cause, upon certain conditions therein expressed. That your mcmoiialist would further beg leave to state to your Honour, that during the time of the Supreme Court having been suspended, in consequence of the Chief Jus- tice being absent, she has always kept in ■m f <-m>^^^ COURt, rcscntntivcs o( against Jam '^^ Sanson. tSEWFOUNDLANl). 40a :hard Alex- :r, Emj. Chief sluud of A't'/f- ns, oriJarhoiU' jwfuimil- licr, 1010, the L'S of William and IVilliam 'ciimcon, and enie Court at wasjudgmetit iciijndgmenf, erroneous, as irmed that the ^e Lilly ^ Eli- LoniTf all of crial lu favour avit, herewith pear. ie^s leave to r late worthy St day of his itated in wri- te late Lionel >sed, that he d cause, upon 'essed. i further beg r, that during having been Ihe Chief Jus- iways kept in 1023. Paksons V. Shrpparo and Danson. Wew and intimated to the agents of Mr. // illimn Danson, her inteuiion of moving the „^ pre ,e Court But finding that the agents 'b- 'ate Wm ' of|he8auJ '^*/Aa//i/>a;«o« have commenced bmldiug a store upon that part of the pre- mises m dispute, your memorialist begs leave to pray that your Honour will h„ onX« 'i"r" ^ '^^ »'"'"'''^* °^'''« documents onclosed, to order a re-hearing of the case ; and, also, that your Honour will grunt an injunction to defer the erection of the store on the disputed premises until the case is ti ought to issue. Mary Parsons. To which the Chief Justice gave the fuN lowing wntiea .iiiswer :-- 1 have perused this memorial, and the ac- and '*nnr'I!?H"'""''°^'' ^*"' ereat attention, and not without some desire that J miijh find myself at liberty to comply xviti tl e wishes of the memorialist. But7 conceive that ,t IS utterly impossible for me to doTo In England, a new trial is sometimes, thoujrl rarely, granted upon the discovery of new and material evidence since the trial .Tidd^ Practice. 020); but this is always VX^ judgment; and when judgment has once been entered, a new trial cannot be granted here, under any circumstances whatever In this country, however, a practice. arS reviewing the grounds upon w%h i was ^h^'cZVi^t' from the ma„n.?^u, w© ine f^our* is frequently compelled to exv^ judgment by d^ault, it is eS| to^^'^ attamment of substantial jugti-e C Much I power should, in manv inZ.rTt^.?' cwed by i> «••* •*♦ -- "-- v.' — ^t ■»•» ^>h;*- «. But it is. at t^^,^;^^^ 3lf a 400 CASE* IN THE UCPREMR COURT, llip laie Wm. Parsons V. £iiieiitatif et *>f «ent indication of my mind is, that it oiiKht * ' "'" to be confined, strictly, to judgments by itefault. Without, however, venturing to say that a case may not arise which would warrant the Judge in granting a re>hearing of it, I feel perfectly convinced that the present is not one of that ^ g g of this cause, long interval, the lur the judgmei t Id the land for a leration, and hi d 3nt, so that the he premises upon I have been with- r against them; icelled this judg- ich a purchaser ? lot, and the ar- lence against the , in my opinion, lat I cannot help would not have B a re-hearing, if I to reflect upon tion which was hurry of prepara- iis country. But, ainst my review- cogent than any 1 have suggested lerefore feel my- >f rejecting the RETTFOl' ft Dl.wnm Ben. Bowimno agniusl John 1L»r«isow. JL HIS was an action to recover the sum of i79 iu. lOf/., as the enlimated value of cer- tara articles of jewelrv shipped by the cor- respondent of the plaiulitt', at Liverpool, in the Brig //cro, of which the defendant was master, and consigned to the plaintiff. All the material facts of the case having been distinctly proved by witnesses on both sides, the Chi^' Justice said :— It is a clear rnle of law, that the master \b hound lo take all possible care of the cargo from the time it is placed under his charge until the delivery thereof to the consignee ; that he is liable for all injury to it arisin*^ from bis neglect or want of skill; and thai he IS, in most cases, answerable for the em- bezzlement of it. But the 20th Geoige 111., c. 86, s. 3, expressly provides,. •• that no ♦♦ master, or owner, shall be liable for any *• loss or damage which may happen to any gold, silver, jewels, &c., shipped onboard !! **?^.. ^®®*?*» H"'®*" *'»« owner or shipper .. f -n Vf r ® **'"® of shipping, insert in his bill of lading, or declare in writing to the " master the true nature, quality, and value "of such gold, &c." Now. the bill of la- ding, in the present case, contains no such notice, nor has any evidence been adduced that such notice was given to the defendant agreeably to the provisions of the said Act' It IS clear, therefore, that the plaintiff can« not recover. Nor would the plaintiff have been entitled to jodgment even if the 26th Oeorge 111., c. 86, had never been passed- as the Court is strongly impressed with a conviction that the articles were not embea^ 2!ed, whilst the cask was in the charge of tlie defendant. nnH wnnM ti,„-^f-__ i ^ " ." :*« ir 1 ■' r — •-— '.'t, is.cicioic, nave leit Itself bound to give judgment in his favour 407 1934. May 97/ik NeillMr lh« nn»- ler nor lh« owner of • veM«) ii liable for any Iom or da. arlBoflhaTea«era •arpo, and of tha Manner of atowaga tiaed on board of lier, will not la- liava Iba oiaatar and ownara fron tbii liability. TuoMAs Beck against The Owners of the Uny; Kelton. I HIS action was brought to recover a cumpensation for damages 8upposed to have been occasioned by an improper stowage of some bags of bread belonging to the plain- tiff, on board the vessel of the defendants. After having heard the witnesses who were produced by the plaintiff and defend* ant, the Chief Justice proaounced the fol- lowing judgment : — There is some difficulty in deciding from what source the injury to the bread was occasioned ; but, from the evidence which has been laid bctore nie, it seems to have proceeded from a gas, or vapour, produced by the coal. Assuming, then, that the bread was shipped in perfectly good order, and became deteriorated in the course of the voyage, by a vapour arising from another part of the cargo, the question is, whether or not the master and owners of the vessel are liable for a deterioration in the quality of the bread, resulting from such a cause? And ] am of opinion that they are liable.>~ It is stated as a rule, by JRoccus^ that '* if mice *' eat the cargo, the master must make good *' the loss, because he is guilty of a fault. *' Yet if he had cats on board his ship, he *' shall be excused." And it is observed by a most excellent writer (a) on this subject, that " this rule, and the exception to it, (e) Abbott, in hia Tr^atifa or Merehaul Ships, part 3^ chap. 3,;aae. S. T m. ,ppi iilW i ii l>;iM »^^WW|||fcr.#j» ,j| j|| l p l H l >».,iL,i JIH^ . ility is, tlinl lut into the filers of the recover a )se(l to have stowage of > the plain- fend ants, lesses who ind defend* ed the fol- ciding from bread ivas lence which ns to have r, produced at the bread order, and urse of the 'om another is, whether >f the yessel the quality ch a cause ? ire liable.-— Iiat "if mice make good T of a fault, his ship, he )bserv£d by his subject, ption to it. Ships, p»rt3| NEWFOUNDLAND, " although bearing somewhat of a ludicrous "air, furnish a good ilinstrution of the prin- "ciple by which the master ami owners are "held responsible lor every injury thai ••miffht have been prevented by |,i,muu /ortsight or care." Now, it certainly was withm the reach of human foresight to dis- cover that bags of bread would probably bo injured by being placed within a short dis* tancc of a large quantity of loose coals ; and the owners and master are, therefore, clearly responsible for the damage which has arisen u "i ^^""' ^^ proper care on the part of the latter. Jthas, indeed, been suggested, that the consignor knew that the vessel was jmrtially laden with coals ; and that havin"- chosen, under this knowledge of the facts oT the case, to put his bags of bread on board her, he must be considered as having con- sented to take upon himself the risk of its bemg mjured by the coals. But, as no proof has been adduced on this point, I am not now called upon to determine on the validity of this argument. lam, however, strong v mclined to think, that the defence would not nave been materially aided b' . -oof of this allegation. Public policy ha „ J con- ceive, imposed upon the master and owners of ships, the duty of stowing their cargoes in such a manner that one part shall not be mjured by another; and if, after having re- ceived one article, another should be offered to them of such a nature that there was a chance of its being injured by the former, they would be bound to point out this cirl cumstance to the owner of the second arti- cle, and, at the same time, to decline takin*- It without protecting themselves against this risk by a special exception in the bill of la- Omg. It 18 thft hliainpeo #.f *U^ „. * .• the vessel, and not of the shij.pcr ef goods, 460 182-1. ,Brck V. rtieOwnrr* of lli« 13rig Keltun. 470 CASES IN THB 8UPREMB COUIT, 1024. Bhck •. Th« Owntrn of tht Bfig Kkltun. lo make himself acqitnintpil wiili the pro- perties of the (JiHTerent ar icIvK in um fur ux their stowage i» to be n'p;iilat(Ml by thoi^e properties; and the mere know ledire, on the part of the shipper, that the cargo of a vessd conuisted of particular articlen, can never raise a presumption against him that he was aware that some of those articles might prove injurious to his goods; nor transfer^ from the master to him, the obligation of ascertaining what would be the probablo operation and effect of the one part of tho cargo upon another. For these reasons, I feel no hesitation in giving judgment for the phintiflf. 1 l» t^ Stjilember 23d. Wh«relh«lrdt- !•• lo an insolvent •ilatff had obtained poesestion, in vir*> tua of that charac- ter, of soine goods which had been sent to Iha ineol« Tent from England, Aid bad actually conveyed ihem lo the uliinata lermi* HUB of their des. linaiion, the Chief Juitiee held, that the vendor's riRht to s(oppa|ie,ia Iran* ■itu, having been coni|iletely divest- ed by these acts, no subsequent pro- eeading on the part of the trustee could defeat the olaima of the gene* lal creditors of the fsiate to those goods. The Trustees of the Insolvent Estate of Jah£s Fox and John Uyan. attending this case J flC circumstances are sufficiently explained in the following judgment: — Per Curiam* This case involves the question of the vendor's right to stop the goods, which form the subject of it, in their transit to the vendee ; and the only doubt which the Court has extM^rienced in the de- termination of it» arises entirely from the mystery in which the facts relating to it are enveloped. The loose manner in which bu- siness is often conducted in this country, and the consequent relaxation from the rules of evidence observed in England, frequently render it extremely difficult for this Court to acquire a correct knowledge o(/acls ; but the UttiSculty of doing so, resulting from these general causes, is, in this case, considerably increased by the particular conduct of some of the leading parties to this transaction, it -'#»*«♦«»«*«« lovmr, villi tlir pro- I ill UH far uA led by those luiitrtNon tlic go of a vessel es, can never 1 that he was rticlcs might nor transfer^ obligation of the probable ic part of the 28e reasons, I ^ment for the nt Estate of Ryan. \ng this case Ihe following involves the It to stop the of it, in their e only doubt :ed in the de- ely from the Lting to it are in which bu- this country, from the rules id, frequently for this Courl oi facts ; but ing from these considerably iduct of some ansae tion. it NEWFOUNDLAND. Is obvious, from their mode of proccrdiny, chat both the iiiMidvenl, /'o^.and hislnislee, Jiapivi, wire iiilluenced by some private viewH opposite to ihtir duty to the general creditors of the iiiHolvent; and that, in the prosecution of tlieir own interests, they have bad recourse to measures which have brought the rights of these creditors into jeopard'y ; for it is clear that, if Ilatfes had acted in the manner in which his character as irusUc recpiiied that he should have done, there never wuuld have been nn occasi«»n for luinging this action, i'rom the evidence of Fox, it seeum certain that it was his in- tJ'ntion to obtain, through the agency of JJai/es,a fraudulent possession of these goody. And, upon the failure of this plan, IJat/es, upon motives which do not distinctly ap- pear, but which, to say the least of them, are o^ien to strong suspicions, surrendered to the defendant, as agent 'to the vendee, the good.% whi<:h, as one of the trustees to tile insolvent estate, he was bound to hold for the general bentf't of the creditors. J hrough the veil which has thus been cast over this case, the Court has, however, been enabled to trace the following prominent features of it, from the testimony of Fox and Hayes, and from a few documents which were produced at the trial. Soon after Fox had been declared insol- vent by the Surrogate Court at Harbour Grace, a notice of this event, and of the ap- pointraent of trustees to his estate, was in- se.'-ted in the newspaper of that place ; and to this notice the name of Michael Hayes was subscribed, as one of the trustees. The trustees did not, however, take any active part m the settlement of the estate; but agreeably to a practice very common in this couiiify, iney devolved the onus of such 471 1824. TtutUHnI (hw In* l-'uxaoti Uyan. Ui{ i 472 CASES IN THE SUPREME COURT, A I «i I* ♦! II f 1824 settlement upon nn agent appointed by theiiii v.^lr!^ In this state of Fox's afiairs, two vessels ar- Tru.te.. of th. In. fived at St. John's, having on board certain fcolvcDi E.I8U of articles o! merchandise for him, which nan ]b'oxMdllYAN. i^ggn shipped by Mr. James Gordon oi Man- chester, from whom Fox had been m the habit of ordering goods from the commence- ment of his business. When the last-men- tioned goods were ordered by Fox, he liad reason to suppose that the balance then duo by him to Gordon would have been ^\9»\^^- ted by a remittance of fish which he had just before made to Gordon ; but this hope was disappointed in consequence of the bad market for tish, which did not realize Uie prime cost. The goods shipped by Gotdon to Fox were always insured by the former; and Fox was charged with the premium thereon. If they were sent to Harbour Grace, they were consigned directly to i'oo;, but if the vessel they were shipped in was only bound to St John's, they were forward- ed to Foxs agent there. The goods in question were put on board a vessel bound to St. John's and Harbour Grace, and were consigned immediately to Fox^ On their arrival at St. John's, after the declaration of insolvency, Iw (being then in the posses- sion of the invoice and bill of lading; gave Hayes, the trustee, who was the master and owner of a small schooner engaged m the carryinir.trade between Harbour Grace and St. John's, an order to receive them ; but the master of the vessel having been m- formed, previously to the delivery of tlm order, of the insolvency of Yox, refused to comply with it until the newspaper was shown him by Mayes, announcmg his ap- pointment as a trustee to the estate of Foj?; and then he sunered nmi lu iaa.e wi^ ^^ "' which were conveyed by Hayes to Harbour Uttt, ledby Ibeitik i vessels ar- oarti certain which had •l»ent Esiaie of for the consequcnres of such Act. I'ox and Ryan. J'Vom this outline of the case, it is appa- rent, that //rt^f* obtained possession of these goods in his character oUrnstec to the estate of Fox, and not as a mere carrier between yt. Jolm's and Harbour Grace; nor yet as tlie private a-enl of Fox. 'J'his fact is, in- deed, established by two circumstances, either of which would, alone, be alraofi ai- ficient to evirce the truth of it; viz., 1st, the positive refusal of tlie master of the vessel to deliver the };oods to IJaijes before he was satisrted, by the projluction of the newspa- per, that he was one of the trustees to the esfaie of Fox. 2dly, the high improbability llial the master would have delivered these goods to a carrier, to be conveyed to the port to which his own vessel was immediately bouud. But, if it be true, as it clearly seema to be, tliat Hayes got possession of the poods as trustee, and had them for some lime in his |>ossession at Harbour Grace, the case is entirely relieved from all the nice points which have arisen respecting the ''corporal touch" of the consignee, or bis representative ; and the arrival of the goods at the '' ultimate terminus'' oi X\\e\v desti- nation ; because here the goods were in the actual possession of the trustee at their ulti- \ mate terminus ; and continued so for some time before any attempt was made by the defendant to assert, even by letter, Gordon's claim to them. Jt only remains, therefore, to be considered, whether Hayes, having thus obtained possession of the goods, in Virtue of his character as trustee, and under a demand of them as such, could afterwards 3o -^ j. 9ni m^:i ' ^ BW ' Wi.j innam ■h 'I I 474 CASES IN THE SUPREME roURT> Fuxaud Ryan. 1824. repudiate that character, and thereby divest "' mmm , ■ * that right of the general creditors to them Ttuiteesotthu In* which attachcil, as a necessary consequence sol v«ni Estate of of their coming, through such means, into the hands of one of the trustees to the estate. But it is evident that their right, after it had so attached, could not be defeated by any act of Hayes ; and that any attempt, on his part, to do so, was a gross violation of his duty, and a manifest fraud upon them. — The Court does, accordingly, give judgment for the plaintiff for £212, the admitted value ^ of the goods, together with the costs of suit. I Novenhtr 4th. In hearinf! up* peals, the Court will not receive any evidence that was not tendered at the trial of the cause Ja the Court belovf. Page & Noble appellants, and Arthur Hunt Carter respondent. J. HE nature of this case, and the circum- stances which priivented it from receiving an earlier determination, are sufficiently ex- plained in the following judgment :— < Per Curiam. The hearing of this appeal has been deferred very much beyond the usual period, for the purpose of enabling the appellants to produce tho copy of a letter vrhich they consider as forming a very ma- terial part of the defence to the action in the Court below, and which the attornies for the appellants asserted to have been lost, or mislaid, through the default of the clerk e/the Court. That letter has, however, since been found in the office of Mr. Dawe, who acted/oi' the appellants^ by bis clerk ; and the Court is, accordingly, now in possession of all the do- cuments upon vhictk the judgment of the 0.,~.- 4. * I sTurrugutiC vins lunucu. Its doty, therefore, is limply to inqnire thereby divest litorn to them r consequence I means, into 8 to the estate, lit, after it had feated by any ttempt, on his iolation of his upon them. — ;ive judgment dmitted value ! costs of suit. Iant<<» ^spondent. d the circum- Vom receiving ufhciently ex- lent :— ' of this appeal I beyond the »r enabling the )y of a letter g a very ma- the action in I the attornies lave been lost. It of the clerk ice been found » acted far the the Court is, I of all the do- gment of the >Iy to inquire fi NEWFOUNDLAND. whether or not the decision of the Surro- gate is warranted by the evidence which was laid before him ; for an appeal being in the nature of a complaint against the deter- mination of the judge upon the farts sub- mitted to him, the Court of appeal is neces- sarily precluded from admitting any other evidence than that upon which the judg* ment complained of was founded. In this respect there is an obvious and most important distinction between an ap- peal and a new trial. The Court, then, being thus obliged to confine its attention to the documents ori- ginally produced at the trial of the cause, confesses itself unable, after a careful exa- mination of those documents, to discover a single ground upon which this judgment ought to be reversed. On the part of the appellants, it has, in- deed, been contended, that the directions given to them by the respondent in the post- cript of his letter of the sixteenth day oi July, one thousand eight hundred and eight- teen rthe letter which was alleged to have been lost), to remit to Mr. StabbonQ hundred pounds, and to pay to another individual nfty-nine pounds twelve shillings and eighth pence,— is sufficient to raise a presumption. that this direction had been complied with ; and that these sums ought, consequently* to have been deducted from the balance which they admit to be due to the Re- spondent, if the sums of one hundred pounds and fifty-nine pounds twelve shillings and eightpence have not, in point of fact, been severally paid by the appellants, agreeably to the instructions of the respondent. But the doctrine that a mere authority to pay, Without any ^vooioiaeiual payment, or even of an undertaking to pay, is sufficient to en- 475 1024. Pa«b & NOBL and A. H. Carteb. 476 I* ■- li| t 1824. 119 9 May 2(/,1825. MPn ' The Naval Offi- ^iwB cer is eotitled to ■^ i jn^B charge a fee upon the clearance of ^liln vetsels employed Iffil^a < in the fisheriea. ^^^^^^^^H [But note, that thia ffl^^l « office haa been If^^B •boliabed since this fi'^nv jadgment was de- H^bB livered by an Act IH ^ of Parliament.] mf^ J f L CASES IN THE SUPREME COURT, title tlie appellant to have the bcfore-meii, tioned sums deducted from the balance due by them to the respondent, is so contrary to every principle of law and reason, tikat it would be an idle waste of time to expose the futility of it; and this Court does, there- fore, without the least hesitation, affirm the judgment pronounced in the Court below. Aaron IIocsett against Jons Boyd. Ti HE right of the plaintiff, in his character of Deputy Naval Officer, to certain fees up- on the clearance oi fishing vessels, was the great question raised in tiiis case. After having taken some time to consider it, the Chief Justice delivered the following judg-» ment: — The constitution of this Court is, I believe, entirely different from that of any other Court within the w^de circle of the British Empire ; and the duties of the Chief Justice of this island are not only more laborious, but, also, in many respects, more irksome and difficult, than those of the same oCicer in any other of our colonies. In all of these, some considerable period of time always in- tervenes between the commencement of an action and the trial of the cause ; and the judge is also advertised, by the pleadings, what the question is which he is to deter- mine ; but here the writ is often made re- turnable on the same day that it is sued out; and even where a loP"-er interval occurs be- tween the teste and return of the writ, the judge can derive no relief from this circum- stance; because there are no pleadings to apprize him of the point at issue between the parties. The division of the year, too, into :OURT, before-men-i I balance due o contrary to eason, that it le to expose t does, there- in, afHrm the ourt below. •UN Boyd. his character rtain fees up- sels, was the case. After isider it, the lowing judg^ I is, 1 believe, »f any other 3f the British Chief Justice re laborious, lore irksome same oficer all of these, le always in- :ement of an ie ; and the le pleadings, e is to deter- ten made re~ tissued out; 1 occurs be- he writ, the this circum^ pleadings to between the iSiTf too, into li NEWFOUNDLAND. terms and vacations', allows the jud-^es of oilier places leisure to examine, and cahnlv to reflect on, those cases which mav have given rise to any new. or unseliled, question of law ; but with us t»»u whole year is one continued term; and thejud-e, being liable to sit lie die i/« diem, may feeiingjy exclaim. IMULLUM ALaBOUC Mli RKCLINAT OtIUM " JVor are these the only disadvantages to which he IS exposed. Most Courts are com . posed of 5Ci'c;fl/ judges, who. by confeiea- ces among themselves, and by an union and combination of their separaie powers may decide very nice and dciicatenueslions with comparative ease; whereas the judge of this Court IS cut ofl from all communication with every person capable of assisting his researcli or relieving his doubts ; and, will, nolhin- tj depend on but his own store of knowlod-e IS required to determine the most difhcult questions that can arise in every department of the extensive and complicated science of the law, with that celeriti/ which is expected from a summary course of proceedino; and >vhich, in truth, forms the only recommcn- dation of it. Such, at least, has been, and still is, the state of our judicature. But we are on the immediate eve of an important change, which will, 1 earnestly hope, remove, or mi! tigate. most of the evils to which 1 have here briefly adverted; and. in the expecta- tion of the early establishment of a Court upon a very diflerent plan from the present 1 have, for some time past, been desirous of reserving all cases of great magnitude, or particular interest (on account of some /fe- neral principle which they embrace), for the opinion of the other judges of the Supreme ii« " ;.; — """'» "WTTcvif conshieied myself at liberty to indulge this dcsireTa 477 1825. i^'^mmiti' 'mm>,'\'' '■am/sk. 'I N(^ 478 4 i. 1825. Boyd HOGSETT CASES IN THE SUPREME COURT, * Opposition to tlic wishes of the parties moro directly interested in the determination of any question; and, as tiie plaintiff in this action has applied for a judgment, 1 shall now pronounce it, although there are some points in the case which I should have been extremely glad to have consulted the other judges upon. The plaintiff seeks to recover the amount of certain fees which he claims to be due to him, in his character of Deputy Naval Offi- cer of St. John's, upon some vessels belon"*- mg to the defendant, now employed in the sealjtsheiy; and the defendant resists the payment of those fees, principally, upon the ground, that the plaintiff's right to them, if It ever existed, has been taken away by the 6th Geo. IV., c. 51, s. 4. 1 shall, therefore, inquire, Ist, Whether the Naval Officer of Newfoundland was at any time entitled to Ihe fees he now demands? and, 2dly, Whe- ther the statute upon which the defendant re les, or any other Act of Parliament, has taken awa^ from the plaintiff any part of those fees which were given to the office he holds by the ]Oth Geo. IIJ., c. 37, s. 2? Before the reign of Charles the Second, the colonies engaged very little of the atten- tion of the English Legislature. The at- tachment which every man feels to his na- tive land, and the diffi'cullies and hardships always incident to every first attempt at colonization, were such powerful checks to emigration, that only a few persons of des- i perate fortunes, and very daring spirit, ever thought of forming a permanent settlement m Amenca, so long as tranquillity and se- curity were to be enjoyed in England. But the civil war, and the troubles which for many years preceded it, compelled a vas» number of persons, of all ranks, to seek an ^ IE COURT, lie parties more letcrmination of |)Iaintiflr in this figment, 1 shall there are some oiild have been ilted the other ver the amount ns to be due to ity Naval Offi- vessels belong- uployed in the ant resists the f>ally, upon the ght to them, if 11 away by the hall, therefore^ ival Officer of ime entitled to d, 2dly, Whe. the defendant Parliament, has iff any part of o the office he .37,8. 2? s the Second, e of the atten- ire. The at- ^els to bis na- and hardships St attempt at rful checks to arsons of des- nj? spirit, ever !nt settlement lillity and se- ngland. But BS which for ipelled a vast s, to seek an 1*^ KEWFOVNOLAND. asylum in the new world from the danffera and misery which surrounded them at home ; and those persons having, by courage and perseverance, surmounted the difficulties to winch they were at first exposed, gradually acquired such a degree of importance, that the notice of the government was very par- ticulaily directed to the - Plantations in America about the period of the Restora- ' yllL. -^^^^^''^'^g'y* one ofthe first statutes vvlicli was made, upon the return ofthe King, ,s the I2lh Car. II.. c. 18.. which IS commonly called the Navigation Aci; 2L J ^!r^ succeeding years of the Which contain the basis and principle ol that Colonial System," which has been follow' eil, with very trifling quali.lcations, for more han a hundred and fifty years. The ob- iere "" st /'' '^V"' " P^"»^««^ ^° «"^'« were, jsi, ifye exclusive aupply of all the fvants oj the colonies by the Molhc/countT; ^d, tne reslnclion of all colonial exports to ^nqland and Scotland ; and, 3dly, the con- ilHY' r^- "'' <'«/'"''^'<^'«^ intercourse between the Colonies and the Parent State to British pupping. To accomplish these ends va- rious legislative regulations were adopted ; and. as no custom-house establishment had a RrJ/ ^'^^^f^'-^'n^ 'hose regulations was at first wholly committed to the Govern ors, (a) or (by 16th Car. II.. c. 7) to per- sons appointed by them ; whi, b/ a laLp statute, (b) are styled « Naval Officers.' The creation of these officers is, therefore, cvi! («)7«bMd8lhWin.III..c.22,..6. 49d 1825. . Boyd V. Bog SETT. CASES IS THE SUPRKME COURT, clpntlv of uToat anliquity; beinir, in fiict, coev/l >vill. llie "system" winch they were intended, under the direction of the ^'ovem- ors, to watch over and protect. In tins ishmd, the first appointment ot a ^aval Officer anpears to have been made in 1743: (0 "and to have l)een re-idarly conti- nued down to the present moment. About twenty-one vears after the appointment ol a Naval Officer, a cnstom-housc was t-sta^ blished in St. John's; an.l the officers of the customs would, of course, pertorm many of the duties which had l»^'|«;.^„^^7y l^" charged solely by the Nava Officer; the preservation of the - Colonial System, as lell as the collection of the revenue, being comprised within the sphere «! fl'^-^"*/'" > ' But, without pretending to decide whethu the services of the Naval Officer, in addition to those of the officers of the customs, were actually necessary for the support of te Colonial System, it will be suflicient to mention, that the foimer was, neither here nor. 1 think, in any other of the colonies, "nperseded by the latter. The consequence of their co-existence was, that the merchants and ship-owners were obliged to pay two sets of fees for entries, clearances, registers &c.-namelv, one to the custom-house, and another to Uie Naval Officer To relieve themselves from this burden, the merclianls used every means in their power ; whilst, on the other hand, the officers of the customs and the Naval Officers were not slow ui availing themselves of every circumstance (c) Reeves's History of Newfoundland, p. 127. Mr. Reeversay. be could not discover whether the .ppon.«. „enthad beea contioaed by Captain Byng's ^T^mi but by an inspeclion of the booke, containing "«»««" of the%arl, proceeding, of the Government. I^fiad Chat .t has been regularly comiQuea iiom &««» j.ci.v» « the pteieot timet «« II >URT, ?inp:, in A\ct, cli tliey were f the(iovern- lect. In this of a Naval [Ml niatle in iuliirly conti- lent. About ointment of a 30 was csta- olHcers of the perform many fore been i\h' I Oflietr ; the I System," as L'venue, being of their duty, ecide whether cr, in addition customs, were iipport of tie suliicient to *, neither here f the colonies, le consequence , the merchants ;ed to pay two nces, registers, om-house, and ?r. To relieve the merchants kver ; whilst, on f the customs e not slow in r circumstance diand, p. 127. Mr. bellier tlie appoint- Bang's sucoesiori ; atftiniDg an account nment, I find (hat it b.t »-.:<«« of fees"" 1770 would certamlv. of itself h« im* «.i' I evidence of what the fees were hT i764°"£ut 3p ' • ' 481 1825. '•iJ If '4 mm 488 182S. HOGSBTT hoVM CASES ITJ THK 8UVREMC CODRT, ftuch a table, in conjunctioi; wltli an order from the Govirnor to take the same fees as were received in 1704, and ihe parole testi- mony of a very old officer of ihe customs, itlr, M*Kie, that tlie fees stated in that table had been received by the Naval Officer as long as he can remember, furnishes, at least, presumptive proof that the fees in 1770 were the«aweasin 1704. Indeed, the proof of old customs is almost necessarily confined to the evidence of facts done at a much later period; (rO and as the ^defendant has not attempted to prove that the fees stated in this table were not usually received by the Naval Officer in I70J, 1 apprehend that the practice of demanding them, after a positive order from the Governor, groun«led upon an Act of Parliament, to take no fcts but such as were taken in 1704, arid the acquiescence of tlie merchants in this de- mand, after they had been informed that the Waval Officer was entitled to no other fees than such as he bad been accustomed to receive in 17G4, may be deemed cowo/m5U'€ evidence that the fees in 1704 were not less than what are set forth in the table of 1770. Yet, though 1 am thus disposed to allow this table to be, as far as it goes, conclusive evidence of the fees usually demanded by the Naval Officer here before the 29th Sept., 1764, 1 am sensible that it cannot, of itself, establish the position, that he was at any time entitled to the fees he noto claims ; be- cause this table neither describes the vessel, (d) Sm T. B. S83. This \$ on9 of that cUss of caaes in wbich a Court is cerlainly bound to raise, rrom potlerior naaget a prMomptioo of an anterior right ; for long pos' MMioB must injura a title, if, after tha lapse of masy yfftn,Mid thedefseaaa of parties, objaofioQi abooii) ffftii arbiob nigbt have been aasirered at aa earlier period, tw vriiioli, if w«U lowided, wouia ittosl pfoUbijr iiav«B«^" MMMV Biadftt '■^B t cot RT, willi an order e smne fees as e pnrole testi- f llic customs, cl in that table ival Officer as shes, at least, J in 1770 were the proof of arily confined ne at a much defendant has lie fees stated ly received by pprehend that them, after a nor, grouncled [> take no fets 1764, and the its in this de- informed that d to no other ■n accustomed ?med conclusive 4 were not less ■ table of 1770. posed to allow oes, conclusive r demanded by the 291h Sept., nnot, of itself, e was at any mo claims ; be- ibes the vessel^ )f that cUss of cases raise, from potierior Ight ; for long pos' the l^seofmBSj i|tioQ» abooM prtvsii t esrlier period, an^ ^OMpij^ biV9 becS WEWroi'NnLANO. nor jho voifan'c, uf.on vl.idi ijjose fees arc payable ; and it c..n.se. 'I i A 'I '^^^illMt,^ CASES IN THE SUPREME COURT, not 80 plain as th« y ought to Imve been, they received opposite constructions from the public officers and merchants, corresponding to the the bins of their conflicting interests; and this led to those violent disputes between these parties to which J before adverted. Jn no part of the globe could those disputes have raged with more acrimony and fury than they did in this island, if we may judge from the Government books, which, up to the W»U», or Town nf Berwick.— The n«xt, in order of (ime, ie the 7th end Oih Wm. 111., c. 22, which rendere all shipi coining inlo, or going out of, eny of the plaul/i- tions, and Ud^og or unlading any goode or eommodiliee, liable to the aame rulee, visilaliona, aearches, penattiea, and forfellurea, a» they are eubjeotad to by the 13ih and 14th Car. II., c. 2.— Upon which I would obserfe, that, aa it treata only rtf Tcsieis coming into, and fting out of, the plantationa, it caonol inclnde veaaela going from one port to another of tho $ame plaalation ; beoause they can neither bo aaid to come into, or go out of, the plantation. And aince both atatutea are, in the moat marked manner, confined to Teaaela with goodi on board, their operation cannot bo eitanded to abipa in 6aMoi<. Nor can the 4th Gee. III., c. 16 (the only remaining atalute in which I bare found anything applicable to this question) be brought forward in support of the tight to make teaaela bound from one port to another of the same colony, and vcaaela without cargoea, take out clearancea; for it merely di- reota that ao goodt, wares, or merchandise whatso/r^, nvM bo abirped or ladeu on '^oard any yeaaol, in u^v a* Ih-? British coloniea or plantations, to be carried fron S» r \. > any other British colony or plantatiou, without ; ;> lrt^ ^o«..' or warraot first bad and obtained from the collector or ether proper officer of the customs. Indeed, this laat atatule aflTorda an invincible argument that vessels sailing from one port to another of the same colony are not included ? 1 the 7th and 8th Wro. HI., c. 22 ; for, since vessels go- i g fr^^. colony to colony did not fall within its proviaions, \! . 5» goinK from one port to another port of tho same «5o'ooy, amu/iv 'Ttiori, could not. But whether the 16th ."^eo. III., c. 31 8. 7, which privileges boats and other craft from making any entry or clearance at the custom- house, in the particular case there mentioned, can be con- sidered an admission of their liability to do so in all other cases, according to the maiim, expressio nnius est exchuio atterius, is a point which i am not now oaiied upon io decide. COURT, o Imvf! been, tions from the jorresponding ing interests ; |)ute8 between ore adverted. hoNc difli^iites ony and fury we may judge lich, up to the n«il, in order of !'2, which rsoders «ny of the plau|.i> It or oommodiliet, krcbes, penalties, by the 13th and )uld obterf a, that, and poing out oft »\» goiog Irora ona because ibey caa /, the planiation. it marked manner, rd, their operation Nor can the 4th taiute in which I iioition) be brought tke TCiiels bound )iony, and resiels for it merely di- re wAa/(o ' -y, nliall isiel, in u.K u( llU'3 ried fror , ' t r -^ '-f' rjtbout ' ^Ui. le collector or other d, this lait statute essels sailing from ' are not included r, since vestals go- ilhin its provision*, port of the same t whether the 16(b ;es boats and other nee at the custom - ioned, can be cou- > do so in all other to tmtia e$t excbuio low caiUd upon to NEWFOUNDLAND. year 1771, abound with remonstrancefl and rq>l.e«. m which the writers heap upon the autogonisls all the abuse which h^ a -rv n l.isiou, If u had not been necessary for mo to make use of the information they uffonl up.n the subject of the present controversy one i * """i' accordingly, only touch upon very considerable light upon it :— Jn 17fl« n number of the merchants' add essed a Le ~ V /'"/': ^«''"-' ^'^ »'-n Go- duct on," '"f'' '\'^ "°"^'^'»'» «f ^^'e con- duct of the ciistom-house oflicers, and naval 10 ve'ss'.!? ^^'"^ " P^^''-"''»r'y cJetrimema to vessel*, carrying on the Jishcnj." Thev much^bhf'' '"^'''^'. g*^»^'^-"y. and wtl^ much bitterness, against the 'jours of busi- ness observed, and the fees exacted bV those officers; but the ^rai;«me« of their Sua^Vl'; '"^"''^ 'T'^'"^ ^'•°'" «"^'^ -on- to ^hjf *^ "'*^' '.^'^^''' ^°^ •« '''s answer to this representation, the Governor states^ o be his opinion, " that to establish proper ^ rues and fe.s for a custom-house nth^ ^^ country, a material distinction ought to "auabfi^H ^''""T^i^"'^ «'">«' 'atvfully " who whhT -"^ ""'^^ ^''""^ certificates, - Zih.Tu ^^^'' T'""' ^''^ employed onl^ m the fishery, and trading ships carryiiJ on a trade created by the late great in! I'^TrV/fiT'^^'-^*^^'"?. ^" thisVounlry \ a«er the fishery is over." But his Excel Jency does not feel himself empowefed to tnake any such regulation8.-~There is. Ihere^ rS/!J^^TJ>^-^V-4elst^^ *««.ruies'^%;i;^--i:- ---}}- 405 1025. IIOOSBTT V. BUTO. J^ -w»V<"^*f-'* ^ i 'fas T825. UOOSETT V. Boyd. li CASES IN THE SUPREME COURT, ISavrtl Officer had, accordini^ly, been in the habit of charging; the same CecK u\)on both classes previously to the 'iOlh September, I7G1. But this proposition being once esta- blished, it will follow, as a direct corollary fronvit, that the Naval Officer was once en- titled to demand fees upon vessels employed in the fishery ; for the lOlh Geo. HI., c 37, ». 2, authorises him ** to take and receive *« such fees as he and his predecessors were « and had been generally and usually ac- *' customed to demand, take, and receive, •* before the 29th September, 1704;" with- out making any distinction whatever be- tween these fees, which, before that period, he had a strictli; legal right to demand, and those which he had not. From the passing of that statute, therefore, he was invested with a right to all the fees he had been ac • customed to receive before the 29th Septem- ber, 1764, by the highe&t title-deed under which a British subject can enjoy any sort of estate— an Act of Parliament-—'And it now only remains for me to ascertain whe- ther that right has been since divested by an authority equal to that by which it was conferred. In the investigation of this branch of the subject, I shall confine myself to the 16th Geo. HI., c. 31, and the .5thGeo. lV.,c.51, which are, if 1 am not mistaken, the only statutes which can supply even- the colour of an argument for supposing that any part of the fees which were secured to the JNaval Officer by the 10th Geo. 11 U c 37, have since been taken from him. The former of these is known among us by the name of Sir Hugh PaUisser's^ Act; and the striking affinity which exists between the sentiments ..— _„^^,l l..» KSm »r» Ilia •ina%vot> In t\\C VO.' CjVpiCBCJCVS UJ" mill 111 iisra ».. T-» f- monstrance of the nierchanls, uudthe enact- (C COURT, ly, been in the fees upon hotk ih Sei)tembei', fing once esla- lirect corollary r was once ea~ ssels employed leo. HI., c. 37, e and receive decessors were nd usually ac- !, and receive, , 1704;" with- whalever be- )re that period, \o demand, and Dm the passing 1 was invested ! had been ac • ie29thSeptenii- Lle-deed under enjoy any sort lament — and it ascertain whe- 2 divested by an '■ which it was ; branch of the self to the 15th Geo. IV., c. 51, itaken, the only ven the colour ^ that any part ed to the Naval 1^ c. 37, have The former of >y the name of uid the striking 1 the sentiments -laure** lo the rc" S and the enact- KEWFOUNDLANDL inents o,' the 7ll, sec. of that stntnte aflbrd. lea" Tr;' '"• ^^'T^ ^'-^ "'-i 'i-t of th. 15.1,7] on ''c"',7'I*"',"" ^^^'j"" shrps. or any boat or craft whatsoever e? *• fish -ri../ '"^ ''^''^" ''' ^^«««'^ an; '' ie s ft hi '^''^^"^l""^' «•■ "tber necessi! *'reffnlation,v;.i "^ «ny restraint or / . "> ""'^ 'o make anv imtw at iu^ " from thence and tl^. Tf ' ''^^""« «"* " manded, by any officerof h * *^''" * le particular and JZ^' 1' "l"' '' "'^ ■clanse to relieve li^i,*^*'' "^^ *'•« the Jis,.e,y from resttiiSl'd'-f'''^'^ ™ purs„it"„7t[jreT.JtCfM;;iJ: 4?jy 1325. -(^ l1 .1 'vl^iMSfg- '■ ■ mm m aWMeta i^ww.* vuxwJW"' 488 ■i,l ll' SI ' J 1825. HOOSETT BOYI). CASES IN THE SUPREME COUttt, the fees of the officers of the customs, and yet leave the Navaf Officer . I ^^^^'^^ ^^.^^:i fishing-fhips to make the same entries ana cea.4ces^t his office, and to charg^^^^^^^ same fees for them, as before : that such a constrnction would really contravene the policy, and, in a great measure defeat the utility of the statute, lo this I answer. That'^here words of an ambiguous and doubtful meaning are employed m an Act of Parliament. Courts of Law may. and ought, to look to the general intent and ^<^ope ^\}^* n o der to ascertain the true jnterpretal on of Uiem; but. where the words are cea, 1 cordially ^gree with an able and most ex- cdlent writer. (/) " that the R^S by "exposition of an Act to>^ ^"?"^"'=,f,'^.M^^^ "anv opinions respecting its policy, or utili- ..U^sCless repugnant to general convey «d;nce! than to the maintenance of a due ^rordination of judicial inteRPRI^ta- "TION TO LEGISLATIVE AUTHORIIY. U, ,hr„! ther"e is no doubt that a Na,a Officer is not an officer of the cnstoms, il is cenain (asMr «„.»« ha» very j»stly oteerved) that ir^ilot included i^jthUch^^^^^^^^^^ therefore, be affected by ii, wuaic ba?e quoted « t.ken ^'7,^" .^if^ttvlme o?£ the Statute of Frauds. P"]''^ •'J 'Vnother note, of equal CoUeCioa of Statutes p. 223 !» "^ h«' " .^, J « mtndation : with regard to «h'ch »opic oi a g " Us opfiratioB* upoa «n»j wxi^^"— • — --- - [\incoinenkiKe%* m^ mmmmmmmmmmmmmmm OURt, loms, and yet ty to compel e entries and to charge the that such a ntravene the •e, defeat the lis 1 answer, ibiguous and i in an Act of y, and ought, nd scope of it, interpretation Js are clear, 1 ind most ex- permitting the influenced by jolicy, orutili- general conve- nance of a due INTERPRETA* rHORITY." If, , Naval OflScer IS, it is certain observed) that se, and cannot, whatever the m. The passage I rable note of his on tie l8t volume of his loiher note, of equal c. 68(h (»ol. 2d, p. ss upon the Act, the gbest strains of com- ;opio of argument, it Court of Justice igqus6tioni»f policy iTtntaga ; but that I of the legislature, :utioD and effect, so* le established rules of [ending or eontrscting n..»e otitMUlilUyot NEWFOITNDLAND, intention and polici/ of it may be. But the legislature has, in the most direct and posi- tive manner, declared that he is not an offi- cer of the customs; for the 10th Geo. Jlf., c. 37, 8. 2, asserts that he is wo/ included in the 5th Geo. III., c. 45, which authorizes every collector, and other officer of His Majesty's Customs," to charge for fees in the manner there pointed out. And if he was MO/ includei aval Officer for a clearance is stated to be two shillings and sixpence; but in his bill of particulars the plaintiff charges five shillings for a y general clearance." The practice of granting "general clearances" to fishing ves- sels, both at the custom-house and in the naval office, grew, 1 am told, out of the clause m Sir Hugh Pallisser's Act, which ftas been recited and commented on by me. With respect to the custom-house, [the prac- tice being entirely put an end to bv the sth ^eo. IV., c. 61,3 it would be indelicate and do 1825. Hog SETT V. Boyd, '■>'a 't-^-mi iijiii III ■Mit— >i»^«»»»» 490 1825. UoOSBTTt r. BoTD CASES IN THE SUPREME COURT, improper for me to pass any opinion upott it: but with reference to the INuval Otticer* 1 am bound to declare, that there is notJang in that clause to sanction any such proceed- ing. It could, therefore, at most, be only binding so long as it suited the convemence of parties : and, since the defendant now re- sists the payment of it, this Court can have no power to enforce it. ^I'he plamtiB must henceforth charge the same fees upon tisii- ins vessels as upon other ships ; and can only obtain a judgment for £.3 35.4*^., which is the sum to which he is entitled under the table offees, which, for the reasons I have already detailed, I believe his predecessors >irere accustomed to demand aud receive be- fore the 29th September, 17(54,— which were confirmed to them and their successors by the lOih Geo. 111., c. 37, and the several statutes by which it has been continued, and, at length, made perpetual,— and which,.as 1 conceive, have never been taken away, al- tered, or in any degree affected, by any sub- sequent Act of Parliament. I 'I 1 \ JRT, NEWFOUNDLAND. 491 pinion upon ival Officer* •e is nothing ich proceed- ost, be only convenience lant now re« urt can have laintiff must } upon fish- ps ; and can jj.4«?., which jd under the isons I have predecessors id receive be- — which were successors by id the several tntinued, and, id which, as 1 en away," al- ii, by any sub- JoHN Broom, Esq. complainant, and John Preston and Thomas Stabb, respondents. Ui PON this important and very interest- ing case, the Chief Justice now delivered the following decree : — This case comes before the Court upon a petition, which slates, that the plaintiff, on the 6th of December, 1814, leased from the defendants a certain dwelling-house and ground in Water-street and Queen-street, for thirty years, at the annual rent of £84. That soon after the plaintiff had taken possession of the demised premises, he erected and finished two other bouses on the ground, in rear of his dwel]ing-lK>use, at an expense of more than £1000. That on the 3d of June last, a fire totally destroyed the two dwelling-houses erected by plaintiff, together with the out-house and cellar belonging to the original dwelling- house, which was then in his personal oc«. cupation, and which was also materiaUy injured by the fir«, and by the measures which were adopted to check the piogreaf of the flames. That under these circumstances the plain- tiff considered himself entitled to surrender his lease; and, accordingly, gave an imme- diate notice of his intention to do bo to Mr. Vallance^ the agent of the defendants ; but that the tender of the lease having been refused, the plaintiff is obliged to apply to this Court for an order to compel Mr, Valkmce to accept the surrender. AH the f&cts set forth in this petition are f»lly admitted by Mr. Valiattce; but he to- taiiy denies that they do, in any manner. The partial de- molitioD of premis- es by fire will not entitle a lessee to surrender his lease. AndlboDghanez.. ceptioooffireinhis covenant to repair will relieve the /es- Me from the obligaa tion to repair where the damage has been occasioned by fire, jret such an exception does not cast the onus of re- pairing upon the lessor during the continuance of Iba term. I 3 U ! I 'A n i l f .i i | l .— lil » 'i i»% 1825. Broom V. BTABB & PBBS'* TON. CAi(£8 IN TH£ 8UPBEME COURT, ftvoid the lease. And, assuming that they do not, he further contends, in the nature of a cross-bill, that Mr. Broom is answerable for the damage done to the house, which was built before the date of the lease; be- cause that damage has been occasioned by the wrongful acts of the plaintiff, 1st, in building,' without any authority from the defendants, two houses on the vacatit ground in rear of the principal dwelling-house, which might not have been at all injured by the fire if those buildings had not been erected : And, 2dly, in destroying the stair-case, ■window-sashes, and other parts of the house, for the purpose of removing, with greater case, the furniture and other property be- longing to the plaintiff. The points thus submitted to the consi- deration of the Court are so interesting to the public in general, as well as to the im-^ mediate parties to this suit, that 1 am ex- ceedingly anxious that the principleupon -which 1 profess to decide them should be perfectly understood ; and as the deter- mination of all cases in this country must depend partly on the law of England, and partly on our own particular customs, 1 shall, first, give a pretty extensive sketch of that portion of the English law of landlord and tenant which is applicable to the questions here raised ; 1 shall then review the leading cases in the records of this Court which have been referred to by the plaintiff in sup- port of his petition ; and I shall, afterwards, endeavour to deduce from those sources the principle which ought to guide my judgment ou these points. At the Common Law, lessees were not answerable to landlords for accidental burn- ing, or for any other injury to the premises resulting from accident — " Fortuna et ignis I •a (( tt )URT, g that they he nature of answerable ouse, which lease; be- casioned by atiff, 1st, in y from the catat ground lOuse, which jured by the sen erected : ! stair-case, af the house, with greater property be- to the consi- nteresting to IS to the im-" bat 1 am ex- inciplenpon m should be I the deter- ountrv must England, and tomSf 1 shall, :etch of that andlord and le questions ' the leading Court which intiff in sup- , afterwards, i sources the 9 NEWFOUNDLAND. "veUitijusmodieventus inopinati omnes ienen^ "tesexcusanr (a) is the earl v rule deliver^ ed by the writer of Fleta; and the reason assigned for it by Lord Coke is, that •• as " they (b) came in by the act of the lessor, ^^ he might have provided, upon the making of the lease, against waste ; and he that ^ might, and would not, provide for him- !!r 'w**;® Common Law will not provide 'tor. (c) What the common law would not do, the statute latv, however, afterwards did; for the statute of Marlebridge, c 24 renders lessees for life, or years, responsible for waste ; and the statute of Gloucester. c. 6, which was passed about ten years after mcreased the damages for waste, and added a forfeiture of the thing wasted. Thusstood the Jaw for nearly four centuries and a half • but the more ancient law respecting casual hres was restored by the 6th Anne, c. 81 which exempts all persons from actions for accidental fire in any house, except in the case 0/ special agreements between landlord and tenant. Under this statute it was lon«- considered doubtful, whether a covenant tl repair generally extended to the case of tire and so became an agreement within the statute ; (d) but in Bullock v, £>ommitt (e) this questic. was directly brought before the fin"n *^'5^^ ^^''^'^' ^"^ '■' ""^^ then hnally settled that a general covenant to repair did include the case of fire And though an exception of fire will protect the (a) Flela, lib. 1, cap. 12. (,d) Har. Co. Litr. 67, a. K.];H»7t,;Yoi:"'2: p. 422^'' '" *"' *^""" ''* ^""^"'^ 493 1825. Broom V Stabb Hi Prb4» TON. if mmmK^XSaSSt Ml 'V, I h m t ;i 404 1825. Broom «. Stabb & Pres- ton. CASES IN TBR SUPREME COURT, lessee from liis covenant to repair, yet he is liable under a covenant to paif rent, noi^ withstanding the premises be burnt down and not rebuilt bv the lessor. Jn one m- stance, indeed, where the premises had been insured by the landlord, an/* their value received from the insurance-oihce, the chancellor gi anted an injunction to restrain the lessor from suing for the rent until the house should be rebuilt; (f) but it has since been determined, that there is no equi*v m favour of the lessee of a house liable to repair, with the exception of damage by fire, for an, injunction against an action tor payment of rent upon the destruction of the house by fire, (g-) Now, the plaintiff is a lessee liable to repair, with an exception ot damage by fire ; and, therefore, by the law of England, he continues liable upon his covenant to pay rent, during the residue of his term, without the possibility of obtain- ing relief from a Court of Equity. Let us, then, next inquire, how far the /aw ofNmJoundland differs, in these points, from the law of England ; and, to this end, let us first examine all the cases upon record which seem to be capable of imparting any inform- ation upon the question. These are, I think, only three (A) in number. The first was an action for rent, brought by Mi;s. Carrott at-ainst Dr. Carson on the 7th December, 1818. Jt was there admitted, that the house for which the rent was claimed had lieen wholly destroyed by fire ; and several witnes- ses proved, that such an event was consider- ed, by the uniform custom of this country, (/) Amb. 620. (a) 18 Ves. 115. ... . ^ ■ (A) Vui.r !.«»« heen cited bv ihe plaiirtiff ; but the prin- cipa'l poiol in one of ihem is foreign to Ihe matter bere m diipute. rk I lURT, Ir, yet he i» I renlt not* l>urnt down Jn one in- emises had , an'» their :e-otiice, the a to restrain jnt until the tit has since no equi^v in se liable to damage by m action for cction of the plaintiff is a exception of J, by the law ble upon his he residue of ity of obtain- Ly. )w far the law e points, from lis end, let us record which 5 any inform- 3 are, I think, 3 first was an Mrs. CarroU h December, that the house ed had heen everal witnes- W0s consider- tbis country* rtiff; but AeiKin* h« matter here ia ^'EWFOUNDLANDp to cancel the lease so entireltf that the landlord wor'd hate a right to reenter, although the tessce should wish to retain the land. In gi- ving judgment for the defendant, ihe Court appears disposed to sustain the custom ; but the particular ground of the judgment is* that the lessor had done that which was equivalent to an acceptance oftlie surrender of the lease ; and had, thereby, estopped him- sel/'Jrom contesting t/ie validity of the custom. J Ins case, however, was soon after followed by that of Cowell ^ Lewis v. M'Jbraire, where the Chief Justice expressly held, that there was an usage in this country which ex- empted the tenant from the liabilty to pay rent, and enabled him to surrender his lease after the total destruction of the premises by fire. And in JSewman v. 3/ca^Acr, which succeeded very rapidly to the lasl, Mr. l.-■ 1825. BaooM V. STABD & PRBS< TON. CASES IN tHE SUPREME tOVRt, thus adds to llic risks ofjire, (t) and thereby increases the charge of insurance, — and that it may lead to ill-founded suspicions, and distressing prosecutions for arson. Of its tendency to produce the last of these evils, a remarkable example has fallen under my own observation, in the case ofa person who was tried before me for his life upon a charge of having wilfully set lire to a house, which turned out to be so thoroughly groundless that, 1 believe, every one present at the trial must have been convinced that the unfortu- nate man would never have been placed in that painful situation if he had not happened to be the lessee, at a very extravagant rent, of the premises which were accidentally burnt. That a custom, pregoani with such consequences, was not entitled to favour from the Court must, I think, be obvious ; and I confess that 1 was, therefore, surprised upon examining Mr. Forbes' s notes, to find that he \v\A adopted it upon evidence which seems to be very loose and inconclusive. Some of the witnesses assert, that a fire cancels the lease so entirely, that the lessee cannot retain it if he even wishes to do so ; while others as stoutly maintain, that it is optional with the tenant to surrender or not, as he pleases. But, surely, these are not consistent customs ; and, therefore, cannot both be good. And, supposing either of (i) The advantage of fire-insurance is, that by dividing the loss among a number ot persons, it prevents the ruin of individuals. The oljection to it is, that it holds out to wicked characters a templatioa to insure their premisai beyond their value, and then to burn them, with the hope of defrauding the insurance company ; and between ibe benefits and evils thus resulting from the practice, some have doubted bow the true balance stands.— (Marsb. «n lo. vol. 2, p. 785.) Can there, then, be found an advo- cate for a custom which is open to the tame objection thit firc-iniurancfis are, witboat producing any snare of iU pvbliebene/it. with whieb tbeyiare attended ? OURt, I and thereby ;e, — and that »picions, and rson. Of its 'these evils, a n under my a person who ipon a charge lOUse, which ly groundless nt at the trial , the unfortu- een placed in lot happened IV a g ant rent, accidentally ani with such ed to favour , be obvious ; 'ore, surprised notes, to find idence which inconclusive. [, that a fire liat the lessee \es to do so ; tain, that it is render or not, these are not refore, cannot sing either of I, that by dividing prevents the ruin )at it boli]a oat to ire their premisai em, with the hope and between the bfl practice, tome nds.— (Marsh, on e found an adve- vme objection thtl any ahare of <»« ded? them to be NEWFOUNDLAND. 1 -S- suspect it ought to have ueen connned io buiUtimr leases; to which it prohably owes its origin ; and, in its appii- cation to which, it is not open to the same Objections, or, at least, not in the same de- gree (A) that I have pointed out in regard to other leasee. In admitting it, therefore, upon such vague testimony, and without any qualification as to its extent, Mr. Forbes appears to me to have acted under the influence of a bias created by the calami- tous events of which he had been a recent spectator; and. perhaps, the astonishinff load of business which pressed upon hira about that period made it impossible for hira to examiae this subject with very great at- tention. At all events, if he has fallen into a slight error, every one who has had an op- portunity of seeing the proofs which the re- cords of this Court supply of his genius, application, and integrity, will be inclined to say of u what a candid critic has said of one defective line in che works of a beautiful and most distinguished author:— that it ought to be covered by the thousand excel- lencies which surround it—" Nee est notan- ausunusintotmilUhusr Fortunate, indeed (and, in particular allusion to myself^ I will add, beyond expectation fortunatey) will the successors of r>^r. Forbes be, if their mistakes shall not greatfy exceed the number of those committed by him» With this opinion of mr.l^orbess merit; and under a strong con- viction, that the inconvenience resulting from uncertainty in rules of law is far greater than that which is occasioned by a few de- jects in them, 1 long ago declared an inten- (*) Became it can rarely become the interest of lb* person who baa expended mooey on boiiUioKS to burn "'=ui mureSy for the sake of fcIieTiDe bimself'fiom th» V»ymeDtofgfound.rent. ' —•" iion ma 3r 497 1825. Broom • Stabb de pBBa« TOM. r li -4mmmi^' r » ii i» nn mm 39 M i^ Ml ; 490 BnooM V. BTAB9 & FKBI* TON, CASES IN THE SUPREME COURT, lion (« adhere rigidly to his decisions ; and. accordin'My, I should have afforded the plaintiff the relief heclaimB from the Court without the smallest hesitation, if he could have brought his case within the letter, or spirit, of any of the cases he has cj ed m sSpport of it. But those cases all differ from his in thi.^ important particuar-viz.. that the fires which gave rise to them lad totalf!/ consumed the houses ; whereas the house which forms the principal subject- matter of the plaintirs lease has been only partially injored ; and that, too, as the der fendants insist, either wholly or chiefly, through the plaintiff's default. And. granting that the total annihilat{on of the premises ^ill annul a lease, ^e cannot. I imag;"!. deduce, as a necessary corollary from this proposition, that a partial injury m"«t j)^ Attended with the same effect The real question, then, is. does the custom of the Country oblige a lessor to accept the surren- 5er of the lease of a house which has re. ceived some damage by fire? And w th a Tiew to the determination of It. Beveral wit- liesses have been examined before me. With a single exception (0 they all state, that no case in any inspect like the Fesent has ever come within their knowledge ; and their ideas concerning the respective rights and liabilities of the parties to this suit are. con- sequently. excessively crude; for though they all concur in saying that, ^s lessees, they would have tendered the surrender ot (/) lo that case the witn«a was the leisea of exIen.W. wd valuable premises which were consumed by fire, wilh Se exception of a small part of. comparat.f ely. very tj- ii«. lalue Under these circumstances he tendered thi Mrfender of hi. leas*, ^hich was accepted by the lessor. ■":?__'...:•«--•■•'-«»'• consideraiion that the /e«ora«d W wefr'J*r"Vnd 6ro/Aer what can on. .olitary «• •tanc. oi tbi. kind amount to T «( u i< >URT, isions; and, ifTorded ihe ni the Courts if he could le letter, or lias cited in ses all differ ticular— viz., to them had whereas the :ipal subject- las been only 0, as the Ae-i ', or chiefly, ^nd, granting the premises t, I imagine, iry from this mry must be ct. The real ustom of the ept the surren- which has re- And with a it, several wit- iforeme. 'With state, that no •esent has ever ge ; and their ive rights and 3 suit are, con- e; for though Lhat, as lessees, e surrender ot i letsee of exIeniW* gamed by fire, wilb paraiif ely, very «ri- ic«B he tendered tni epied by the lesior. ,11 «bal the leitor wi can one aoiitary >o- NEWFOUNDLAXO. 499 theirlease under l\[r. 2?m*/n 5 circiimstan- 1825. cet«, yet the majority of them acknowledge r _ _^_. that, as /mo/*, they would hdve contested Broom his n-ht to do it, Js not this, then, the ». strongest possible evidence, that there is Stabb * Pbm. neither usage, nor recognized principle, to ^°'** govern the present case? But the argument ag.iinst the custom which the plaintiff has attempted to set up does not, by any means, stop here ; for the witnesses whose testimo- ny he most relies on declare, that a small degree of damage to a house from fire would not, in thoir opinion, cancel a lease, although a considerable injury would ; and that they are utterly unable to define the quantum, or proportion, of damage which would entitle a tenant to surrender his lease. The custom, therefore, in fact, amounts to this :— That some damage (without ascertaining how much) will entitle the tenant to surrender; and some damage will not. Now, if has been well observed by an eminent judge, (/») •• that every man who contracts under an "usage, does it as if the point of usage "were inserted in the contract in terms;** and I will, therefore, suppose, that the fo'l- lo wing clause had been inserted in this lease z " Provided always, that, in case «ome damage " shall be done to the premises, the lessee "may surrender; but it is, nevertheless* " understood, and mutually agreed on, by " the parties, that the lease shall continue " to be valid, and binding upon them both, " notwithstanding s(me damage shall, at any. " time, be occasioned to the premises by fire." Is there any man who does not perceive that such a clause would be contradictory, uacer*' (m) Lord Jtfani/SeW-inlhe case oi Maion v. SkwrM 1 I m 'H W^ i (f (I . t m ftOO ) 1825. Broom V. •tabs & Pubs* TON. CASES IN TMR SUPREME COVRT, Uin, and absurd ? And must not a custom of the same nature be equally so? Mr. Forbes, we have seen, has supported a cus- tom which enables the tenant to surrender where his house is entirely burnt ; and if there had been a custom that any burning, or a burning to a dejinite extent, would con- fer the same right upon him, I would also have sustained it, however unwise J might consider such a custom to be; but a custom which must drive parties into litigation, without furnishiug the Court with a rule by which their disputes ought to be adjusted, must deserve reprobation instead of counte- nance; and 1 accordingly feel myself obli- ged, after an attentive, and even painful, consideration of the circumstances of this case, to adhere to my original opinion, that the plaintiff cannot compel the defendants to accept the surrender of his lease. 1 come now to the quGSt'ion o( the liabiliti/ to repair ; and I shall commence with the two arguments by which the defendants strive to throw that burden on the plaintiff. By the first, the defendants charge the plain- tiff with malfeazance, in erecting, upon the vacant gronnd in rear of his house, two other houses ; to which conduct, on his part, they dscribe the injury the principal house experienced from the fire ; and they con- tend that he is, consequently, answerable for it. But I apprehend that, in the absence of a direct authority to erect those buildings, the acquiescence of the defendants in their construction would have been abundantly sufficient to exonerate the plaintiff from the responsibility which the defendants seek to cast upon him ; for it would be most unjust that they should stand by, and quietly per- ^u uiwn «A «>rprti hnildinffs. which misrht have added considerably to the value of their OCRT, lot a custom so? Mr, orted a cus- to surrender irnt ; and if any burning, would con- [ would also ^ise J might )ut a custom litigation, ith a rule by- be adjusted, d of counte- myself obli- even painful, ances of this opinion, that e defendants jase. yUheliabiliti/ >nce with the i defendants the plaintiff, rge the plain- ig, upon the 1 house, two ;, on his part, ncipal house nd they con- , answerable n the absence ose buildings, dants in their L abundantly itifffrora the [ants seek to e most unjust quietly per- ch misrht have — ^ alue of their KEWFOUNDLAND. property; and afterwards, upon the acci* dental burninj; of these buildings, turn round upon him, and complain of their erection as a grievance. In point of fact, however, there is no necessity to resort to the doctrine of implied authority ; because, in his cove- nant to repair, the plaintiff has agreed to mamtam, and deliver up, in good order, as well the dwelling-house then built, as also " all such erections and buildings as may be •• made upon the demised premises;" and it would be ridiculous that he should bind himself to keep those future buildings in repair, if the lessors were not likewise bound to permit him to erect them. The first po- sition of the defendants is, therefore, alto- gether untenable; and their second does not appear to me to be a much stronger one. They contend that the plaintiff is, at any rate, responsible for a part of the da- tnage; because some of that damage was done by the attempt to remove the plain- tiff s lurmture when the adjoining houses were on fiie, and when the flames had actu- ally communicated to a portion of the pre- mises in which the plaintiff resided. But I think that, under these circumstances, the fire ought to be considered as the causa CAUSANS of the whole damage, within the true spirit and meaning of the exception of the case of fire in the plaintiff's covenant to repair; and that the distinction between what the Jire did, and what it compelled the plaintiff to do, ought not to be allowed J do not say, generally, that it never should - but with reference to the particular facts of this case, 1 am of opinion that it should not It yet remains for me to decide, whether the onus of repairing the house does not fall upon the dpfpnrlanta • £•'»#.<> *U-, - . . - .«.--, t:-tii->.c liicrc auCMlS CO De a pretty general impression upon the dOl 1823. Broom V. Stabb & Pr^« TON, 1^1 '3' i'< 1 1 m vm '^' 502 reen const icte ^P0« subtile and minute d^f^'^^^^^^tira applica- be found diffiouli m their F^cticai app tion, even -here the^ac s of a c^^^^^ «laip nnd undisputed ; bul wneic ^^ ,^ I'enderTd doubtful and unceri.m, .».^-.- (a) Ex^pwt* Wa»p«r, 17 V«". -tO*- "t :OURT, Broom, Juni recover from 5s. I Id.*, and, upon it, tl*® ; more trouble to decide. It r a partnership md the defend^ [) assert, that a •dly be brougKt .ord Eldon has gone to this o thin, that I shed upon due rader agrees to labour in the wen in propor- a certain share, irtner ; but if he e profits them- a partner. It is ; his Lordship. A man stipulates labour, he shall it in the business, ley, even in pro- ro of profits, that irtner; but if he )rotits, as such, account, though he capital, he is, artner." R"'ej ructeluponsuch tions will always practical appbca- is of a case are t where these are nceriain» u«rv"B- 404. NEWFOUNDLAND. th6 ignorance of parties in' framinsr tbeii- contracts, or tliroujiih their dishonesty in at- temptnii? to conceal, or misrepresent, the terms of them, it becomes almost impossible tor the human understanding to surmount the difficulties which then present tbem^ selves on every side. And, unhappily, i>- Horance has concurred with fraud in casting a deep veil over the transaction which I am now called upon to investigate ; for, as waa justi) observed in the course of the ar^-u^ ment, the original a^-reement waa so loose tliat It must almost necessarily have led to controversy between parlies who were evi^ denily not aware of the rtal extent of their respective rights and liabilities under it • aad, insiead of a frank, candid, and inge- mious disclosure of all the material facts of the case, there has been a shameful attempt 1 to embarrass and mislead the Court by op- .posKe and confiictinaj statements. The plamtifTs rely entirely on the testimony of the inso vent; and as the painful task has 'Jevolved on me of pronouncing (hat either je or the defendant must have been guiltr Pfvery gross falsehood, 1 shall first advert «) some circumstances v;Iiich,in my opinieir* etract considerably from the credit oi jailer. Immediately upon the declaration Ot his insolvency, the trustees to his estat© ^doptcd a course of proceeding which indi. tafed, m the strongest manner, their general Hisapprobation of his conduct, and their total want of confidence in his veracity The tatural tendency of this treatment was to lespire him with an apprehension that bis certificate of discharge would be witbheld i «Dd it would probably occur to him that •lic'i an ^vil might be averted, if h« could rffly contrive to conciliate his creditoMiby a?crea«ing tiieir divided heygudHum^Aylf £05 1826J Trij^ti-e* of VV ALLKft V. Bkoom «! I >h M m I ■\ |.^ f 1 fioe 1825. Trutltet of Wallbr «. Bboom. •AtH IZf TUB fUPBEME COURT, expectation. Thus greatly exposed by lis situation lo the influence of corrupt motives, he was brought before me by the trustees to give evidence respecting his partnership with Broonit before he had obtained his certificate^ upon a suggestion that he was about to depart on a distant voyage, without any in- tention of returning to this country for a long period ; and to his statement of his dealings with the defendant an answer has been given, upon oath, by Broom, denying most positively some important points in Waller's deposition. Now, it is stated by the highest judicial authority {b) of the pre- »ent day, > that ** a defendant in a Court of "Equity has the protection arising from his " own conscience in a degree in which the •" law does not aftect to give him protection. ** If he positively, plainly, and precisely «* denies the assertion, and one witness only •* proves it as positively, clearly, and pre- ** cisely, as it is denied, and there is no " circumstance attaching credit to the asser- " tion, overbalancing the credit due to the " denial, as a positive denial, a Court of " Equity will not act up»»n the testimony of " that witness." Had Waller, then, been Eerfectly free from any taint of suspicion, is testimony, opposed, as it is, by the po- Biti'fe contradiction of the defendant, would not be sufficient to ground a decree upon; unless it either carried internal evidence of its^ruth, or was corroborated by other wit- nesees. "With respect to the former, 1 con- sider the one statement just as likely to be ti^ae as the other ; because 1 cannot perceive t^t a partnership would have been more advantageous to Broom than the connection he admits he formed with Waller ; and the evidence of Mr. Vallanee (the only pther "'^. (() totd £Idoo, 8m « Vm. J41D. 184. a I «? lURT, DOsed by 'uis upt motives, le trustees to tnership with is certificate^ ras about to Ihout any in- :ountry for a ement of his I answer has oom^ denying int points in t is stated by >) of the pre- in a Court of ising from his in which the ra protection, ind precisely i witness only arly, and pre- there is no t to the asser- it due to the , a Court of B testimony of r, then, been : of suspicion, is, by the po- mdant, wouM decree upon; at evidence of I by other wit- former, 1 con- as likely to be annot perceive ive been more the connection idler; and the he only pther 184. MEWPOUNDLAND. witness adduced by the plaintiffs) is not, I conceive, mconsistent with the truth of either statement. On the o»her hand, it is so impossible to reconcile some of the as- sertions of Waller with the testimony of Mrs. Broom, that I cannot give credit to them, unless 1 was convinced that she, as well as her son, had committed perjury I feel myself, therefore, bound to reject many parts of Waller's testimony, and to adopt the facts admitted by the defendant as the basis of my judgmt t. It appears, then, by the admission of Broom, that fFaller had, in the summer of the last year, about £200 worth of shop goods in his possession; and believing that he could procure a larger quantity on credit, he mentioned to the defendant his intention of hiring a small vessel, then in the harbour, for the purpose of carrying those goods to some of the settlements on the coast, and exchanging them there for the produc tions of the island. To this scheme the de- lendant suggested, as an improvement, the propriety of/ii«rcAa«'»^ instead oi chartering: the vessel, at the same time professing hit readiness to becom- h joint purchaser of the vessel, and to convey such goods in her as the insolvent could procure, to the fFesiward Tr*ere he could, bj his influence with his friends, materially assist in the disposal of them, on condition that he should have half the profits arising from the speculation 1 he vessel was accordingly purchased for£l20 partly for cash and partly on credit; and £45 were immediately advanced by the defendant towards the payment of his half of her. Goods, to the value of more than £600, were also put on board her by Waller ♦ f'l^'o.^". ^>^ ^^^""^ August, the defend^; ' .ciior. jonnsupon th^ voyage iKhich had fi07 1825. TrntteM of Waller BrooMii I I ( :i, 'ft iir> E' 'it 108 CASES IN THB BUPREME COURT, 1835 been agreed on between him and the insol. p ^ *^ ^ , vent. Very soon after his d?parUire, howe^ Trwiwi Qf ver, he epcountered a violent gale of wind ; WALLgR and in consequence of his being exposed to •• a great deal of rain, in his exertions to save .]|R9QS. jjjQ vessel, he caught a dreadful cold, which entirely deprived him of the use of his limbs, 6nd compelled him to return to this port as quickly as possible in quest of medical aid. This misfortune obliged Waller to go in »iace of hrama ; add he actually made two trips without entering into any new arrange'* inents with the defendart, and without its being settled between them bow far the original dgreement was to bo adhered to; Nor was any demand made by the one upon the other until after Wallers insolvency, when Broom interposed a claim for freight v and the trustees, thereupon, instituted the pre- sent proceeding to force him to contribute, as a partner, to make good the loss which had accrued upon the speculation. Two questions, therefore, arise in this case^ viz., 1st, Is the defendant liable to share in this loss?— 2d> If he be not, is he entitled to freight? ' ■ It the solution of the first question de* pended merely upon the fact of the exist- ence of a partnership, without regard to the na(ur« of it, 1 should have no hesitation in declaring that he is liable ; because there was here a clear agreement for a share of the profits, assnch; and the LordChanceUcr of England has said, in the passage I have already quoted from him, that, as to /AiVd persons, such an agreement does constitute a partnership ; and a long string of cases might easily be cited in support oi this dictum^ But I apprehend there is an essen- tial difference between a partnership^ as to ^itd^ptrsonsimda partmrship beiwe«i^ th§ I URT, i the insol* Uire, howc* lie of wind ; exposed to ions to save cold, which )f his limbs, this port as aedical aid. r to go in y made two ew arrange^ without its ow far the adhered toj he one upon Ivencyt when reight ; and ;d the pre^ ) contribute, i loss which ition. Two is case^ viz., share in this entitled to question de* of the exist- egard to the hesitation in ecause there or a share of d ChanceUct ssage I have ^ as to third es constitute Dg of cases port oi this f is an essen* lership as to beiwem ih* NEWFOUNDLAND, parties ; and that this distinction is strongly applicable to the circumstances of the pre- sent case. The person who conUacts with a trader for a share of his profits, contracts for a part of that fund to which bis creditors look for the p^^yment of their debts; and this, through the favour thai is always shown to commerce by our Courts of Law, has been deemed sufficient to impose an obligation on such person to pay for those articles from which this profit was expected to result. In other words, a contract to that effect has been implied between them, found* ed on the consideration that he who lesi sens this fund on which the creditors de- pend, ought to make good any loss they may experience in consequence of the de- ficiency of such fund. This is a partner- ship, therefore, created upon principles of natural justice, or, at least, of conrner- cial policij, Iwiihowi reference to the views or intstUions of the purties any further than as such views aft'ect the public interest; and, consequently, such a partnership is ex- tremely distinct from a partnership between the parties, which cannot exist contrary to their intentions ; because it is founded ex- clusively upon their engagements with each other* It has been said (c) to be very diffi« cult to find an exact definition of a partner- ship ; but 1 think it may be accurately de- fined to be A PARTICIPATION IN PROFITS AND LOSSES, if we attend to the distinction, that in partnerships as to strangers a participatiori in losses may result out of an agreement to share profits only, contrary to the meaning and intention of the parties to that agreement; whereas a partnership inter se can only lake place w^ere it is the manifest intention of the parties to share both profit and loss : which (c) Ib Wniugh t; darter, » Beir. Bi»cit./ 2484 60d 1625. Trmtfes of WALLfeft V. Broom. . <9ik '1 U Ft U *l A *. 7i > ¥i\ ■I Hi $10 1825. Truitaas of Waller V, Broom. CASES in THE SUPREME COURT, intention may either be express, as where A promises B, that if he will employ his capi^ tal in a qertain way, and allow A half the profits which shall arise from such employ- ment of it, A will bear half of any losses that may result from the adventure; or it may be implied from there being a joint ownership of the partnership stock. In the case now under consideration, the insolvent himself allows that there was no agreement about losses ; and, therefore, if my ideas on this subject are correct, there could not be a partnership, as inter se, between him and the defendant, unless there was a joint in- terest in thjB property which was the ground work of the speculation. And there is one circumstance which thoroughly convinces me that there was no joint ownership of any part of the property except the vessel. — On the 8th August, 1824, the very day be- fore the defendant left St. John's, the insol- vent furnished Broom with an account which contains a charge for the purchase of the vessel, and seems to convey a full statement of the dealings between the parties, but yet takes no notice of the goods which had been procured by Waller-^ and, contemporane- ously with the delivery of this account, the insolvent also gave the defendant an invoice of those goods, which are therein stated to have been shipped by William fValler, and not by Waller ^Broom. Now, these docu- ments are, I apprehend, true expositors of the motives and intentions with which the parties embarked in the concern ; and as, they were drawn up at the very inception of the agreement, and before it had become the interests of either to *misrepresent the conditions of it, 1 deem them entitled to im- plicit credit. And what do they prove? Most clearly. 1 think, that both ikf'cUkr ^ URT, as Inhere A oy his capi-» I A half the ich eraploy- y losses that ar it may be t ownership e case now rent himself ement about leas on this lUl not be a !en him and is a joint in- } the ground there is one y convinces rship of any the vessel. — ery day he- 's, the insol- :count which rchase of the ill statement ties, but yet ich had been ntemporane- account, the nt an invoice in stated to , frailer^ and , these docu- ixpositors of h which the cern ; and as, inception of had become epresent the ntitled to im- ihev prove? ith j^'tUkr 4r I NEWFOUNDLAND. Bi-oom considered tlie goods which the lat- ter was to dispose of as the separate property o*^the former, and not as i\\e\v joint property. It IS true, Waller has told us that the invoice was afterwards altered, at the request of Broom, so as to express the interest which he claimed in the goods; and an account has smce been prepared by Waller, in which Broom IS debited with half the supposed value of the goods. But the story about the alteration of the invoice J totally disbe- lieve; not only because it is denied by Broom, and is at variance with the testimo- ny of his mother, but also because 1 am per- *"aded, that the identical invoice in whirh frailer pretends that the alteration was made 18 now among the papers which have been shown to the Cour^, free from any such alte- ration and interlineation as he represents himself to have made in it ; and the differ- ence in the mode of making otrt the two ac- counts affords a strong argument that broom's situation was not originally regarded by Waller in the light in which he has subse- quently endeavoured to exhibit it. 1 am therefore, of opinion, that Waller had no right whatever to call upon Broom to parti- cipate m the loss which has grown out of this transaction; and that, consequently his trustees, who are merely clothed with the same rights which before belonged to him, cannot do it. Jn the determination of the second point in this case, I shall be wholly guided by r^ ' c «J'f7® fi^'^^ ^^'«" ^^^ ^eai intent tionsoi Waller ^ Broom when the connec lion between them commenced ; and I shall therefore, state the terms of their contract according to my conception of them, 1 do. ttlen. most firmlv holi^n^ «u>.« At.- .. ..' Fere to be procure^ by Wa//«r, and were to «11 1025. Trill tees of Wallur V. Brooh* I ':j^r k\% h/^ I ii 1826. Triiatees of V. Sroom. CASES IN THE SUPREME COVBTt continue his separate property ; that the vessel was to be purciiasetl by the two, fitted out by them at their joint expense, and be- long to them in equal moieties ; that slid was, afterwards, to be employed in the trannportation of Wallers goods to several parts of the western coast of Newfoundland ; that, whilst so employed, the charge of navigating her shoidd be borne and defrayed out of the proceeds of her cargo ; that Broom should assist in navigating the vessel and in selling the goods ; and that the com' pensation for his interest in the vessel, and the reward for his services, should consist of half of the net profits of the adventure. U p- on the return of the vessel to St. .lohn>, and on Broom'* being rendered incapable, by ilU ness, of performing the service required of him under this contract, Walter might, un- questionably, have insisted upon a corres- ponding change in the terms of it, if he had chosen to do so; but, without pretending to know the exact motives wliich influenced him, it seems to me clear, that he waved his right to do it ; and, as no new agreement was entered into relative to (he second voy- age, I tliuik that it must also be governed by the tirst contract. The conclusion, then, that I draw from this view of the case is, that Broom cannot claim freight for either trip; that the whole expense of the vessel during the period she was so employed, ought to be defrayed out of the proceeds of her several cargoes ; and that Bi'oom must pay to the trustees the balance of half the amount of her prime cost and first out^fit, after dedacting the £46 already advanced by him on account. Jt can hardly be ne- cessary, for me to add, that I Gonitder the veMel SB belon!ring, in equal proportions, to Brmm and the triistees ; and \hat, if any 5 COURT, rty; that the the two, fitted lense, and be- je» ; that slid loyed in the kIs to several evvfonndiaad ; he chari^e of B tmd defrayed cargo ; that ling the vessel I that the com' I he vessel, and uld consist of venture. U p' St. .Iohn>, and apahle, by ilU ce required of Her niiglit, ,im- upon a corres- )f it, if he had pretending to ich influenced t he waved his ew agreement e second voy- be governed [ iclusion, then, f the case is, >ight for either e of the vessel so employed, le proceeds of t JBroom must e of half the d first outofit, ady advanced hardly be ne-* 1 consider tht 3roportioaB,>M i |hat, if aof NEWFOUNDLAND. iTrciglit lias beon earned by her since the termination of Wallers second voyage, it must, in like manher, be divided between them. 513 1825. Neal Rcddy against Trustees of James IJackett. 'ER Curiam. The plaintiff 6eeks> by the pr<*sent suit, to establish hiw right to a divi- dend upon the sum of £5,818 \s. 3d., which he states to have been due to him by the insolvent at the period when the insolvency ivas declared ; and the defendants resist this claim, upon the grounds that there was ei- ther i\ partnership between the plaintiff ^ni\ 'he insolvent, or that the !»laintiff earned on an extensive trat' n uiis is- land in the name, and through the agency^ o( Uaclfctt, It has become my duly, there- forf, to inquire what was the real nature of the connection which subsisted between these parties; and foi this purpose I have examined, with close attention, the nume* rous papers which have been laid before me. From these, together with the parol evi- dence which has been adduced by the de- fendants, 1 collect that Hackett first came to this country in the spring of 1816, with a Mr. Burke, who wai jointly entrusted with him with the management and sale of a quantity of merchandise belonging to ^eddy 4" Varschoil, who had joined in thia specu- lation, though each of them was carrying on a separate and distinct business in Irelandfj^. That Hackett feturned in the antumn of the same year, carrying with him a cargo of the produce of Newfoundland s and that ISieddv. being pleased with the result of his fifsi 3t If A supplies " *Hh money auU c'«dil to carry oa iradp, upon ih« ooDdiijouofrccAi?- ing ■ proportion of lbs pruliu of lueb trade, A cannot, upon Ibe bankrupt- cy of B, parlici* pala in • di? idcnit of hit effects until Ail tha other ere* dilors shall have been paid the full •iDouDi of B'a debd to them. \i\ .. ,«'■ fM ,jr '■■■!i 514 / 1825. . Rkddy V. Trustee! of UACKBTT. i . CASES IN THE SUPREME COURT, trial of this market, sent Hacketi back, the following spring, with, a larger quantity of goods, which Hacketi was to dispose of ac- cording to his own diK,retion, and to receive, as the reward for his services, a^/]5A part oj the net profits arising from the sale thereof. That a settlement, accordingly, took place between Reddy Sf Hackett, agreeably to this agreement, at the end of the year 1817, un- der which the latter received from the ior- mer £40, being a fifth of £200, at which sum Reddy estimated the profits upon his JNew- foundland adventure for that year. J hat Backett was again sent out at an early peri- od in 1818, with a still larger amount of merchandise; and with a piomise from -Reddy, that if he, //ac/.'e//,could realize the property to which he lepresented himself to have become entitled, through a marriage he had contracted here, his share of the profits should be advanced to a third, or even to half if his wife's fortune should turn out cquil to his expectations. That in the sum- mer of 1818, Hacketi sent Reddy a good deal of oil ; and at the same time informed him thai a part thereof, which he valued at about £600. and had marked with the letters 1. H., was purchased with his wifes money, and was sent on his, Hackntt's separate account i but that the rett was procured from the pro- ceeds, or upon the credit, of the goods he brought out with him. That in consequence of this remittance, and of the golden pros- pects held out to him hyHackett, Reddy was ipduced to send out. m the years 1818 and 1819, several extensive consignments to Haeketi, who, upon the strength of this sup. port, had entered largely into the seal-fish" «y and other uswal branches of business in . r -X u^A vnnAQ i3hinrnf>nis ot oro- 3URT, t back, the quantity of jpose of ac- d to receive, /ijlh part of mle thereof. , took place eably to this \r 1817, un- jin the for- t which sum n his New- year. That I early peri- r amount of omise from d realize the id himself to L marriage he )f the profits i, or even to uld turn out t in the sum- / a good deal iformed him luedatabout letters I. H., ; money t and dte account v rom the pro- the goods he consequence golden pros- ckettf Reddy B years 1818 isignments to h of thissup* he seal-fish" F business in nents of pro- directions to I I 3-C NEWFOUNDLAND. the consignees lo forward the proceeds t6 l\eddif\ and had assured Rcr%, in a num- ber of letters, that he was in a fair way to do great things for them both,. That, buoyed up by these flattering and delusive repre- sentations, Reddy continued to honour Hacketfs drafts, notwithstanding the re« peafed failure of his promise to put him in funds to m-iet them, until the year 1820, when hefomd it necessary to refuse some bills which Uackett had drawn on him, arid to send out a person to look after the pro- perty which was in the hands of Haekett, And that the knowledge of these circiitn* stances immediately led to the declaratioit of Hackett^s insolvency. This is, I believe, a faithful cot)y of th^ transactions between these persons ; bttt there are several importahl facts to be ex- tracted from their correspondence, t^bich seem to me to deserve particular notice. In the first place, I observe that Aeddy sends out one of his own clerks as an as^i^tant t6 Uackett ; and that this person, after si ^hati residence in Ne^vfoundland, returns inch^rg6 of some produce for Heddy, aM is jitfid by him an extra surti for his servici^s abroad. The itiference I shoald iiittv^ from thiffis, ihnt R$ddy, considering Hatkm either as a partner or anageht. Was diSiWtfs of obtaining accurate information respecting his proceedings ; and, with that view, settt out this person to make a verbal report thereon. ^ Again, Reddy repeatedly urges Hacked to come home, in order that a settlement may take place between them ; and even' in 18^6 he desh-es him to leave Mr. Selntan (whom Heddy had Jsent out to take charee 01 tlie property) to conduct the business, and to repair himself to Ireland, th^they 515 1825. He DDT Trnitees of Hackbtt. lU i 616 CASES IH THB SUPREME CO.URT^ ^> V. i i 1825. may settle their accounts. Could he" hav» made such a proposal as this to any mai^ BiBDDV V. Irutteet of Uackett. \jrhom he, did not regard in the light of a partner or servant? And why was the presence of Hackett necessary to adjust their accounts, unless it were to fix the proportion of profit (for Redd^ had not even then entirely awoke from his dream of profits) which Hackett was to have? But the letters of fiackett furnish the strongest possible evidence that he consi- dered Reddy either as the principal for whom^ he acted, or as a partner m all hiscAic; concerns. He advises him that he had drawn bill^ upon him for the pay ment of his iervants' wages. He requests and direct^ him to pay one ar two persons the amount of some small consignments be had received from them. He begs him to introduce him to some houses in the ports of either Spain, Portugal, or Italy; and at the same time he positively assures Re^dg that he shall be made acquainted with whatever shipmentj he may make to any ^f those places, and that the proceeds shall also be forwarded from them to him, He professes to ac- quaint Reddy with every particular relatmg to his trade so minutely as to send him more than qnce a statement of his stock t» hand, and of the amount of his bo'^k-debts. And, what is more than all the rest, he impor- tunes Reddy for further supplies by an assu- rance, that the whole success of the concern depends upon their early arrival ; and after the receipt of them he triumphantly congra- tulates Reddy, that he could then obtai^ credit for thousands where he would not hefore have dared to ask for a shtlhng; antl distinctly intimates an intention to use tlus ^edit in procuring produce to send to nun, Without deemmg it necessary, then, to WEWFOUNDLAND^ mi he-havti my mai^ light of a was the adjust fix the not eveii tf profits) rnish the he consi- for whoia 1 his chief he had tent of his id directs! le amount d received >duce him iier Spaiu„ }ame time le shall be shipments tlaces, and forwarded ises to ac- lar relating 1 him more cie in hand, hts. And, he impor- )y an a^su- Ihe concern and after tly congra- hen obtain would not illing; and to use tJus i to him, f, then, to s flecide whether Hachett was the partner, or merely the servant, of Reddy, 1 am satisfied that it would be gross injustice to the other creditors to allow him to take any part of that fund with which he permitted lAackett to trade/ and upon which they relied for the payment of the debts Hackett contracted with them. I am, therefore, most clearly of opinion, that the plaintiff ought not (to receive any dividend on his debt, untill the other creditors shall h ve received the full amount of theirs. 182a. Rebdy V. Trnsteet of Uackstv. \ m^: 513 CASES IN THE SUPREME COURT, 1826. W i n ''■ si 1 '.' Augiut 22d, The follovviog olaues sre ex- empied from pay- ment of the Green* wicb Uo&|i'i:&! du~- Ist. Appwnti. ces V7ho have been bound agreeably to the provisions of Ibe 2d Anne, o. 6. 2d. Persons em* Iployed in boats, whether decked or •pen. in taking fish which are brought fretk on shore to be ccnsttmed in the island. r 3d. Persons em- i ^oyed in boats (of mny size or descrip- tion) and vessels Ibat trade within any of the rivers •f Newfo'indlsnd. 4lh. Persons employed in open boats in fishing, or in any ether pur- suit, upon (he coast of New- foundland ; provi- «ied that the open boat is employed mUhout any depen» dsacc up-Tii, er eo?s- mction with, a larger vessel. In the following cases, all the questions which have hitherto arisen in this island, upon the construction of the several Acts of Parliament imposing a duty upon sea- men, and others for the support of Green- wich Hospital, are carefully investigated and elaborately determined by the Su^ preme Court, Peter Weston Carter, Esq. against Nathaniel Woodley. C. ASE submitted to the Court by the parties : — ^The defendant occupies a fishing- plantation in St. Johns, and keeps boats 'dud skifls, and hires fishermen and shoremen to carry on the fishery. Among others, he hires three fishermen on wages, who, in an open skiflT, the property of defendant, pro- ceed daily, during the season, to the fishing- ground near St. John s, and in the evening deliver theii catch offish, fresh, on shore at defendant's room, to the shoremen, in order to its being cured. When cured, defendant sells it to a merchant, who sends it chiefly to a foreign market; but also sells some small parcels of it to resident inhabitants of St. John's, for home-consumption by their families and servants. The plaintiff contends that the said fisher- men are subject tp the 6d duty, and that the defendant is obliged to stop or detain it out of the men's wages, and pay it over to plaintiff on account of Greenwich Hospital, under the requisitions of the Acts of 2d Geo. II. c. 7, and 10th Anne, c. 17. The defendant resists the demand, on the ground that fishermen and persons employ- ed in open boats, as aforesaid, are within the NewfoIjndland. exemptions contained in the 1st section of the statute of 2«erf from the said 6d duties, undet ihfe provisions of exemption contamed in the 1st section of 2d Geo. II. c. 7. having been employed fishing in an o/?c« boat on the coasts 0* th. colony. That. «^o;*^over the appfentke'iH also exempted from the duty by the statute of 2d Anne, c. 6, s. 7. The question of Habihty, under these facts, is respectfully submitted to the deci- Bion of the CWr^ , • .•« James Simms, for plamtitf. William Dawe, for detendant. Chief Ml^^ 't^ker. These are two of several cases which hwe considerably oc tiipied the public attention; ad, as they differ only from each other in some particu- lar circumstances of comparatively small tnoraent, the Court, in pronouncmg jucls- Ticnt Upon these, will endeavour to explain the pHnciples which appear to be common to them all ; satisfied that if these principles are once correctly expounded and clearly understood, the application of them to every case that can occur will be perfectly simple ^%hTpl*aintiff, in his character of Receiver of Greenwich Hospital, has brought the pre- cent action, as well as some others, which will be constantly referred to m the course of these observations, to compel the pay- ineht of a diity of sixpence per mensem, hj a number of persons variously employed in the different departments of the fishery oi this Island ; and, viewed together, they give ilfie to the two following important questions: Ist. Who are liable, unde^the 10th Anne, c. !7. and 2d Geo. II., c. 7. to pa^ Sixpence si raoiitb to Greenwich Hospital I ad. \y the same Act^, 'i OVftT, ict, they fire luties, undet itaiaed in the having been boat on thi^ aoreover, the n the duty by 7. under these I to the deci- plaintiff. or defendant. se are two of isiderably oc- a' d, as they some particu- atively small luncing judg- )ur to explain to be common lese J)iinciples d, and clearly them to every srfectly simple ler of Receiver ' roughtthepre- others, which | in the course Dmpel the pay- er mensem, by ly employed in | >f the fishery of ether, they give rtant questions: 'the 10th Anne, to jniy sixpence itair he eamo Actsi^ NEWFOUNDLAND. to deduct the naid duty from the waf^es, shares, or profits of the persona subject" to the payment of it? -> , The solution of these problems must de- pend upon the just construction of the sta- tutes from which they proceed ; and, as the interpretation of a statute is always mate- rially advanced by an acquaintance with the causes which occasioned it, we o urt of King's mployed the jommodate a ly upon the tf landed pro- ig fommercinl lie, seconded , tind, where , legislature, I in Ihe piac- as has been and excellent suddenly re- ould not, with w, be able to /lewould hear, amercial pros- lings and ha- able than that iws. But the i^pices of Wil- n of this com« wi^e and en< t a great com* the protection ad that weallh ' Jmg it, must t ablessihgftfi y accordingly I strength keep .c^Uh, by giving zn to enter into ig the learliest iirpoae was the illiam HI., c. 3 ted, that a re- eamen for the lany oth^rmo- inilncenients to i n the books of M KEWFOUNDLAND, registration, a hospital was assigned for (he reception of sucIj registered seamon as should be disabled by wounds, sickness, or age, from going to sea. T \o thid isbxpi^sbly aaseirt^ ito be the fact in the pr^ambletoiiHeiSIQth Geb. 1 f . c. 98 ; aiMi' a perusal of allJ > Ike s^aiates which had bbfbre then bedn passed in^rek- uupr^jadiced person, iihkt^tiiey; ai'ei'liU 623 1820. Cartsr^ V. WoooLBr. (fti 'l^l.T r i v\ I 624 182(i. Carter V. WOODLEY. CASES IN THE SUPREME COURT, grounded upon the principle, obvionaly jn«t, of making the sailor in the merchant ves- sel contribute, as the price of the security he enjoys, something to the comfort of the GALLANT TAR, vvho often purchases that security for him at ihc expense of his blood. In pursuance of this principle, and in ex- tension of it, the 10th Anne, c. 17, renders *' other persons" employed in ships or ves- sels liable to the payment of the. same duty which the statutes of William bad imposed upon seamen; and also provides a more ef- fectual mode of levying it than had been given under those acts, by requiring the master, ovvner, or commander of such ship or vessel to deduct the amount of the duty from the wages, shares, or profits, of every seaman or other person employed in her. And, as this Act, although expressed in very broad and comprehensive terms, was considered not to be in force in the colonies, the 2d Geo. II. c. 7, extended it, with some alterations and additions, to them. Under these Acts, then, the plainliflf, in the first place, contends that fishermen employed in catching fish in open boats, upon the coast of Newfoundland, for exportation, are liable to the payment of the duty to Greenwich Hospital; whilst the defendant, on the other hand, insists that they are not so liable, 1st, because the duty is only to be levied, by the positive provisions of the Act, upon persons employed in ships or vessels ; and open boats are not, as he asserts, included under either of the expressions "ship" or "vessel;*' and 2dly, because open boats, if they ever could be comprehended under either of the words "ship" and "vessel" are expressly men- tioned among the privileged classes which To the former of these propositions it might) it wmmmm OURT, ivionaly jant, RCHANT ves- le security lie ifort of J.lie rchases that of his blood. , and in ex- . 17, renders thips or ves- le.same duty lad imposed 28 a more ef- in iiad been rqiiiring the of such ship t uf the duty fits, of every oyed in her. expressed in terms, was the colonies, t, with some em. Under in the first employed in ton the coast Dn, are liable Greenwich on the other o liable, 1st, evied, by the ipon persons id open boats under either vessel ; " and y ever could of the words iressly raen- 7lasses which ons it might, NEWFOUNDLAND, perhaps, be a sufficient answer, that the word ship is a generick term, comprising withm itself every possible species of wate^ conveyance, from the "alta navium pko- pugnacula"— the lofty three-deckers of the British navy— to the "biuemis scapha —the two-oared skiff, with "weak, unlim- bered sides; "—ami that, consequently, eve- 9^j descripUon of boat ought to be considered to be mcluded in it, when it is made use of in a statute which is intended toprovide a fund for the support of a noble and highly beneficial public institution. The legisla- ture have, however, taken care to furnish a still more convincing argument of their m- teation to include boats under the general denomination oi ship, both in the 10th Anne, and the 2d Geo. 1|.; for by each of those Acts, "boRtV' and " open boats," are, in the particular cases theie stated, exempted from the payment of the duty; and, since they are only specially exempted in some cases, they must, undoubtedly, be subject to it in all other cdiBes—'* expressio unitis est exclusio alter ius:* Assuming it, therefore, to be an incontrovertible position, that open boats are liable to the payment of the duty, unless they can be distinctly brought within «ome of the particular exceptions to the rule, the great question in the cases now be- fore the Court will be, whether or not the defendant's boats belong to any of the ex - cepted classes? for, as Lord Kenyon has fiaid, (a) " the general mode of construing "deeds, to which there are exceptions, is to " let the exception control the instrument * as far as the words of it extend, and no farther ; and then, upon the case being " taken out of the letter of the exception, the iniS ^".^°r"i»^' ^''""'•<>» *» N. P. after Trin. Tara, 17W : cited 7. T. R. 210. r b2!b 1826. Cartbu V. WOODLET. I m 52G CASES IN THE SUfUEME COUHT, ■ii '* 1820. CAnTBU V. " deed operates in full force ; " and Acts of Parliament, to which there arc cxceptionn, must, we apprehend, be construed by the «ame rule. 'JMie question, then, we repeat, for the Omrt to determine, is reduced to this single point : Do the boats of the de- fendant come strictly within i\\e letter of any of the exceptions contained in the 2d Geo. II. c. 7 ?— And we are clearly and unanimously of opinion that they do. After describing the persons who are to pay the duty, the first s»>ction of this Act excepts •• such apprentices under the age of •• 18 years, as are exempted by the 'id Anne, •« c. ; and such person or pt fHons as shall «♦ be employed in any boat upon any of the *♦ coasts of the said islands, colonics, or do- " minions, respectively, intakingtish, which «• are broughtym/* on shore, t6 be cousmwd •• in the said islands, colonies, or domi- •' nions, respectively ; and every person or •* persons employed in boats or vessels, that *♦ trade \y\\\y from place to place, within any " riter of the said islands, colonies, or do •* minions, respectively, or in any o/)e» boats «• upon the coast of the same." Mow, the Keceivers of the Greenwich duty in England have suggested, (ft) that the exception of open boats applies merely to open boals,em- ployed upon the coasts, or shores, of ** ri- vers;" and the Attorney General has ar- gued, with some ingenuity, that the excep- tion of open boats is conhhed to open boats that TRADE on the coasts of this island ; so that, according to his idea, open boats that Jish only^ do not fall within it. Butthe sug- gestion of the Receivers is at once destroyed by a reference to the wordis of the Act ; 'for, since a« boats that trade within any tivtir f (6) See ibeir iettor to Sic Qharlvs Bamiim, dated SOth June, 1019. count* and Acts of c cxccptionH, Btrueil l)y the n, we repeat, i reducetl to ts of the > are to on of this Act der the age of f the -id Anne, FHona as shall on any of the (lonit'B, or en boats that Bntlhesiig- once destroyed rthc Act; -for, Ihin any Tivcr amilmf dated SOiu I KEWFOUNDLAND. arc exempted, this exemption must certainly embrace o/)f« boats; and, consequently, that part of the clause which relates to them woulij, under the Receiver's construction of it, be altogether idle, inoperative, and im- pertinent. — Nor do we con&idcr the Attor- neyo-General's construction, though more specious, in any dejjrec more sound ; bci cause we think it evident that, if I'.t; •*'gi8- lature had intended to connect u fittwVnjgp with the employment of open jc nts, tlf. y wuuld never have made use of tLo ilisjuij -^ tive '* or," which completely separh;:^ and severs the boats that trade, from tlie opcH boats on the coast. — To us it appears, after u most careful examination of the statute, that the exemptions from the payment of the duty extend expressly to these classes; 1st. — Apprentices who have been bound agreeably to the directions of the 2d Anne, c. (j ; and not any other description of, ap- prentice, 2d. — Persons employed in boats, whether HI decked or open, in taking fish, which are brough fresh on shore to be consumed in the island. 3d. — Persons employed in boats (of awy size or description) and ves£!els that Iradu within any of the rivers of Newfoundland. 4th. — Persons employed vn open boats, in fishing, or in any other pursuit, upon the coast of Newfoundland ; provided that the open boat is employed, without any depend-^ ence upon, or connection with, a larger vessel. And as the cases which have been sub- mitted to us bring the open boats. of the de- fendant most satisfactorily within the last of these classes, we feel that neither of the ac- tions against him can be supported. |^,thesc cases, therefore, there must be judgn^cnt fojj tlie defeuuuui, , , 132a Cartkr WOODLET* M fc'l •^f;;! \ 11 %^ i. H'\ #- :!^ Pi 628 iv i ■> t CASES IN THE SUPREME COURT, Peter Weston Carter, Esq. against WhITEWAY & MUDGE. The GrMBwich hospital doty » not payable by perBom employed id the ■eaUfisbery wheie there has been an absolule and total failure of ntceeu : but the duty does attach if any seal* have been caught, •veD though the party's share should amouBt to less than the sum he paid for his birth.— And the period for which it is payable indudei the whole time from the first pre« paration of the ves' ■el foir the voyage vnlil the final ter<* mination of it.— The persons who go from hence to the Labrador, and fish thore in open boats, connected, by their engage- ments, with the Bchoooers which carried them round, •re liable to the payment of the Greenwich Duty from their quitting St. John's to their return to it after the cemplelioD of the voyage. c ^ASE submitted by the parties :^ The defendants are resident merchants of St. John's, carrying on the trade and fish- eries of the island, and are owners of an open boat which they hire for the fishmg- season to three fishermen. ^P^fendants rc^ ceife for hire of the boat £5, to be paid m fish Defendants also furnish the necessary s'^pplies of provisions, as customarily al- lowed to servants, for pirosecntion of the Toyage, and receive one half of the catch of fish in cdnsideration of such s'lpplies ; and the three men take the other half of the fish In lieu of wages. The men catch heir fisb on the neighbouring coast, and deliver t daily to the defendants, to be cured on their room. At the close of the season, defend- ants deliver to. or credit the fisherman with, one half of the catch of fish, deducting boaU hire and curing. ^ ^ In the course of the fishing-season two of the men, who have families living^in ^t. John's, take up. on their own account, pro- visions and articles of clothing for their fa- milies' support, to ail amount equal to the value of their shares of fish. The third.fisb . erman. being a single man, does not take up more geods than a few articles ot neces- sary clothing, some rum and tol>acco ; auU has a balance due to him of £10. which de- fenc'ants pay over tc him. . Plaintiff claims the six-penny duties upon the three men tluiiug the whole period oj the above fishing'conti'act, which embraces the pX) from the first May till the last Octc ber • and conienas, mm uciv"v.a».- - employers of the three men, withm the con nn* DRT, 3. againsi 38 :— nerchants of e and fish- )wners of an • the fishing- ifendants re-* to be paid in the necessary itomarily al- ntion of the ' the catch of pplies ; and df of the fish tch their fish ad deliver it :ured on their ason, defend- sherman with, jducting boat- season two of living in St. account, pro- ig for their fa- equal to the rhe third. fish' does not take .icies of neces-' tolKicco ; and ■10, which de- ny duties upon le period oj the 1 embraces the the last Octo- within the con- , NEWFOUNDLAND. struction of the Act of 10th Anne, c. 17, and are answerable to plaintiff to stop and de- tain from the men, out of their several shares of fish, the sixpence per mensem on each, and pay the same over to plaintiff for the use of Greenwich Hospital. Defendants contend, Firsts That all the men are exempted from the duties, as fishing in an open boat on the coast, &c. Secondly/, That with the two men who consumed their catch of fish, during the process of catching, in the necessary sup- port of their families, there were no profits derived to them. Thirdly, That if the men are in fact sub- ject to the payment of the six-penny duties, defendants are not strictly their masters or employers, so as to be responsible over to plaintiff to stop and detain the six-penny duties, and pay the same over to him. Under these facts, &c. the case is re- spectfully submitted to the judgment of the Court. Jaheb Simms, for plaintiff. W. Dawe, for defendant. 529 Chief Judge, In this case, as in the two preceding ones, the persons from whom the defendantshavebeen called upon to deduct the amount of the Greenwich duty, were all employed in catching fish in open boats, up- on the coast of Newfoundland ; and, the facts being precisely the same, there must be a similar judgment for the defendants. Peter Weston Carter, Esq. against John Boyd. * -vAlSR submitted b^ the narties : — The defendant is owner of several schoon- 3x 1826. Carter ». Whiteway & MUOQB. Carter B0YI>t Im km f'mt 630 h I r;Ui it. ^ I h L 1826. Carter V. BoYD. «;ases in the supreme court, er9 employed exclusively in various branch, es of the trade and fisheries of this island i for the crews of which vessels, plaintiff main ains defendant is subject to pay, under Se provisions of the several statutes {a) sixDence per mensem, per (man, while the 'rews or persons on board the said vessds wl7c employed therein, or m anywise di- rectiy ti furtherance of the adventures orvoy^ «^¥hftsreisrqu;stionwereemp^^^ under one or other of the following classes : First. -«eflZer5.-These vessels were fitted and provisioned for the adventure at owner s •defendant's) cost. The crews were, ac- co"to custom, hired on the shares, and Jere^mployed in and about the said ves- i Tels iHStitting, on the voyage m search of seals, and in discharging the cargo, &c. for a period of about eight weeks No ^o- Zastvages was paid to any of the crews on board, except to the masters who were each pafd £5 per month, and had also li^i^ejce Ser seal on all caught and delivered to de« ?endant. One half of all Uie seals taken wereras customary, divisible amor^g th respective crews (master excepted.) .ae mei also paid to defendant, as owner of the vessel 305. each for their births, according lo custom. Four of defendant's schooners made successful voyages, and the men re. ceived on their respective shares of the po- duce of the voyage, sums of £8 to flSeacli. Two of defendant's schooners fitted out on the foregoing terms, caught no seals; the vovage having altogether failed. ^ 'One of defendant's schooners, fitted ou on the same terms, caught so few seals, that the men shared only 15s. each, havmg paid (o) 10 Anne c. 17.-2 Geo. H c. 7. h* ! 30URT, irions branch" • this island \ jels, plaintiff to pay, under [ statutes, (a) tan, while the I said vessels in anywise di* entures or voy- vere employed )wing classes : sels were fitted ture at owner's ews were, ac- he shares, and the said ves- ^age in search the cargo, &c. eeks. No wo- of the crews on , who were each I also Mxpence elivered to de« he seals taken ble among the xcepted.) "^i^ie as owner of the irths, according lant's schooners id the men re- jares of the pro- ^8 to £18 each, ers fitted out on U no seals'^ the iled. >ners, fitted out 50 few seals, that ach, having paid !.7. NEWFOUNDLAND. br been debited to the owner of the vessel, 305. each for their births. On these facts, it is respectfully submitted to the Court to determine, 1st, Whether the wifls^cr* and creivs em- ployed in the four first vessels, which were successful in catching seats, and shared £8 to £18 per man each, are liable to pay the duty of sixpence pev mensem? And if they are liable, for what period of time?— whe* ther for the whole time they were working in the preparation and outfit of the vessel for the voyage, ami for the period of their being at sea, and until the vessel was discharged of her cargo and voyage; or for that time alcne which was occupied in the actual pursuit oj seals; namely, from the period of the ves- sers departure from her port of outfit, until her return to it at the end qf the voyage ?-^ or how otherwise? 2d, Whether the sealers on board the schooners which caught no seals, are suTj- jectto the payment of the duty ; they ha- ving received nothing out of the voyage, save their diet, and having paid or been in- debted 30*. per man for their births ? 3d, Whether the masters of the same un- successful sealing vessels are subject to pay the sixpenny duty, the said vessels having failed to take any seals, but the Said mas- ters having received £5 per month wages. 4th, Whether the master and crew of the schooner which yielded only 15«. to each man for his share of the voyage, are all li* able to pay the sixpence per month duty ; the! men having paid SOs. each for their births, and the master having received his wages of £5 per month, and a small sum for his allowance of sixpence per seal on the small number cau^'ht ? Secondly. — Coasters. — The defendant jfi £31 1826. Carter v. BOYO. ■*<''v ■m i , 1, * 532 . ^ iV; 1826. CARTCa V. SOYD. CASES IN THE SUPREME COURT, also the owner of a schooner wliicli was fitted out with a mnster and three men, all hired at wages by the month, and employed on owner's account, on a trading voyage or voyages coastways from port to port ui this island, bartering divers merchandise in ex- change for fish and oil, with which they re- turned to defendant's, in this port, having been so employed about the period of four months. . , , ^, , • his respectfully submitted to the deci- sion of the Court, whether the master and men so employed are subject to the pay^ ment of the 6d duty which the plamtift claims. ^ , rr.. i T:[t\rd\y.'— Collecting Schooners.— 1 he de- fendant is also the owner of a schooner fitted out by him, and manned with a mas- ter and three men, hired on wages by the month, and employed by him in order to go from St. John*s to several out-porls and places where certain planters reside, and carry to them necessary supplies for the fishery ; and also to collect and receive from them fish and oil, in return for supplies al- ready advanced to them on the faith of the voyage ; the said planters and defendant standing for that season in the relation of merchant-supplier and fish-catchers,— the said schooner having been so employed about three months. It is respectfully submitted to the deci- sion of the Court, whether the master an4 men so employed are subject to the pay- ment of the 6d duty demanded by plaintiff. Fourthly. — Lah-ador ScAooners. —The de« fendant is also the owner of a schooner fitted out about the 1st June for the Labrador fishery, which is carried on upon that coast by open boats or skiffs. On boaid this schooner are embarked six men, in the ac- OURT, NEWFOUNDLAND. 533 whicli was ree menf all d employed 2: voyage or port ill this idise ill ex- ich they re- port, having •iod of four the deci- B master and to the pay- the plaintiff rs. — Thede- a schooner with a mas- asjea bv the n order to go »ut-porls and 1 reside, and ►plies for the I receive from p supplies al- le faith of the nd defendant 16 relation of catchers, — the so employed 1 to the deci- he master and ; to the pay- d by plaintiff. tiers.^The de« schooner fitted the Labrador pon that coast m Doaiu isira len, in the ac* lual employment of defendant, three of whom are hired on wages for the season, say from 20th May till last of October; and three on the shares lor the same period of time. One of such servants takes charge of the schoo- ner, as master, to navigate her to the Labra- dor, and carry the supplies and fishing crews to a certain place where defendant has a fishing^room, where, on the vessel's arrival, she is moored in safety, and laid up, unused, for a time^ except as an occasional store for salt, &c. The master and men are then employed in skiffs, or open boats, catching fish, which they carry on shore to defendant's room, to b*e cured by a shore crew of defendant's. As soon as enough fish is caught and cured to load the schoo- ner, a sufiicient crew from the men so hired and on shares, is put on board to navigate the vessel to St. John's ; from whence, after delivering- her fish there, she again returns to the Labrador, and remains till the end of the season, and then brings the residue of the tinh and oil, the produce of the voy- age, to St. John's, together with the fishing and shore crews, returning about the middle of October. But besides the nfores'aid men, the hired servants of defendant, the said vessel carried also to the Labrador ten other fishermen (besides defendant's shore crew, who were employed solely in curing the fish ashore) ; and which fishermen were supplied htf defendant, who also contracted to cure on his room the fish they caught, and freight it to St.. John's. On the vessel's arrival at the Labrador, these men, 'forming three se- parate crews, employed themselves in their own skiffs, or open boats, catching tiRh on their own account ; and, as they caught it, ■1 aijjT --ii,i;7t.ictt null BtlUtC UpUii UCICiiUilUi. S room to be cured. When cured, defend- 1826. Carter V. \ 'i1 IT i> 4# tf 534 182(5. CASES IN THE SUPREME COVAH ant's said scl.ooner carried the fish on A-ei,M ♦^ <♦ Inhn's " and out of it took tl;f' v.uue of h s upplL; furnished to the catcl,.«. to- getl.er with the price o cu,mg ^j^d t « Imounl of freii-ht; and d''"^^'^''^, flheTe p.v lb., said duty, inasmuch as I. on^y lKt;on subsisting between d^^"^^^ sa;d fishermen was that ^^ JXf o mS o and fish-catcher, and not that o( luaster or employer and servant. , ^ , It is respectfully submitted to ilje CouH to decide whethei- all. any and ^J^'^h. o ISese fishermen, so hired hjf f>f «^'/^ BO supplied by him, are subject to pay the said t)vlnch were raTsed respecting the second and Aerd of these classes have been voluntardy relm- nuished bv him, the attention of the Court Sbeconaned'tothe/..and/^^^^^ From the case submitted by parties, vre perceive that some of the sr- . ' vessels Z^^^ to the defend v.tPueyoW«i Tty above the price paid. v ^^^^^J^^^ ** births ; luai m^ azr^^r^, , ^_a,r i xvere Je55 than the amouut of tue uuiv-money, covAt fish on keliM [)ok tl e vyiue catchers, to-- iing U'itl llie , erj^tl the 3nr- to fell where he same from ► ^ant has pro- iiest ten men, to f(i}l ^he said : contenci that nally liable to li as the only defpmlant and chant-supplier it of master or [ to tl»e Court ind which, of defendant, and yet to pay the )r plaintiff. , for defendant. lant is charged t descriptions of I i oasters" ** Co^ 1 Mbrador Schoo- ns which were id and tltird of oUintarily relin- ion of the Court md last of them. d by '■■■' ' parties, he sf- ' vessels r^fv vie voyages fharrb considera' ii'i ♦hem for their [."f oMe instancea tue tktivmoney, NEWFOUNDLAND. RUfI that in others there was actually nolAiw^ to be shared. Upon these facts we ^re cu! led onto decide, 1st, By which of these crews is the Green^ wich duty payable? SJd, For what length of time does it attach ? The second point seems to us to be free from every particle of doubt ; for the shares which accrued from catching the seals were unquestionably derived from the means hj which the seals were caught ; and we are, therefore, decidedly of opinion, that the crews are liable to pay the duty, where they are subject to it at all, from the period of their first entering upon the preparation of the vessel for the voyage, until the final ter- mination of it. On i\\e first point, we think it too clear to admit of an argument, that the persons whose shares exceed the price of their ^' births," are liable to the duty ; and we hold it to he equally certain, that those who have neither wages, shares, nor proBts, are not so. The middle case between these two extremes is the only one which has presented any difficulty to our minds ; and we believe that this has been occasioned principally by the influence which ihefeeU ings frequently exercise o\&c the under stand-r ing ; for if we could only djvest ourselves of the seeming hardship of exacting a duty from men who have already paid more than they are to receive, we apprehend there could be no hesitation in determining this question. Bv the terms upon which the seal-fishery is prosecuted, the persons em- ployed in catching the seals also contribute, in the form of " birth-money," something to the out-fit of the voyage ; and this sum they are bound to pay, even though there should 1,-, _ ■»-#«» /^— •/-.-/. ^C atxntMiaa Thp •* lliftll" HZi 1826. Carter V. Ml m ^35 VJ- i! m '1 1826. Carter V. BOTD. 'iJL CASES IN THE SUPREME COURT, • money" and the -share" are. therefore, ^uite Independent of each other ; and. c^nse. quently, fi duty which an Act of Parlmment 2as imposed upon the one ^a^^*' " r^ way whatever, be affected by the other.-^ Suppose the Act had also imposed a duty upSi, the owner^s ^hare-would 1^ not have been obliged to pay it upon half of the seals caun^ht which by the terms of the contract rpeAainto him, notwithstanding his dis. Eements upon the vessel may have .jt- Zded the value of his proportion of the seals • and must not the same rule apply Jo the' case of the crew? Again: two men pav each 305. for a birth ; and they are both emDlTyed for a month. From a total want inlTei the one i-^t -fed to any^ thing— but the other shares 155. Can it be si d that, as respects the payment of the duty these two men stuud on the 5a«i€ foot- rng^' Most assuredly they dp no ; since Ihl one has a share out of which the duly may be satisfied, whilst the other has none. 3 tfs consistent, therefore, with equi y as we I as law. that a distinction shou'd be drawn between them, and that in the one casJthe duty should be paid, and m the Xr no" if equity, however, were even 2 rectly opposed to to, our decision must stnrhale been governed by the latter ; fms in the emphatic language of the gjeat Lord Bacon, (b) ^^ Above ail things it is of he ^trelleJ. moment to the certainty of the " Taw that Courts should keep from swell- - ing and overflowing; ^^'^^l^'Z^'T' *• of mitigating the riooMr of the law, they " should CM< its sinews and weaken its strength - bv wresting all things to their own dispo- « sal ; and So.Court should have a right of .i AJr.oiuo' affainst a statute under any (6; See his Aphori»imt, 43 and 44. NEWFOUNDLAND. 537 ** pretext of equity whatever: otherwise the *' judge would become the legislator, and *' have all lhinj;s dependent upon his will." Professing, therefore, to be guided strictly by our view of the luWi but, at the same time, rejoicinjj in the belief that our decision, though it may at first sight appear somewhat harsh, is yet capable of being reconciled to principles of equity, we are of opinion that the persons whose shares are less than the amount of their *' birth-money" are liable to the payment of the Gi-eenwich duty. The masters of the sealing vessels, who receive a stated rale of wages, without reference to the success of the voyage, must; procul du- bio, in every instance be subject to it; and the defendant is as clearly bound to deduct it, both from the wages of the master and the shares of the crew. Jn the schooner which was employed at the ** Labrador" two descriptions of persons proceeded to that fishery ; the one l^einjfiii the actual service of the defendant, and th^ other intending to fish upon their owii ac<« count, under a contract with him that h|e should cure their fish and bring it to>, St, John^s. The liability of the latter to j)ayi and the obligation of the defendant to de- duct from their earnings, the amount of the duty, fotm, however, the only questions which have been raised upon this division of the case, as neither of those points are dis^ puted in regard to the Jlrst class; Before tve proceed further, we deem it necessary to notice a custom which has often been proved before us to prevail in the Labrador fishery, Tiz. that all the perscns who go round in the vessel are bound U- -ssist in navigating her ; and that an interchange ofduties takes place between the crew of the vessel, ihejish''catch* 1826. Cartbr V. Boyd, 11 «r/d>. Suu tuc ^sh^curers, whenever the ge- 51 £38 1 n ri 1850. \ « ! V^^a^-V*^! ) * ■ f Cartbr r .} ( V 4 BOTD. '3 *l 'n ^;! CASES IN THE tUPREMB COURT, neral ipLiCbt of i!.e whole can be pro- niote«< ijy l^ connecting, then, this usage villi nje facts detailed in the statement of this case, vvi,' think that it runs "qwa- tuor pedibus' wilh the case which was re- ferred to Sir Philip Yorke respecting the whale-fishery formeiy »;ai.K'l on upon the co;i8t of Carolina ; and, convinced as we are, not merely by the high authority of his name, but also by an attentive consideration of the subject, that his opinion is correct, we hold, in conformity to it, that all the persons who went from hence in the defendant's schooner to the Labrador are liable to the payment of the Greenwich duty, from the time of their quitting St. John's to their return to it afler the completion of th^^ voyage. And as we deem them liable solely on account of thev connection with the schooner, and not in cou- 8c quence of their fishing in open boats, so we think that the defendant, as owner of that schooner, is bound by the Acts of Par- liament to deduct the amount f the duty from the proceed^^ of the voyage, which, by ^he very terms of the contract subsisting betw -n him and th^ m, arc to pass through tiii hai,^us. 1 NEWFOUNDLAND. 69t 1827. John Dunscomu & Co. against Thoma» Kkck. Dtctmbtt Uth. J. HIS was an action of covenant (tried be- fore a special jury), in which the plaintiffs sought to recover from the defendant the suinof jflie 19*. sterling; being the ba- lance of rents due by defendant to plaintifls for three tenements held imdcr three seve- ral demises; the defendant having cove- nanted by the said leases, viz. i * two of them to pay the rent reserved in lawful mo- ney ot Great Britain ; and in the third in Bterling money. The jury returned a special verdict, find- ing the sum of £116 19*. due to the plaintiffs ; and raising, for the consideration of the Court, the question whether the defendant was liu e, under his covenant, for the pay- ment of t* it sura in sterling money, or in dollars . iive shillings each ? ■ The case w. irgued this day by the At' tomey General, tor tho plaintiffs, and by Mr. Lilly, for the defendant. Acting Chief Judge Brenton, The ques- tion arising in this case, and submitted by the special verdict for the consideration of the Court, is one of no small importance, inasmuch as the opinion now about to be given upon it wrill, in all probability, set the matter at rest, and be considered as the law in all future cases where the same point may ocrur. The plaintiffs found their action upon the covenants entered into by the de- fendant, under the leases produced at the tria to pay the rent reserve d in lawful mo- ney of Great Britain . and in sterling money — teraas which are synonymous, and^havc the A eoTantDt ta pay r«nt ia lawful money of Great BritaiD, or tterliDg nobpy, eaoaotiiOMr bo diieharged by a payment ia doA> larsatfiraabiliiDga each ; altboagb al tha lime of entering into Ibe eoTeDani dollars were gene- rally received at Ibht rate. For wbere a cofenani is ezpreae, Ibero must be a alriol perforniaDce uf it. [See Hany v. Ga- den, enle p. 336, and Bladeiton ▼; Thornai, ante p. 379.] Ikoembtr I9th. Decembtr 22if. 'I \i 1 i 540 CASES IN THE SUPREME COURT, \\ A Im i 1827. like meaning. In order to discharge liim- ■^ ^ . -■ ' self from his liability to pay the rent in the PuNfooMB ACQ. express tc .is of the contract, the defendant »• contends, that at the period when these ***?*• leases were entered into, as well as before, and for sogie time afterwards, dollars were considered as five shillinj^s sterling, a^d so received by the plaintiffs in payment of these rents; and the jury, by the terras of their Terdict, have so found this fact. But this answer does not appear to me to be one that can avail the defendant in the present action. I must construe the defendant's covenants, under which arises his liability tO' pay ihe plaintiffs* demand, according to the known and established rules of law; and those ruleb will not allow me to lake into, iny consideration matters foreign to, and not making part of, the instrument in which the covenants are contained, in order to seek for the meaning of such covenants in direct opposition to their express terms, \^ this case nothing can be more express thaa the covenants entered into by the defendant; and where they are ea^press, they are to be taken more strictly than others, and there must be an absolute performance, which shall not be discharged by any collateral matter.(o) In the construction of coyenants it has beei^ held, that where the law creates a duty, or charge, and the party is disabled from per- forming it, without any default on his part, and has not any remedy over, the law will excuse him; but where the party, by his own contract, imposes on himself a duty, or charge, he is bound to mt'ke it good, not- withstandmg inevitable accident, because he might have provided against it by his own contract. . « , . . , TWtct rnip which, in Selwvn. is extracted (o) Ball. Nisi Prius, 161. '?- f BT, arge him- reut in ilie defendant hen these as before, hilars were ing, apd 80 ent of these ms of their But this to be one the present Jefendani'a I liability tO' rding to the law ; and ;o lake into, jn to, and nt in which u order to bvenants in i terms. la press than ! defend iint; sy are to be , and there which shall a I matter.(a) I it has been i a duty, or id from per* on his part, he law will rty, by his If a duty, or t good, not- :, because he by his own is extracted NEWFOUNDLAND. from the case of Paradise v. JatietAlhsffu^ "27, has been recognized in many subsequent cases ; and in one of modern date, (Jhambre Judge said, in speaking of that case, ••the "('oui't took a rational distinction, that •' where an obligation is imposed by rule of " law, and thee is not any ex|)ress covenant, "Hie law introduces a reasonable exception, "namely, thai an act of irresistible violence " will excuse ihe parly; but if a party enter "into an absolute contract, without any "qualification or exception, and receives "from the party with whom he contracts " the consideration for such engagement, he "must abide Ity the contract, and do the "act, or pay damages, his liability arising "from his own positive and direct underta- "king." Applying, then, these established rules in the construction of covenants to the case now before the Court, in which the defend- ant has covenanted to pay his rent in ster^ ling, or lawful money of Great Britain, he cannot, against his own positive and direct undertaking to pay in sterling, be permitted to tender dollars at five shillings, for such payment, notwithstanding at the time of entering into such contract, dollars were considered equal to, and received as, five shillings sterling. As long as the lessor agreed to consider dollars as five shillings sterling, he would, of course, receive them, and the lessee pay them, at that rate ; but when, from any cause whatever, ijut more especially, as in the present case, fr^^m one independent of the lessor's control, the dollar's relative value to sterling was differ- ently established, the lessor could immedi- tely claim fiom the lessee the fulfilment of lis contract according to its express terms ; ■because be (the le^ ^ee) might have provided 541 li . >i 'tHW It i :^. S4$ DUNSCOMB&Oo. 0. Bbok. CASES IN THE SUPREME CO«RT. against the contingency that afterwards hap> p?ned, and of which he now complains. On these grounds, therefore, I feel no he- sitation in declaring my thorough convic- tion that, inlaw, theplamtiflfe are entitled to recover in this action ; and I am the more confirmed in this opinion, by knowing that it is in accordance with the sentiments ex- pressed by Chief Judge Tucker on thxs ques- Son, when the same has come, m more than one instance, incidentally before him. Judges Des Barres and Cochrane concur- ring in opinion with the Actins Chief Judge, iudgment was entered up for the plaintiffs, for the amount found by the verdict. « ', ♦" 013 RT. jrwards hap* m plains. I feel no he-t ough convic- re entitled to am the more snowing that mtiments ex-* on this ques- jn more than re him. hrane conciir- ; Chief Judge,, the plaintiffsi^ ;rdict. Mppm'^ix* Peter Winsor against Ewen Stabb. JL HIS case was tried in the Southern Cir- cuit Court at Ferryland, on the 4th Octo- ber, 1827, before Chief Judge Tucker, who afterwards entered the following judgment upon it. Per Curiam. It seldom happens that the importance, or difficulty, of a legal question can be estimated by the amount of the sum in dispute between the parties to the action in which the question at first arises. The truth of this observation is forcibly illustrated by the circumstances of the case BOW under consideration ; for, trifling as Jtho subject-mtftter of it undoubtedly is, the determination of it is connected with two points, upon one of which a difference of opinion has prevailed among the most dis- tinguished Judges of Westminster Hall, frhilst the other seetns hardly yet to have received a direct judicial decision. .1 The following is a short outline of the l||aterial facts of the case, as they appeared fii evidence upon the trial :— A quantity of j&ih was sent by the defendant to England in a GENERAL ship, of which the plaintiff ;was owner and master; and, by the bill of lading, it was stipulated, in the <^^ual terms, ^t the freight should be paid at the portojf October Ath. 1827. Under a bill of lading, by whicb it is 8lipula;ed, that freight Bhall be paid by the con* signee, the oMster of a general ship delivers the article to the consignee ; and, baTing re< ceived from him part payment of freight, after warda aues the shipper for the balance ef the freight klilldua to him. Held, ihat he is not entitled to recover it from the shipper. li teemt that freight ou^ht only to b« paid on fish (eveo where it haa beect properly takaw care of, and failb* fully deliTered),ae4 cording to its ^ weight at the time of delivery, and Qot according to its weight at tkt timt of ikipment. 544 y ii ' t827. WlNSOR Stabb. APPENDIX, Slabb. ""* I 'f,i,. fish as the plaintiff land, the wl'"'^ ""^ V' ^Iv.lXered to the aUeges. was -cord.ngJy deU.erea^^.^^^^_ consignee; but the «ein .hipment. bly to than at the ^'^^^°^„„^^^al arose This '^;fl;'^"'^„%*'',;S condition of the fish from the nature »"" . . , ■^^ appears, when it "••'^.P-tf^hXkl well-informed from the testimonj »' ^^^^ ,^^ .t^.e this persons, "'» 6^' f Wf considerably in '"'•., InS there seems to be no weight. ,l';'"^^"i ,: imnatin" either fraud, grou»Me..r(o^ imputu., ^^^ t "efo e contider%L case as es^blishins several »""'• J' 11 vai,,e.i at twelve pounds, cepled a tonofe h ^aUie^ ,,.^^ „,,„,, from the »?«"' "Vl^-mxHno- (» Ihe wdght «t freight, estimated """''^"^t^Vt" thirty-nine '"^ 't riSu 'sTnd "fvenpence! and r;tiSatr'givingthedefendanc Iwo'shillings -d -enpence,^. ^^^ ^.^ ^^ ' •• utlhefir^ place, necessary thatthe so, it 18, in V'V: Hi 1 of ladmg for paymeai ?;Cri"htty^e --V^' an/ the ac. of the tfei^ni j payment from hiffl, 'ePT„'otnrevert the pLintiff from ha.m? ? :: ,rtXdefe«d£., -^J-h.PP- "^ ?lVep:y1ihrerct''dingto t fl^l ^cHuery ; (or uttless the law »«»« ■a Mr. Thomas e vessel in Eng- as the plaintiff lelivered to the was considera- of its fc'hipment. f contends, arose lition of the fish i ; and it appears, •al well-informed in the state this considerably in seems to be no ting either fraud, iff; and I shall, se as establishing r 071 his part. fish to Mr. Thcs. fed from him, in tids ; and also ac- 1 at twelve pounds, ndant. The whole la- to the weight at mted to thirty-nine sevenpence ; and the defendant cre- , seeks, by this ac- ,ce of seven poands ence, ^ to entitle him to do », necessary that the lading for payraeai nsignee, and the ac payment frombim, )laintifffrom having It, as the shipper ot y. that the freight rding to the weight It was shipped, ana e^ht at the time of tt[ law shall be la «'» APPENDIX. favour upon both these points, it is clear he cannot maintain his suit. Recollecting, then, that Lord Kenyonhfid held, in a case which was tried before hira at Nisi Frius, that the master of a ship, which was hired by the defendant under a charter-party, could not recover from hira the amount ot freight, after having neglected to exuot the payment of it from the consignee, according to the terms of the bill of lading; but that this opinion of his lordship had af- terwards been overruled by the other judges of the Court of King's Bench ; and not bc-< ing able to satisfy myself, during the hurry of a trial, how far the rule w^bich had thus been established in regard to a chartered ship was applicable to a genera/ one, I told the parties that, as the facts were conceded on both sides, 1 would recommen»,,. ^ after a Court, of W«SSr,tSborities«bich careful research into all Jttc am ,. touqh upon this point, ^^f^^ prided Ae ;ui'*fte%Uei««'P^^-'''„t?hTs'r^^^ »»t determination ot cases o . ji,at the length feel '^J^^^^J^^X^, and not plaintiff must look to tneiCTjBs ^ ^^^ te dup Uim for the ««=« "J point must car As my <>P»'?^°» ?lfe^ FoMbe defend- " .H""? nit dait"fnSe second ; thougU ant, 1 shall not awai« uu question, ti^ intim»tely con»«*edJ^J^ ^J„aon his mt- the nsW»f *t f "thrplaee ofdestina- goods when brougM *» »* P'r ymselt from the freight, ujn»» conflicting opinions, ^.itere have ^amtam^ been settfed'by any and which has J^^jT , . ^uh respect iudicial decision m J^nglnnd. ^ ^^^ iotl.e.pa.ticularbrancUo^^^^^^^^^^^^ position wUich f?,^^i'^"7 it asserted in a ^der consideration I hnd it a ^, .^ work of the J»g^«^,J,^^'.^!^^^^^^ of Bugar «. our West i^^ia Trade the tren,ui^ «,^^ ff ^nd motocB f^f S;;^^/^^ J^^,'^;, which. «« of the casks at the r^f^lfj^^Tthan the '■■ iu »«ii;i'» i"» -=^ "■ ■ -■ anil /fifth adiiiw'' C«^ A66o«. on Mercb«4 Sh.p«. 200 (fi^U «k. ■M '■» APPENDIX. S4f lat there was 'Jiartered ship eht well war- it rules to the r, the charter- Its, iadepend- r incur under the latter, this contract under My object, in how far ihis nized by the I; andi after a ithorities which n anxious pur . has guided the this sort, 1 at declare that the nsignee, and not lance that may )f this fish. ,t point must car t for the defend- s second; though with a question, tnt to abandon his 5 place of destma- discharge himself ich, \ery learned nflicting opinions, (en settled by any ad. With respect f this general pro- it of the facts now nd it asserted ma ,cter, {€) that " in the freight of suga led by the weight I of delivery, vim tance, less than the bip8, 200 (fif'b ed""^"" " weight at t|ie time of shipment; and, there« " fore, the loss of freight occasioned by the *' leakage, necessarily falls upon the owners " of the ship, by the nature of the contract." The usage of the fFest India trade would not, however, decisively regulate that of Newfoundland; and, therefore, if my opi- nion had been favourable to the plaintiff on the first point, I would have left it open ta him, upon a second trial, to prove thata* different practice prevailed in this trade; but at the trial 1 should have told the jury, that unless it was clearly proved to them that the usage here was for the freight to be paid according to the weight nf the fish aC the time of shipment, 1 should recommend to them to adopt, by their verdict, a rule which already prevailed in a part of the Bri- tish Empire, under circumstances precisely similar to those which they were called up- on to investigate; , -:. i' .;it ; After this expression of my setiH^ffientsoil both points, it only remains for me to add, that judgment must be entered for ti^Q de- fendant. t82T. .■io'-> 4 ■■•■.■» -fffir^.w^-iy*'**'*" r 5ia June ais«. APPENDIX. In the case of the Schooner MaugareJ & Isabella^ > f. at*-'* .i;-- A prohibition to restrain tlie Vice Adoiirally Court from proceeding against a vessel for the recovery of a gum of money ad* vaaoed for her re- pairs, &c. in a fo- reign port, and se- cured by an hypo- thecation deed, by which the said ves- sel was pledged, and the sum so ad- vanced was to be repaid with mari- time iotereat at 15 parcent.refused.on the ground that ■uoh M bypothe. cation was a sub- ject solely of Ad- miralty jurisdic- tioD. ?^ aS Chief Juds' ^'""o" '^"^""'"^ '" /it in »l.ich an applic»u«n ba^b e» made to this Vomt for a prohibition to stay Iho nroceedinss instituted agamst that lelsefCiSr Court of Vice Admiralty, 1 have civen to the subject the best con. Sio'n in m, po^er -cetbe ma er h- hPfin brought before me; and, aware now imt.ortanTft is to all the parties concerned Ztl should deliver an early opinion upon f^i am now nreparpd to do so. and to state tfee result oT Sy deliberations. Jhe schoo- ^^vMarlaret l Isabella, owned by William ITazWs. John's, having met with con- Srabirdamage on her voyage from St. JohT'to Brist'ol *^«"ng. the couj.se o^^^^^ year, was obliged to put into Cork to reht and the expense attending 8«ch refitting ex ceediuK any funds the master. Michael Fm- re7 could command, either on his own ac- count or that of his owners, he was under r necessity of hypothecating or mo^g- sing the vessel, as a security to ihe persons fMessrs! Hyan 6f Mara) who advanced the K necessary to defray those expenses. B?^hl terms of this hypothecation, the ves- ferwas pledged as a security that the own- rAbouldDaftheamountoftbesaidadyance. viz. £650. together wiiix maniiiue iBicrcBi, 1) tt^t Iahoahet St ied, by peti- irohibition to 1 against that miralty; and ort of the ap- opposition to delivered his r Margaret Sf ition has been ibition to stay against that e Admiralty, the best con- the matter has id, aware how •liei concerntd y opinion upon JO, and to state 5. The schoo- ned by William ; met with con- oyage from St. e course of last ) Cork to refit, ich refitting ex- r, Michael Far^ on his own ac s, he was under ing, or mortga- y to the persons o advanced the those expenses. ?cation, the ves- ty that the own- Lhe said advance, lariiiiue iatCiCBi, APPENDIX. {»t the rate of 15 per cent., on the 1st day of December last, or immediately after the arrival of the vessel at St. John's. Upon her arrival there, which was not until after the said 1st of December, the money not being paid, proceedings were instituted against the vessel by Messrs. liyan^Marai upon the hypothecation deed, in the Court of Vice A ^<^!l'^^^^^'^' Vessel in order to raise money for that pur- To^e The inBtrument then proceeds to Ke the sum borr<.wed frotn Messrs ^^^^^^ I Mara viz., £050 ; and that, for the re-* ^^':nt of this sum: with maritime mter.^, at f5 per cent, on Ist day of December lit or immediately after the arnvtil of the T^^elir Newfoundland, the vessel wa. Xected. as a secm-ity, by being morytged a APPENDIX. 5oL 2ver be the ng, the sum, voyage* the ler, and the f, as security are, ami pro- • Assuming, tea to Gonsti- 3 will make it •istliction, let It now under his vessel has iwer to these the usual de- he deed) that $ter of the ves- n-ibed ; it then xes the owner- m Walsh.; the a her voyage is lein lo put into ting absolutely isiecution of the d the declara- inability, on his er, to raise the he expenses of )gether with the mortgaging the ley for that pur- en proceeds to a Messrs. jRyan f hat, for the re- laritime interest, ay of December le arrival of the che vessel waj being mortgaged letefoFe. is cx« riy as laDguagfi can express it, all that is r^qi :' jd to be ex- pressed in hypothecations or bottomries, so as to constilute this imstrument (by whate- ver name it may be called) in fact and in substance, if not inform, a bottomry bontl, so as to give the lender of the money under it, the sanitt advantages and the same remedies, and in the same Court, to which he would have been entitled if the form of a bottomry bond bad been strictly and literally com- plied with. The distinction which the Attorney Ge- neral, in arguing for the prohibition, bus en- deavoured to establish between bottomry bonds and hypothecations, appears to me far more ingenious than solid, and cannot avail his client in the present case. 13y a bottomry bond (which is under seal, be it observed) the master, by the policy of our maritime law, is allowed, in a foreign port, to pledge or hypothecate his vessel for the repayment of money borrowed for her ne- cessary repairs and refitting, together with maritime interest; but then the money so borrowed, where it is to be repaid with ma- ritime interest, is only payable on the ter- mination of the voyage ; and in such case, the lender takes upon himself the risk of the ship's return; for if she is lost, he loses the money he has so lent, and has no re- course whatever, either against masler or owner. IP So it is with hypothecations, where the form is not that of bottomry, but where it is that of deed, bill of sale, or any other, even though it may be under seal. U the vessel is by such instrument pledged for repayment of the money borrowed, with maritime interest, anl the money so bor- I rowed appears upon itie face of the ijjstrn- M ment to have been raised in a foreign j out 1828. Ca>e of U>« Scbooii«r RIaii- GAKET Hi Ua- BI^LLA. f-1 5521 ft > 1S28. Case of (he Schuoner Mar* OARKT & Isa- bella. APPENDIX, for repairinB or victualling tl'«^'''P' "'^^ any other purpose nece8»ary to «"'"''l« "'« master to complete the enterprise u. jhich he is engaged, the l'yP<'t''«'=»«"^" >». » ^ which the master can legally make, lue Thip being the thing pledged, as ^o«n^yjov the'^repayment of the money borrowed «ah maritime interest at the »"» »""» "se of TOYa^e : and in snch case, as in the case oi IZotU the owners are never Per^^^^^^ responsible; the remedy of the lender being against the ship and the m««ler («); In cases of this description, therefore whether of bottomry or hypo hecat.on ^^^ has never vet been made a question inan ihe'y wfere not solely subject to the junsdic^ mm of the Court of Admiralty. 1 hen, in what respect does the ^«^*'"; >nrlt of hypothecation under which iC^u/ tMZ^Zd their claim top«)ce^^^t L vessel in the Court of .V'^«. ^ ^^^^ differ from the one I have last describea, oi even from bottomry bonds. In all its essentials it completely corres ponds with them; the money lent. B^^^^^^^ in both cases on the credit of the ship , u " also so lent for the repairs and refittm l»Pi. and for other purposes necessary ^^lor an;\hrng that ^pear's To the c-tr-^^^^^ enable the master to Pros'^ou e his voya « t« its termination; and «h?"»^ ^^^^'/'^J' 'Jh terminate her voyage and be lost ^n bolj cases the lender would »««; ,»?'«, "*f";^^ be without his remedy If, ^^»^ V.p hvoS- blance is so complete between the hypothe ^ inn now under consideration, and the Xr inTum^Jitrof the like nature to which ? have referred, it must be gov«r«^^^^.y ^^' same rule of law which is appi-ble^to^th^ and if, as i have aireuUj dU^"-* - » (ft) Abbott, UO. silip, or for enable the 5e ill which lion is one make; the security for pro wed with lation of the 1 the case of ?r personally lender being (a). ►, therefore^ •thecation, it fjnestion that ► ihejurisdic- !S the iBstrn- which Epun oceed against e Admiralty, described, oi letely corres- .y lent, is lenk >f the ship ; it nd refitting of necessary (for contrary) to J his voyage to the ve&sel not lost, in both is money, and len, the resem- 1 the hypothe- ition, and the nature to which ►verned by the icable to them ; ..rn thev have T7 «'J rf AP1'£ND1X. kren uniformly l^M as ii-rkiaifc-su!>ject to Admiralty jiirisdii tjou, this hypolhccatioa must be equally so. But it has been arj2fued by tlie AUorney General, on. ilie part ofllie persons applyinjjf for this 'prohibition, that there is a ptrsonal covenant on the part of the master in this hypothecation ; and i lat according to what was said in the case of Meneton v. Gibbon^ (3 T. R.) such covenants are not cognizable in the Courts of Admiralty, What Judge Ihiller has said in that case on this point, is merely this, " that in the struggles which " have taken place between the Courts of *' Common Law and Courts of Admiralty as "to the extent of their jurisdiction; thp "former have said, that if lhe/>a/ct of it, had it vessel. After ^pothecation, 1 nent has been a person well is nature, and I consequences i terms and ex* t. the deed, the oney, together e rate of 16 per ive escaped the all conversant ption, that the interest, /ixeH the risk of this being so muck m rate, can on- liere the risk is e policy of our maritime law, the person taking upon him- self that risk is, us in the case of bottomry, allowed to charge it. On no other ground whatever could he l>e entitled to claim it; and, unless, there- fore, the risk of the vessel in this case was the lender's, the whole would have been an usurious transaction, and one which could not be supported. The framer, therefore, of this deed, aware of the legal consequen* ces following tVc \' the stipulation for the ])ayment of maritiuie interest, did not think it necessary to suy, in express terms, that which was necessarily implied, and resulted, from the conditions of the hypothecation, viz. that the vessel was at the risk of the lender. That she was so, I have no doubt what- ever, and as little hesitation in saying, that had this vessel been lost, the lender's mo* ney, as well as his remedy, was altogether gone ; and >vliatever opinion may be enter-^ tained with regard tu the master's liability in such event as the loss of the vessel, 1 am satistied, that in any action brought against the master upon his covenants, the plea that the lender's remedy was gone with the ves- sel, or otherwise that the contract was an usurious one, would be an elTectual bar to such action. For such a contract, viz. to pay maritime interest in any other event than the arrival of the vessel, would be considered by any Court or Common Law as usurious, and could nut, consequently, be enforced against the master. But it has been, lastly, urged by the Attorney Generaly on the part of the applicants for the prohibition, that it ap« pears by the instrument of hypothecation, «!..»♦ ♦!..» .^ I 4 u:_i. 1 «iL_ >«..-: Ueratioa of the mortgage, was not altogether 1828. Cm** uf til* Scbuoacr Mar« OAKBT & ISA< s>« APPENDIX. I 1828. Case of the Sohoouer Mar- OARBT is. shall seem requi^ site And it is hereby further enacted, that it shall iMui may be lawful for us, by our said charter or letters patent, to allow any person or persons aggrieved by anyjuJgment, decree order, or sentence of the said Supreme Court, to or.n«.al'ihfirefrom to us in council, in such manner, williui such time, and under and subject to such rules, regulations, and limitations, as we, by such chaiter and letters patent, FOR E8TAOLI8UINO THE COURTS, ijQl M\ appoint and direct. Now know yc, that we. upon full conHidoiation of the premises, and of our especial crace certain kiioivled-e, and mere motion, have, in pursuance ond by virtue of the said Act of PaHiament, thought fit lo prant, direct and appoint, and by these presents do accord* ingly, grant, direct, and appeint, that there shall be within our said CO ony of Newfoundland a Court, which shall becalU cd •• the Supreme Court of Newfoundland." And wo do hereby create erect, and constitute the said Supreme Court of Newfoundland to be a Court of record ; and do direct and appoint that the same shall be composed of andholden by one chief jiid-e and two assistant judges. And we do hereby give and grant to our said chief judge rank and pre cedence above and before all our subjects whomsoever' within the colony of Newfoundland aforesaid, and the is-* lands, territories, and places dependent thereupon, exceot- sng the Governor or Acting Governor for the time bein- of the said colony, and excepting all such ptrsons as bylaw or usage lake place in England before our chief justice o£ our Court of Kings Bench. And we do hereby give and grant to our said assistant judges, rank and precedence within mir said colony, and the islands, territories and places dependant thereupon, next after our said chief iidsre the said assistant judges taking precedence between them! selves according a the priority of their respective appoint- ments to the Bi.a: office, or, where they may be both an* pointed at the same time, then according to their senioritv as barristers And we do further grant, ordain, and appoint that the said Supreme Court of Newfoundland shall have and use, as occasion may require, a seal bearing a device and impression of our royal arms, within an exergue or \Z bel surrounding the same, with this inscription «• The «'^f of the Supreme Court of Newfoundland." And we da hereby grant ordain, and appoint that the said seal shall be delivered to. and kept m the custody of the said chief judge. And we do further grant, ordain, ^d declare th^J K^.'?'*,i*l\^^.•'"^^® ^'?'* assistant judges, so long as ther shalf hold heir respect,,e offices, shall be entitled t^havl and receive the following salaries, (that is tr> say) «ur aa^^ chief ludsre. a salarv of one ihnnBQ«#i #«,^ u ^ '^''. ■•»tt Sterling money, by the year; and each"oroT ^^^i I 5jj2 COPY OF THE ROYAL rilARTER iudircs a salary of seven hundred pounds, like stcrlin- mo- nev iVthe year. And our Governor or Aet.n« Cove, no ?5;hr time boins of the said coh)ny. in hrrcby direrlci Ind rei^e t^ ca"He sneh salary lo bo paid to the naid "'"„' tXina^a dee are that tiie said salary shall com- ^±«nrtake place, in respeet to any person xvho shall r rlident \n GrC Britain or Ireland, at the time of h.s ^° -rirnt uDon and ft on uhich any sueh appointn^^ent, upon ami 1^^^^ (j^eat Br.- r-n or fid fo N^^^^^^^^^ ""^ ^« take upon hnu tarn or "^'^"VXiVsaid office ; and that the salary of any the execution of the sau^^^^^^^ ^^^^^ ^^ ^^^ ^. .uch ^'"«<'J"fSO^^^^^^^^^ iulNexTfoundlnnd, aforesaid. ""l^u '^Ceme and take plaee from and after bis taking "^''^l S the execution of such his office, and thai such '"''rJZn be in^feu of all fees of office, perquisites cmo- r^I^J^ts a^d a^^^^^^^^^^^ whatsoever, and that no fee of office, Sslie em^^^^^^ or ad Yantage, whatsoever, other th«n ^j\!Jrnt the said salary, shall be accepted, received . or ta- r hr«?chSj^^^^^^^ or assistant judges, in any manner or ken by «"^^,J^^^^^^^ whatsoever. Provided,neverlhe. r*7h^t ilTaKI^^^^^^^ for the said chief judge or ass.s- l^'';i.?,?i« to occ^^^^ and inhabit any official house or re- ^^^liXiS'^ihesmX colony of Newfound and, wh^l. f'llhPPn or may hereafter be provided for the.r or an .1 ^K^S-Senceand occupation, without paying to us «u their "^e^^aence ami p ^^^^ ^ ^^^ ^^^^^^ heirs and successore an> ^^^,^ ,^^^^^ ^"*°^^S?esiLcra^l 0^^ And we or official residence ain ^^ ^^^.^^ jg^ r T.'iT shallle'ca^^^^^^ of accepting, taking, or per- foundland. ^h^^ °® ^^^^^^ of profit or emolument, on pain ST^^r^cceotance TLy^^^^^^ other office, or places *r^* Jl5 Tall b "and be deemed in law, de facto, an ayoi- Bforesaid, shall be ana ^,^1^^ j^jge or assistant judge, sance of the ©"^ce oi^sucn^^^ j^^g.^^^^^^^^^^ ^^^^^^ ^^^ r tred HaTe'cTased Icc^Vd^iagly'rf^^^^^ ^^ time oi •thTceV^^^^^^^^^^^^ BUCK other office or place. And r^ FOR CHTAnLUIIING THE CUlRTS. 503 WO do hori'ljy ronntiluto niul appoint our trasty and wdl- bclovcd RicharU Alexander Tucker, Ksq. to be the first cliief jiidt;e of tlic said Suprt'ine Court of Ncufoundiaud, thewuid li. A. Tucker bcin^ u barrister in England of thre« ycaru standing and upwardn. And \vc do hereby constitute and nppoint our trusty and wdl-belovcd Augustus Wallet Ves JJarres and John William Molloy, Esquires, to bo first as- sistant judges of the said Supreme Court, the said ^m^u5/u« frallel Dcs JJarres and John William Molloy being respect- ively barristers of three year^ standing and upwards. And we do hereby grant, direct, and appoint, that there shall be Avithin our said colony of Newfoundland three Circuit Courts, to be held iu each of the threu districts into which the said colony may be divided, in pursuance of the said Act of Parliament. And we do hereby erect, create, and constitute the said Circuit Courts respectively to be Courts of record ; and do direct and appoint that each of the said Circuit Courts shall be holden by the chief judge or one of the assistant judges of the Supreme Court of Newfoundland, aforesaid. And we do direct and appoint that the chief judge of the said Suprtmc Court shall be always at liberty to decide which of the three Circuit Courts shall be holden by him, and that the senior assistant judge shall be always at liberty to decide which of the two remaining Circuit Courts shall be holden trrhim. And we doliefelj^rdain, "appoint, and declare, that there shall be and belong to the said Supreme Court and Circuit Courts, respectively, such and so many officers as to the chief judge of the said Su- preme Court for the time being shall, from time to time, be deemed necessary for the administration of justice, and the due execution of all the powers and authorities which are granted and committed to the said Supreme Court and Circuit Courts respectively by the said Act of Parliament, or by these our letters patent. Provided, nevertheless, that no office shall be created in the said Courts, or any of them, unless the Governor or Acting Governor,|for the time being, of our said colony shall first signify his approbation thereof to our said chief judge, for the time being, in writing, under the hand of such Governor or Acting Governor as nforf>iani(i. Anil wf> tin fiirthpr nrdain nnri flirA/>i' i\\a* nil T , .. — — _,« — ..^^,^P mwtj tilt persons who shall and may be appointed to the several offices of master, registrar, accountant-general, or prothu- '{ £04 COI'Y OF THE nOYAL CUAUTER flwi V ft ^H nir 1 i 'i ; Wt ami 1 ■I notary, oi the said Siiprrnie Court or Circuit Courts of Newt'oundland, or t' any oUico in the said Courts, or any of tiiem, whereof the duties shall correspond to those per- formed by the master, registrar, accountant general, or pro- thonolary of any or eitiier of our Courts of record at West- minster, shall be so appointed by us, our heirs and succes- sors, by warrant under our or their royal sign manual, to hold such their olhces during our or their pleasure; and that all persons who shall and may be appointed to any other office within the said Supreme Court of Newfound- land, or within Uie said Circuit Courts of Newfoundland, shall be so appointed by the chief judge, for the time be- ing, of the said Supreme Court, and shall be subject and liable to bo removed from such their oftices by the said chief judge upon reasonable and sufficient cause. And w« do hereby authorize and empower the said Supreme Court of Newfoundland to approve, admit, and enrol such and so many persons, having been admitted barristers at law, or advocates, in Great Britain and Ireland, or having been ad- mitted writers, attornies or solicitors, in one of our Courts at Westminster, Dublin, or Edinburgh, or having been ad- mitted as proctors in any Ecclesiastical Court in England, to act as well in the character of barristers and advocates, as of proctors, attorneys, and solicitors in the said Supreme Court of Newfoundland, and which persons so approved, admitted, and enrolled, as aforesaid, shall be, and are here- by authorized to appear, and plead, and act for the suitor of the said Supreme Court, subject always to be removed by the said Supreme Court from their station therein, upon reasonable cause. And we do further authorize the said Supreme Court of Newfoundland to admit and enrol as barristers, advocates, attorneys, proctors, or solicitors therein, such and so many persons as may have served a clerkship, under articles in writing, for the term of five years at the least, to any barrister, advocate, proctor, attor- ney or solicitor of the Supreme Court aforesaid. And we do declare that no person or persons, otherAban the persons aforesaid, shall be allowed to appear, plead, or act in the Supreme Court of Newfoundland for and on behaK of the suitors of the said Court, or any of Uiem, Provided always, and wo do ordain and declare, that in case there shall not Ml. :uit Courts of iourts, or any to those pcr- •ntnal.orpro- Old at West- » and succes- in manual, to ileasuru; and intcd to any f NewfomuU cwfoundlanU, the time be- I subject and by the said ise. And w« upreme Court >1 such and so ters at law, or iving been ad- of our Courts ving been ad- tin England, nd advocates, : said Supreme 80 approved, , and are here- for the suitor > be removed therein, upon srize the said t and enrol as or solicitors have served a le term of five proctor, attor' lid. And we tan the persons or act in the behaW of the ovided always, there shall not FOR ESTAOLISilING THE COURTS. G(J5 be a siiflicirnt number of such Imrristcrs nt Ian', advoralrs wnlcrn, attorneys, solicitors and proctors, or of pmons Jt adiHilUd anil enrolird, as aforcHaid, to ad us »uch within tlio Haul colony, competent and willing to appear and act lor tlio Minors of the said Supreme Conrt. then and in that case the said Supreme Court of Newfoundland «liall, and Is liercby authorized to admit so many other fit and proper persons to appear and act as barristers, advocates, proctors, attcjrneys and solicitors as may be necessary, according to such general rules and qualifications as the said Supreme Court shall for that purpose make and establish. And wo do hereby authorize the said Supreme Court to make and prescribe such rules and f nlersas to them may seem expe, dient and necessary, with regard to the admission of per- ■ous to practice the law, and appear and act in the charac- ter of barristers and advocates, proctors, attorneys, and solicitorsjn the said Circuit Courts respectively. And we do hereby ordam and tieclare, that the Governor or Actinff Governor for the time being, of the said colony of New- foundland, shall yearly, and on the .Monday next following the first day of January in each year, by warrant under his hand and seal, nominate and appoint some fit and proper person to act as, and be, the sheriflT for our sair! colony of Newfoundland and its dependencies, other than except the coast of Labrador, for the year ensuinjr , which sherifi; when appointed, shall, as soon as conveniently may be, and before he shall enter upon his said office, take before the Governor or Acting Governor of our said colony an oath faithfully and impartially to execute the duties of such his office ; and such sheriflT shall continue in such his office during the space of one whole year, to be computed from the said Monday next following the first day of January jn each year, and until another sheriff shall be appointed and sworn mto the said office. And in case any such sherifi- shall die m his said office, or depart from our said colony of Newfoundland and its dependencies, then and in such case another person shall, as soon as conveniently may be after the death or departure of such sheriff, be in Jike nionner appointed and sworn in as aforesaid, and shall continue m his office for the remainc].^rnf ii.o ««o, .,„.j until another sheriff shall be duly appointed"and"8ivora 5G0 COPY OP THE ROYAL CHARTER II ' ri |;i| ' ' IL H S|L' ; into the said office. And we do further direct ^"/^ W"'* hat it sliall and may be lawful for the Governor or Acin g Governor of the said colony to renew »rom yea-: to yc.u the appointment of the same person as s^ierift « «^^/^^^ colonv and ts dependencies; and that m seiecimaiiic person to be appointed to the execution and discharge o Fhe saVoffice the said Governor or Acting Governor sliall conform to su^^^^ "' "'"^ frorn tU^e to ime be signified by us, our heirs or successors, In him through one of our or their principal secretaries ol 8?a e And wedo further direct that, before entering upon ie execudon of the duties of his said office the said she^ lia' ^UaU pnter into a recognisance to us, m tne saiu slrme Coirt of P!ewfo«ndrand, in the sam of five.thou- ..mrZunds with two good and sufficient sureties in the 1 oUwo tbo-and founds each for U.e due and a.thfu £!r£?S' t» sherZ,::l>t:r-the^^ Mf fnv of each calendar month, produce before the chief judge L. of the ass"stant iu.lgcs aforesai.l, a written accoun f nlTil?e money by him „? by hi« lawful deputies received 31?". he ca":uda'r month last preceding. ^1,?""";= '- fn .bcation thereof, so far as the same may by hira or them SebeTapplied.and also stating the exact balance « such monies hen Remaining in the possession o himself o his said deputies, so far as the returns received from sue A !?/»« enable I im to make out the said accounts. And ••'P 1 fnrthtr orde" that the said chief judge or assistant ^*ll, as he case nav be, shall cause the said account to Te Sublicly exhibUedl^ the office of the prothonotar, or be publicly exniune Court for the space of one 'Tn^r month next afteTthe same shall have been so ren- Ser^d Sill Uten cause the same to be enrolle.l amoni' t-."'f ?!.!!;.^fiifrs,.id^;::r;^\nr. "^^^ '*i',»'bvTheTnsei"v';s;'r" their sufficient deputies to be U, tm'aiH.oi»I"' -'d ''"'y -""»"^"'' """*" their respect..^ I'OR ESTAnLISIIING THE COURTS. 6G7 and appoint Of or Aciiiig jroar to year for our said selecting the discharge of overnor shall ands as may or successors, secretaries of entering upon he said she- in the said of five thou- irelies, in the e and faithful nd for the due noney as may ceived by vir- said Supreme And we do the first Mon- Lhe chief juilgc •itten account (Uties received id stating the y him or them act balance of I of himself or ved from such :counts. And ^e or assistant aid account to rothonotary or ,e space of one ve been so ren- ?nroUed amonij further order, his snccrssors lutics to be by their respective ■i? hands and seals, and for whom he and they shall be res- ponsible during his or their <;onrinuance in such oflfice, ex- ecute, and the said shcrifl", by himself or his lawful depu- ties, is hereby authorized to execute the writs, summonses, rules, orders, warrants, commands, and process of lhe said Supreme Court and the said Circuit Courts, and make return of the same, together with the manner of the exce.utioa thereof, to the said Supreme Court and Circuit Courts res- pectively, and to receive and detain in prison all sulIi per- sons as shall be committed to the custody of such sheriff by the said Supreme Court and Circuit Courts respectitely, or by the chief Judge or assistant judges, or either of them. And' we do further direct, ordain, and appoint that when- ever the said Supreme Court, or any of the said Circuit Courts shall direct or award any process against the said sheriff, or shall award any process in any cause, matter, or thing wherein the said sheriff on account of Jiis being related to the parties, or any of them, or by reason of any good cause of challenge which would be allowed against any sheriff in England, cannot or ought not by law»to exe- cute the same; then, and in every such case, the said Su- preme Court or the said Circuit Courts, as the case may be, shall name and appoint some other lit person to execute and return tln^ same. And the saifd security shall be entered into within three months, from the dale of such petition, for leave to appeal, then and not otherwise, the said Supreme Court shall al- low the appeal, and the parly or parties appellant shall be at liberty to prefer and prosecute his, her, oi their appeal to us, oiir heirs and successors, in our or their privy coun- cil, in such manner and form, and under such rules, as are observed in appeals made to us from our plantations or co- lonies. And we do hereby reserve to ourself, our heirs and successors, in our or their privy council, full power and authority, upon the humble petition at any time of any per- son or persons feeling aggrieved by judgment, decree, order, or sentence, of the said Supreme Court, to refuse or admit his, her, or their appeal therefrom, upon such terms and upon such limitations, restrictions, and regulations as we or they shall think fit, and to reform, correct, or vary such judgment, decree, order, or sentence ; as to nsorlhem shall seem meet. A;id it is our further will and pleasure, that in all cases of appeal allowed by the said Supreme Court, or by us, our heirs and successors, the said Supreme Court shall certify aud transmit to us, our heirs or successors, in our or their privy council, a true and exact copy of all evi- dence, proceedings, judgments, decrees, sentences, and or- ders, had or made m such cases appealed, so far as the same have relation to the matter of appeal, such conipg ijeing under the seal of the said Court. And we do furfher direct and ordain, that the said Supreme Court o£IV«w- 1 I I 574 COPY Of THE BOTAL CHARTEH. foiindland sliall, in all cases of appeal to us, our liens and successors, conform to and execute, or cause to be execu- ted, such judgments and orders as we, our heirs and sue- cessors, shall think fit to make in the premises, in such manner as any original judgment, sentence, decree, or de- cretal order, or other order or rule of the said Supreme Court of Newfoundland, could or might have been execu- ted. And we do hereby strictly charge and command al governors, commanders, magistrates, ministers, civrl and military, and all our liege subjects within and belongmg to the said coUny, that in the execution of the several powers, jurisdictions, and authorities hereby granted, made, given, or created, they be aiding or assisting, and obedient in all things, as they will answer the contrary at their pen . Provided always, that nothing in these presents contamed, or any act which shall be done under the authority hereof, fihall extend, or be construed to extend, to prevent us, our heirs and successors, as far as we lawfully may, from re- pealing these presents, or any part thereof, or from making such further or other provision, by letters patent, for the administration of justice, civil and criminal, whhin the said colony, and the places now, or at any time hereafter, to be annexed thereto, as to us, our heirs and successors, shall seem fit, in as full and ample manner as if these presents had not been made, these presents or anything herein con- tained to the contrary, notwithstanding. In witness where- of we have caused these our letters to be made patent. Witness ourself at Westminster, the 19th day of Septem" ber, in the sixth year of our reign. By writ of privy seal. [f i •pm r lieirs and ) be execu- i and suc- les, ill such ree, or lated dama- ' ten pounds •ceding rule, tbrms of ac- fendant is at h as seem to ircumstances eing much of Court, under leavoured to J may supply 1 only be rc;- (/ grounds of ime to time, the Attorney Jury; which led to attend endeavour to ters as nearly I in England. ,C*70CQ TT i I i w^-* ground shall be laid for snch an indulgence ; and the party applying for it will always be required to submit to such terms and conditions as to the Court shall seem just and reasonable, VII. The course of proceeding heretofore pursued relative to the granting of Probates of Wills and Letters of Adminis- tration will, for the present, be continued in the New Probate Court ; but the Judges will lose no time in at-< tempting to iutroduce such improvements therein as they may consider it susceptible of.— The following Table ex- hibits a list of the fees which will henceforth be received by the clerk of the Probate Court. FEES TO BE TAKEN IN THE PROBATE COURT. Under 10 o • • 20 ..0 40 .. 100 1 .. 200 1 . . 350 9 a. il. 5 7 6 10 12 8 Under 500 2 12 6 750 3 10 1000 5 1500 ....^10 . . 2000 .... .^ 16 00 ., 3000 30 vin. In addition to the regulations prescribed by the Charter touching the office and duties of the Sheriff, the Judges only feel it necessary to declare, that he will not be re- quired to execute the Process of the Court, either by him- self or bis deputies, beyond Twillingate in the Northern, and Cape La Hune m the Southern, district of this Island. For the execution of Process within these limits, the fol- lowing fees will be demanded and received by him : ex- cept in those particular instfl&ces where, in consideration of the poverty of the party, or other peculinE circumstan- ces. the Court shall see fit to direct that no fee shall be exacted by him for the service of Original Process. ( 4d i if ft7» 6ENBRAL KULiS ANU QBUER* ORIGINAL PU0C£S9u I 17nd«r K) 15 • • • • 9U .... 80..... • •. Under £ 300 400 fiOU 1000 1500 2000 By Sam. < t. (f. 2 12 U •2 G 2 U 2 12 3 3 4 •7 10 Dy At. £ 1. c/. 3 15 4 7 4 10 6 3 7 3 a 7 12 £i 1 o:: Dy Satan. « «. »'. I A. '■'*')r5'«i Rhenffwill alsojceceive such fees upon all proceed- mL 1xi' -^ ' the L'v *^y«i*^e P^ the Court as shall, from time to tuut, be authorized by the Judges, upon a fair cob' fcicleralioii of the circumst«inces of each cas^. Afy\m\\ .^li--S ■■■■'■■■'■ '■■■■■^' ■ c''^','."'.i'";rv. J -/Original Writs have been framed in the foll.TynH l»HU;3U'> i»?jff|^'« •'■■"*• '•'• Some of those wrus art-, m. i«v;i, iiuimitp "-•"■ » — - iummonsds, detailing the nature of the plaintiffs com- 'A- ^W 0¥ 'XHV iJlPREME COURT. •> 67U y Sum. id. 2 12 2 U 2 U 2 12 U 1 10 6 ny At. £ I. f/. 3 15 4 7 4 10 U 6 a 7 7 a la ao vhere the valuo Ql. t • ■ • * Jiiry, J^l 2 6 Jury^ 5 £0 10 :e, ac- on all proceed- rt as shall, from ipon a fair con* , ,a . I .''I Mil ';•' i iVer,' ■■■.■"' m .-»!•*» ilian mprft plnint; b U in those forni'^ of notion which admit of At- TACHMKNT, (>ii;;iij tl wHts, atluptcd to that couTso of pro- ceeding, iiuvc likewise been prepared. , XII. "tn To tho forr^^oin?: writs the defrndnnt wi ' he entitled to plead: In Ashumi'sit — lat, Thit the defers^ant did not undertake aniuu ; 'Jd, The Statute of ^Limitations. TuKsii^Ass — Ist, Not (judty; 2d, The Statu tions. Jn lijEcnviENX — Not Guilty, XIII. Writs may be sued nut in Vacation, as wt as during .Term; and when th» defendant shall reside tvithin ten iJtiles of the Supreme ( ourt, there shall be fou: days, at .least, allowed between the teste and the reti a of the •.writ, in other cases i le return will be regulate by cip- i^umstances, in such a \ ay as to allow a reasonable iifB«j to the defendant to appear and. plead. : iu-auL -XIV. ■' ' Uiij' *' ,'J/'i!.t The plaintiff, on the lay before the returii ot^hp'^yiixli, tnust file with the Clerk f the Court a bill with tbeparJUeU'* larsofhis demand; and . a actions of tresp^^^nd'asiPU^* Isit^such bill fehall also be annexed to the cqpy 6t tj^^ or|g^- lial writ, which is in all cases required toiie,^effjwiik|ll^ •(" ihe Con- In Case and of Limitar defendant. XV. plaintift''s com- = T^edrf'endant riiust fife his i)tea wilh '"it^^'lcierk oif^UiB -Court before the (tfp^hin^ thereof, ^th^. M"Wn^|St the writ is returnable.' in pi eadihg a setoff he niust annex n hill nf nnrllpnlnra in hid .ntso • anri mU^m^ U^ oknll k» i_ — j-_ . .,,, _ — ,,, ^ «i»vt TTis-_:c »i- ouaxK jjc 4«^(I9 pf j?RHrii^g#)»X6(pl |^^»s, Qpffidiitioiiifbrf^lda^to i I •>i "^ ^Wi GENERAL BULEt AND ORDERS W - ^0 so must be previously made to one of the Judges of the Court. The Clerk of the Court shall keep a book, in whith an entry shall be made of all writs and plena ; and this book shall be submitted to the Judges at the lime of trial, for the purpose of apprizing them of the matter in dispute between the parties. XVI. All actions shall be considered as liable to be tried on the day after the return of the writ : and where the plain- tiff shall not be ready for trial at that time, the defendant may move the Court for an immediate hearing of the case. XVII. Judgment will be given two days after the trial, unless some cause shall be shown in arrest thereof within that period. XVllI. No judgment by default will be given against a party, unless upon the most clear and satisfactory evidence of the doe service of the writ upon him, or bis accredited agent. If the cause of action be a debt, a specific chattel, or liquid dated damages, the plaintiff will be required, upon obtain- ing judgment by default, to make oath to the amount or value thereof, and this will entitle him to an absolute jud^ ment for the amount sworn to, unless the defendant shall move, within six days, to have the judgment by default set aside. But where the amount of the damages shall be un- certain, the defendant shall be served with a fresh notice to attend the Court for the purpose of having those dama- ges ascertained by a jury : and on his neglect to obey this ■ammoni, judgment will be entered against him for the Bum claimed by the plaintiff in his original writ. XIX. The only writs of execution which the Court will, for the present, make use of, are, a^m/a(flta«^a^iat¥ iacitfttdiim— and a writ of possession. , ut * XX: >9ni6 sheriff will keep d list of persons qualified to serve .n; If I Judges of the k, in which an and this book of trial, for the lispute between e to be tried on fhere the plain- , the defendant ng of the case. le trial, tintesfl reof within that against a party, evidence of the credited agent. chattel, or liqui- [), upon obtain- the amount or n absolutejud^ defendant shall it by default set ges shall be on- tb a fresh notice ing those dama- lect to obey this linst him for the writ. Jourt will, for the -acapiasads^iiji' aalified to *enre or THB SUPREME COURT* 681 US grand Jurors; in which will be entered, in alphabetical order, the names of all the principal merchants and gentle- men of the town; and four days before the commencement of each term, a written summons shall be sent to twenty- three of the persons mentioned in this list (beginning with the letter A, and proceeding regularly through the whole alphabet,) commanding them to attend the Court at the opening thereof. The persons so summoned will form the grand jury for the whole term ; and will be liablelo attend the Court during the cotitinuance thereof, at such times as the judges shall direct. XXL A fine, of from 50f. to £5 will be imposed upon every grand juror who shall neglect to attend the Court after ha« ving been regularly summoned to do so ; unless his ab- sence shall be excused by a certificate of sickness, under the hand of a respectable medical practitioner, which must be delivered to the clerk of the Court before the opening tt^ereof. And if the non-attendance of the juror shall ap- pear to have been occasioned by any neglect of the sum- nioninj^ officer, the Court will inflict the same fine "upon him which the juror would have been liable to, had the summons been regular. XXII. » Special jurors will be taken from the list of grand jurors in the following manner: — Beginning with the gentleman whose name shall stand next on the list to the last nf the grand jury, the sheriflT will summon eighteen persons to attend the Court on the day appointed for trial : and whea^ ever another special jury shall be ordered, the sheriff will, in like manner, summon eighteen more of the gentlemen on the grand jury list; taking care to begin, in this in- stance, with the name of the person who shall stand next on the list to the last of the gentleoitn on the former spe- cial jury : and repeating the same operation upon every other application for a special jury until he shall have gone through the whole list thereof. — ^The names of the eighteen persons summoned to attend as special jurors, shall be put into a box ; and the nrst twelve that shall be drawn frota thenct shall form the jury for the tri|l of tbo cause, unlosa i H 4 % GENERAL BULEtt AND OBDEIS ia legal objection shall be made to atiy of them ; in whick case the place of the party so objected to shalJ be supplied :by another name to be drawn from the box; And if in consequence of challenge, or of the neglect to attend on (the part of the jurors summoned, itwelve fit and proper per- sons cannot be found, the Court will, at the prayer of ei- thfer party, dh-ect the sheriff to summon instanter a further number of persons from the list, sufficient to supply the ideficien ■ XXIV. ■ ■"' •-■iii. »*?«;■»■> . All 'persons possessing real property, to^^nf arriouni; br occupying any house orteheraent of the annual rent or va- lue of twelve pounds, within three miles of the court-houAe» and the sons of all such persons, during their residence with their fathers, will be liable to serve as petty jurors, "with the following exception : — All persons, under 21 and above 60 years of age4 'Magistrates. ... Officers belonging to, and persons practising in, the Courls. Clergymen, the ministers of the gospel in aIL religious congregations, and schoolmasters. vr!- i Doctors of medicine and practising surgeons. oJ Persons whose names are enrolled on the lists of grand •and special jurors. ' .■ . '-'^ XXV. '''**)t*^e sheriff will keep a list of all persons liable to SierVe as petty jurors, in which their names shall be inserted in alphabetical order. . i.}.*.! ...-,*;. • -■ ^ ■;•-; •-• YVVf '' ' ''' ;»M Four days; before thie coniittaenceraent of each i term, the sheriff shall cause 18 of the persons whose names afKpear (first on the jury 'list (commenomg! with f be. letter A); to: be summoncfd'to alleKd>th6 Siit>r«tn& ClouHt ooithe first day of iw «iiti0g } and tsbal^iiu: like «ciaim^r» on each saooeediill m!) n % «*- iii., »mi i t ttxMki^*- THB 8UPB&BIB COUKT. S83< Bm; in which EtU be supplied Ki And if in to attend on »nd proper per- prayer :of ei- tnter a further t to supply the •; v!j >e q,llowed ohe e the verdict is ny attibunif'bV lUal rent or Va- hecourt-hou6e» ;heir residence 8 petty jurors, of age. ctising in, the in all religjlous jons. le lists of grand liable to serve il be inserted in l,clJ , t* . , ?> in ; VUfj, I' . each terra, the le names afxpear letter A); *o: be y the first dayiof eacb-socoeediiig day, summon 18 more, according to the order in yhirh they stand on the list, to attend the Court ou the fourth day/ from the date of the summons. ,, When the sheriff shall have gone'through the wftdfelT^t'ciif^ jurors he will, of course, repeat the same operation; be- gmnmg from the top, and taking care that there shall al- ways be 18 persons summoned, in the mode already pre- scribed, to attend the Court every day . dnting term, XXVUJ. The summons shall be printed, or wrftten, and delivered, personally to the juror, or to some member of his family, at' his house, or usual place of residence, * ^The persons summoned shall be liable to tttend the Court the whole day for whiob they are summoned, n u/j XXX. : , Befpre.jthe trial of the first cause, th« names of th6 18 J^rQrs, jvntten upon separate slips of paber, shall be pat m^o al^ox by the clerk of the Court, and , the -first twelve Ijftn^es drawn by him from thence shall, ifthe^ebend ground of challenge to any of them, form a jur/ for the trial of all causes which may be heard on that day: the jury being, however, in each case, sworn to well and truly try the issUe joined between the parties, and a true veidict td givcj according to the evidence. ' '*^ f^*'^*^'' ^»> » Hf; ■ f If any of the 12 persons whose names shall first be drawn from the box shall be set aside on account of challenge, their places shall be supplied by some of the remaining TjJ^f''^^ H?T' «»»^» afterwards, in like manner, be drawn from the box ; and if by these means the number ef twelve competent jurors cannot be completed from the persons summoned the Court will direct' the sheriff to make up the jury from the persoiis then present in CourL ■ '"XXXII. .Jf^r^^A^ '?^ atiendance as easy as possible to the ju- rors, the Court wdl, as soon as a jury of twelve persons i I, S84 GENBBAL RULBI AND OtDEBi shall have been formed, permit the rest of the persons viho were summoned to return to their homes : and if "P«>n a subsequent trial, any members of the origmal jury should be objected to on the ground of interest towards either ol the contending parties, their places shall be supplied by a tales de circumstantibua, • XXXIII. Oa the other hand, the Court will most rigidly enforce the attendance of jurors by imposing a fine of 30s. m every instance where the absence of the juror shall not be ex- cused by illness, to be certified to the Court, before the hour when the party was bound to attend, wjder the hand of some respectable medical practitioner. The fine ta be immediately levied by distress: and where sufficient goods cannot be found to satisfr the distress, the parly against whom it itsued shall be imprisoned, imder an order of Court, for the space of 48 hours. XXXIV. If the non-attendance of the juror shall have been occa« sioned by any culpable neglect on the part of the summon- ms officer, the latter shall be subject to precisely the same fine and penalties as the former would have been liable to had he been duly summoned. XXXV. A chargo of one guinea for the jury will be allowed in ihe bill of costs, in every case where the party shall not be excused, ou the score of poverty, from paying fees to any officer of the Court. XXXVI. Barristers at law, or advocates, of Great Britain and Ireland, or admitted writers, attornies, or solicitors in any of the Courts at Westminster, Dublin, or Edinburgh, or ad- mitted as proctors in any Ecclesiastical Court in England, will at all times be permitted to practise in their respective characters, upon producing certificates of their admission by the Courts to which they respectively belong. XXXVI!. Persons who shall have served an apprenticeship of five ^f'-i >.»V> »IHii..»«»^ . i* • i^iii ■l<'I^M persons who d if upon a I jury should ds either of supplied by gidly enforce ' 30s. in every Eill not be ex- rt, before the 4er the hand he fine to be Efficient goods parly against IT «n order of ire been occa« fthesummono sely the same been liable to le allowed in ly shall not be g fees to any t Britain and licitors in any inburgh, or ad- rt in England, lieir respeclive heir admission belong. ticeship of five OF THE SUPREME COURT. 585 years to any barrister, advocate, proctor, attorney, or soli- citor, of the Supreme Coukt, and who shall be found, upon examination by the judges, to be duly qualified to practise in any of those characters, will be permitted to do so. XXXVlil. The judges will attend in their chambers, on Monday the third of April next, for the purpose of examining such gentlemen as may be desirous of obtaining permission to practise in the Court; and certificates will be granted to those who shall appear to be competently qualified. The privilege of practising will, of course, be confined to the persons to whom these Oertificates shall be granted. XXXIX. The judges only feel it necessary, at present, to limit the fees to be taken for those duties of the attorney, which ne- cessarily arise out of their regulations concerning the prac- tice of the Court; and they therefore purpose to adopt the following scale : — For suing out a writ, when the plaintifi"! ^^ g ^ proceeds by summons only i For suing out a writ» and preparing an > n 10 O affidavit of debt i For filing a plea 5 For the conduct of a cause, either for the'J plaintiff or defendant, to final judg- \ 1 1.0 metit and execution.. ......... .J XL. The above stated fees are adapted to the condaot of a common cause under usual and ordinary circumatancci-^ in other cases adclitional (ees, qommensurajte totlieser* Tice actually performed, will be allbwed by the Odurt. The registrar of deeds will be authorized to cnai^e tih» following fees : — i .- For the verification, indorsement, and registry of a deed, or win, under £100,-105. Arid when the. value exceeds £100, a per centage at the fate of one per ceai, for^tha first £100; iittd d$, in ihe £.100 for sdl above that' ataiooiit, 4b '; ' ^80 GEN£RAL RUL£8 AMD ORDERS If the value of the property to be registered shall not ap- pear with sufficient certainty upon the face of the instru- ment, it must be ascertained by the oath of the party ten- dering it for registration. For the registry of every grant of land, "> i?rt r a under 100 acres J • *" *^ " And for grants, exceeding 100 acres 10 For every cerlidcale, from the record 5 For an inspection of the record o 1 XLII. The expenses of prosecutors and witnesses in criminal cases will be allowed, agreeably to the provisions of the statute of 25th Geo. II; c. 36, 27th Geo. II. c. 3, and 18th Ueo. III. c. 19, under an order of the Court; and an al- lowance will also be tnade in some cases, not within these statutes, where it shall be made to appear that a failure of justice would ensue if the costs of prosecution were to fall upon individuals wholly unable to defray the same. M' XLIII. Fuel, candles, stationary, and all other necessaries for the Court, will be provided by the Sheriff, from time to time, under the order of any of the judges thereof, and charged for by him in his public account. xnv. Copies of the forms of writs and other parts of process are appended to these regulations. XLV. Rules respecting the conduct of business, and course of proceeding, in the Circuit Courts, will be framed and pub- lished in this Court in the course of the present month. XLVI; Supplemental regulations will also be added from time to time, as circumstances may require. XLVIl. Among the persons who are to be exempted from ser-« yisg on Jurlegi. iae Judges deem it necessary to include — The Officers of His Majesty's Customs, and all other ^«>-Hlh*'» **^''*^ -r V »•/-* •'■■^^ OF THE 8UPRKME COURT. 587 ed from time U'l-A persons actually and bond, fide employed in the Public Service. XLVIII. Where property is held in co-parcenary, joint-tenancy, or in common, any of the parties who wish for a partition thereof mav sue out a writ, in the followiii^ form, against all those persons who have a joint-possession with them of such property, and refuse to make a fair partition of it : George the Fourth by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, &c. &c. To the Sheriff of Newfoundland, and his Deputy and Deputies, Greeting : Command E F to appear in our Supreme Court of New- foundland, on the day of to show wfiere* fore he denieth partition to be made between him and A B and C D of [here state the nature of the prc^ pertjfy with such a description of it as would be necessary in a conveyance] which he holds together with the said A B and C D, as they say. And you are commanded to make return of what yttu shall do upon this writ, at the time and place above-mentioned. , . J Witness, the Honourable St. Johns, Newfoundland, the day of in the year of our Reign. _ ' By Order of the Court, . Clerk Supreitie Court. xux. This writ, like all others, may be sued out in vacation as well as in term; but there shall always be fifteen days, at least, between the teste and return of it; and if the tenartt shall not then appear, the Court will require that proof shall be given of the due and regular service of the writ, by an affidavit to the following effect : {A B and C D Demandants,^ and E F Tenant. oprl Y 7. nf Newfoundland,, several W X Sheriff VI Officers to the thatiey the said Deponents did, on the day of r I \ i f 588 GENERAL RULES AND ORDERg f*'< in the year of our Lord :th« above-named xt..ia,iywiin me writ of partition in this cause, by deli- vering to and leaving with the «aid E F a copy of the said v^rit. and acquainting him with the contents^ thereof -and these deponents did on the said day of i ?he ni Jn5- T vT ^'"^ ^«"^^' t° ^«d leave with R S ^nd T y the occupiers of the Messuages, Lands, and s^me Writ "^ ''^^^'^' '"'"*^""'^' " ''^^ copy of the Sworn Before me at this day of &c L. «fc?M?^''l^'cPr°°u**^*^®*®*^'*^® o' the Writ, the Court SI ^f satisfied that a reasonable and sufficient time has bv5 th^'Ii'^'V?^^?^ ""^7 '^^ command conveyed by It. the demandan 8 will, on the tenant's then neglecine nnd^tEfr'.*!S P«"°»«edto enter an appearance for him ; S?lt «Sh S"'* ""'"//^^^^^ *^ examine the demandants' title, and the quantity or proportion of the property to ^h.ch they are entitled: and accordingly as they shaU fo'l'li^' "'7"*.^"°^'."^'^^ ^'^^ proportion to be, th^ wi Writ inTt ^^« J«^S°>l°t by Default, and awaM a «!«l K «V»^e partition whereby such part and proportion t"ese /em*?"* '^'^'""f ' which Writ sfiall be expressed George the Fourth, by the Grace of God. of the United o%e'^rh!inc^"^^'^^"' '-»-^' kingK^r To the Sheriff of Newfoundland, and his Deputy and xvu «„, I^ePWUes, Greeting: ^.Z^'^^n ^ ^' h^^^ ^«« commanjJed to be in oor ?"Pf °i« Court of JVewfoundland. to answer A B and CD VVi&t. '''^^"P'^"^ ^^^^^ ^ ^ and <.^ O ana the said E F held together and undinM [Me the proplkinfhe same manner as in (he original mitl and thf said P P Z mi^t'ed'^'nn/l"" ''"^^^^^^ TfZJ"^ '^°?^ '""'^^ *^^"^'.?^ *h«y «aid ; and the said comLnH n?P^"*"5 in. our said Court according to the command of our said writ,^ our said Court did proceed to •Note, tbat fMl. If lh« serf iet wts upon an age^t. ibt elEdaTit mait coufora to ".^•Jf^\ ...-''*■■ R8 e-named :ause, by deli- opy of the said ts thereof; and of in the Qd leave with eg, Lands, and rue copy of the lay of &c. Vrit, the Court icient time has land conveyed lien neglecing ranee for him ; ! demandants* e property to as they shall be, they will and awaird a nd proportion | B expressed in |. of the United I ing, Defender i Deputy and ^ d to be in our fl Band CD and the said ropeirhf in the said E F de- em, and per- and the said >rding to the d proceed to most coufora to OF THE SUPREME COURT. fi89 examine the tide of the said A B and C D, whereupon it was considered in our said Court that partition should be made between them nf the messuages, lands, and tenements aforesaid, with the appurtenances: therefore we command yen that, taking with you 12 free and lawful men of the neighbourhood of aforesaid, by whom the truth of these matters may be better known, in your proper person you go to the messuages, lands, and tenements aforesaid, with the appurtenances, and there in the presence of the parties aforesaid, by you to be forewarned, if they shall be willing to be present, the same messuages, lands, and te- nements aforesaid, with the appurtenances, by the oath of the said 12 free and lawful men, respect being had to the true value of the messuages, lands, and tenements afore- said, with the appurtenances^ you cause to be divided into equal parts, and part of these parts to be delivered and assigned to the said A B and C D, and the other part thereof to the said E F, to be hoi den to them and their heirs in severalty, so that neither the said A B and CD, and the said E F, may have more of the mes- suages, lands,, and tenements aforesaid^ with the Jippurte- nances, than it belongs to them to have; and that the said A B and C D of their part to them belonging, and the said B Fof his part thereof to him belonging, may several- ly apportion themselves, and that that partition by you so distinctly and openly made, you have here on under your seal, and the seals of those by whose oath you shall have made that partilton ; and have you then the names of those by whose oath you shall have made the same par- tition, and this writ. Witness, the Honourable St. John*s, Newfoundland, the day of in the year of our Reign. By order of the Court, Clerk Suprj;me Court. LI. When this writ shall have been executed, after eight days' notice o'tven to the occunier or tenant or tenants of the premises, and returned, final judgment will l)e entered ; and the same shall be good and conclude all persons what« .'„ >/ ^.IB* 690 OENEBAL RULES AND OBDERS ■'f l\ ^ it soever, after notice as aforesaid, whatever right or title they have, or may at any time claim to have, in anv of the property mentioned in the said judgment and writ 'of par- tition ; unless such tenant, or person concerned, or either ot them, against whom, or their right and title, such judg- ment by default is given, shall, within the space of one year, or m case of infancy, coverture non sana memorite, or absence out of this island, within one year after his, her. or their return, or the determination of such inability, ap- ply themselves to the Court by motion, and show a good and prob^bJe matter in bar of such partition; in which case the Coart will set aside such judgment, and the cause shall proceed as if no such judgment had been given. But If the Court, upon hearing thereof, shall adjudge for the first demandant, then the said first judgment shall stand oon- FmMED. and shall be good against ail persons whatsoever except such other persons as shall bt; absent or disabled a; aforesaid, and the person or persons so appealing shall be awarded thereupon to pay costs. Lll. . Should any ofthe persons described in the last article and withm the time or times as there stated, come into Court and, admitting the demandants' title, sliow an inb- QUALiTT in the partition, the Court will award a new par- tition to be made in presence of all parties concerned ^if they will appear), notwithstanding the return and filinst upon record of the former; and such second partition shall be good and firm for ever, against all persons not la- bouring under any of the inabilities herein previously mentioned. *^ ^ LIU. The preceding rules are applicable to the case of a judgment given by default upon the neglect of the te- nant to appear at the return of the writ. In the event of Jiis appearing he may either confess the action, ol- plead that the demandants do not hold together with him. 1 .1 ^"^f ^^^®^w«'''«f' Partition, like that described in rule 50, with such sliarht altemtione qq mair i»« « c ♦^ adapt it to the present purpose, will issue to the sheriff immediately ; but the truth of the tenant> plea must be wmmi ts r right or titte e, in any of the tid writ of par- Tned, or either itle, such judg- B space of one Sana memoriee, ir after his, her, h inability, ap- d show a good ion; in which > and the cause en given. But dge for the first mil stand oon- 18 whatsoever, at or disabled ippealing shall e last article, Bd, come into d»ow an iNE- ird a new par- concerned (if lurn and filing :ond partition prsons not la- in previously he case of n lect of the te- 1 the event of ion, oV plead !R WITH HIM. ; described in to the sheriff dea luuet be OF THE SUPREME COURt. £91 ■^1 II 1 tried, within a convenient time, by a jury; nndiftbeir verdict shall be against him upon that point, the demaua- ant will then be eatllled to a writ of partition. LIV. Jf the value of the property, of which the partition is de- sired, does not exceed £100 sterling, the price of the ori- ginal writ will be 10s.: and where the valueexceeds XlOO the original writ must be paid for at the rate of lOs. for the first hundred, and 5s. for every other hundred pounds of the true value thereof. Thus, supposing the value of the property to be jt'lOOO, the price of the origmal writ will be £2 15s. Od. LV. Each of the jurors by whom the partition shall be made will be entitled to half a guinea; and the fee of the Sheriff upon the execution of the writ of partition, will be the same as the price of the original writ* LVI. The whole of the costs will be borne by the tenant, if it shall appear to the Court that the suit necessarily grew out of his refusal to make partition upon equitable terms. R. A. TUCKER. ). W. MOLLOY. A. W, DESBARRES. u; Xi • ■m m fc i UML, ! ^^ i 1 ' ^i .1 yvl GENERAL RULES AND ORDERS OF THE NEWFOUNDLAND. f? oT^ ?*? ^ ^®^*' °^ ®*^®^ <^»"se of action, shall not onm!! V°™ ^^^^" P"""^' «'^'''*»ff' 'l^e plaintiff may commence his suit by a summons, which will command the defendant generally to pay to the plaintiff the sura de- manded by him, or otherwise to appear in Court, on a ei- ▼en day, to show cause why he will not do it. The pro- ceedmgs m all cases where the sum in dispute shall not exceed ten pounds will be altogether summary; and the Court will endeavour to regulate its judgments by those principles of natural equity which wiU afford the most substantial justice to the parties litigant. II. .x^yj^'^.P^^^^ of^ction shall exceed ten pounds sterling, ineplaintiffmay,m like manner, commence his suit by a sarnmoas ; anu where he seeks to recover a debt, chattel, Pr liquidated damages, be may also obtain an attachment GENERAL RULES AND ORDERS. COS IS on, shall not plaintiff may :omraand the the sum de- )urt, on a gi- ;. The pro- te shall not y; and tbe its by those >rd the most ids sterling, lis suit by a ibt, chattel, attachment ogainst the goods, crodits and efTecIs of the defendant, and likewise against liis person, if property to a siiaicient amount cannot be found , upon making an affidavit that the debt, chattel, or liquidated damajrcs, exceed in amount, or value, the sum of ten pounds sterling. III. The judges feel that it will be impossible, upon the fiwt establishment of these Courts, to introduce into them any of the forms of pleading ; and they, therefore, propose to adopt, for the present, the course of practice obgerved in the Supreme Court under its former constitution. IV. In the Central Circuit Courts, all criminal proceedings will be conducted by the Attorney General ; and in each of the other Circuit Courts the presiding Judge will, from time to time, select the most competent person he can find to prosecute in the name of his Majesty. . Commissions for the ex-^mination of witnesses will be granted by the Court, whe tever a satisfactory ground shall be laid for such an indulgence; and the party applying for it will always be required to submit to such terms ^nd conditions as to the Court shall seem just and reasonable. VI. The Sheriff will be entitled to the Fees specified in rules 8 and 9 of the General Rules and Orders of the Supreme Court. VII. Writs may at all times be sued out, returnable on any day during the sitting of the Court; and the parties will be expected to come prepared to pursue and defend the cause on the day of the return of the writ. If, however, either of the parties shall then be able to assign a reasonable ground for the postponement of the trial, he may obtain a rule to that effect, upon his submitting to such equitable terms and conditions as the Court may think it necessary to luipOaC Upon iliut. 4f -'■•tmsmnimiutitmti^, 594 GENERAL RULES AND ORDERS Vlll. I Judgment will be entered as soon as the trial is over; and, where the sum is not appealable, writs of execution may also be immediately sued out. JX. The same writs of execution will issue from the Circuit Courts as from the Supreme Court. X. Nojudgment by default will be given against a party, unless upon the most clear and satisfactory evidence of the due service of the writ upon him or his accredited agent. If the cause of action be a debt, a specific chattel, or liquid dated damages, the plaintiflf will be required, upon obtain^ ing judgment by default, to make oath to the amount, or value, thereof; ai\d this will entitle him to an absolute judgment for the amount sworn to, unless the defendant shall move within two days to have the judgment by de- fault set aside. But where the amount of the damages shall be uncertain, the defendant shall be served with a fresh notice to attend the Court, for the purpose of having those damages ascertained by a jury ; and on his neglect to obey this summons, judgment will be entered against him for the sum claimed by the plaintiff in bis original writ. XI. The Sheriff will keep a list of persons qualified to serve as Grand Jurors, in which will be entered, in alphabetical order, the names of all the principal merchants and gentle- men residing within seven miles of each place where the Court shall sit; and two days before the sitting of the Court a written summons shall be sent to twenty-three of the persons mentioned in this list (beginning with the letter A, and proceeding regularly through the whole alphabet), commanding them to attend the Court at Ihe opening thereof. The persons so summoned will form the Grand Jury for the whole sitting ; and will be liable to attend the Court during the continuance thereof, at such times as the Judge shall direct. YIT A fine of from 30s. to 50s. will l)e imposed upon every .-Il"««l*'' OP THE CIRCUIT COURTS!* 695 B trial is over; ts of execution rom the Circuit against a party, ■evidence of the credited agent. :hattel, or liqui- td, upon obtain- the amount, or to an absolute the defendant udgment by de-> of the damages J served with a irpose of having )n his neglect to !red against him riginal writ. aalified to serve in alphabetical ants and gentle- place where the 5 sitting of the twenty-three of ig with the letter vhole alphabet), at the opening form the Grand )le to attend the iich times as the Grand Juror who shall neglect to attend the Court after having been regularly summoned to do so; unless his ab« sence^shall be^excused by a certificate of sickness, under the hand of a respectable medical practitioner, which must be delivered to the clerk of the Court before the opening thereof: and if the non-attendanceof the juror shall appear to have been occasioned by any neglect of the summoning officer, the Court will inflict the same fine upon him whicU the juror would have been liable to had the summons been regular. XIII. Special Jurors will be taken from the lists of Grand Ju- rors in the following manner:— Beginning with the gentie- man whose name shall stand next on the list to the last ot the Grand Jury, the sheriff will summon 18 persons to at- tend the Court on the day appointed for trial; and when- ever another Special Jury shall be ordered, the sheriff will, in like manner, summon eighteen more of the gentlemen on the Grand Jury list ; taking care to begin with, m this instance, the name of the person who shall stand next on the list to the last of the gentlemen on the former Jspecial Jury ; and repeating ihe same operation upon every other application for a Special Jury until he shall have gone through the whole list thereof. The names ot the 18 per- sons so summoned to attend as Special Jurors, shall be put into a box. and the first 12 that shall be drawn from thence shall form the jury for the trial of the cause, unless a legal objection shall be made to any of them ; in which case the place of the party so objected to shall be supplied by ano- ther name to be drawn from the box. And if, in conse- quence of challenge, or of neglect to attend on the part ot the jurors summoned, 12 fit and proper persons cannot be found, the Court will, at the prayer of either party, direct the sheriff to summon, instanter, a further number of per- sons from the list, sufficient to supply the deficiency, XIV. Each of the 12 Special Jurors will be allowed one guinea; which will be paid to him at the time the verdict is deli- vered, by the party at whose instance such jury was oraew. sed upon every ed. 5QG GENERAL RULES AND ORDERS h '•; .1 ■| . XV. All persons possessing real property, to any amount, or occupying any house, or tenement, of the annual value of £4, wilhijB seven miles of the Court- house, and the sons of all such persons, during their residence with their fathers, will be liable to serve as Petty Jurors, with the following exceptions : — All persons un(]er 21 and above 60 years of age. Magistrates. Officers belonging to, and persons practising in, the Courts. Clergymen, the Ministers of the Gospel in all religious congregations, and Schoolmasters. Doctors of Medicine and Practising Surgeons. Persons whose names are enrolled on the lists of Grand and Special Jurors., Officers of His Majesty's Customs, and other persons holding employment under His Majesty. XVI. The sheriff, or bis deputy, will keep lists, arranged in alphabetical order, f all persons liable, under the precedins* regulations, to serve as Petty Jurors, and residing within seven miles of any place in which a Circuit Court may be holden. XVII. Two days before the opening of the Court at each place in the Circuit where it shall be liable to sit, the sheriff shall cause eighteen of the persons whose names appear first on the jury list (commencing with the letter A), to be sum- moned to attend the Court on the first day of its sitting; and shall, in like manner, on each succeeding day, summon eighteen more, according to the or^er in which they stand on the list, to attend the Court on the second day from the date of the summons. XVJII. When the sheriff shall have gone through the whole list of Jurors he will, of course, repeat the same operation ; beginning from the top, and taking care that there shall aU vaya be 18 persons summoned^ in the mode alreftdv nre- scribed, to attend the Court every day during its sitting. 01? THE CIRCUIT COURTS £97 XIX. The summons shall be printed, or written, and delivered personally to the juror, or to some member of his lamily, at his house or usual place of residence. XX. The persons summoned shall be liable to attend the Court the whole day for which they are summoned. XXI. Before the trial of the first cause, the names of the l8 jurors, written upon separate slips of paper. shall be put Into a box bv the clerk of the Court, and the first twelve names drawn by him f«om thence shall, ifthere be no ground of challenge to any of them, form a jury for the trial of all causes whkh may be heard on that day ; the J"ryj3e»nf. however, in each case sworn to well and truly try the issue joined between the parties, and a true verdict to give, ac- cording to the evidence, XXII. If any of the 12 persons, whose names shall first be drawn from the box, shall be set aside on account of challenge, their places shall be supplied by .ome of the remaining six, ZohI names shall afterwards, in like manner, be drawn from the box ; and if by these means t^e number of twelve competent jurors cannot be completed from the persons summoned, the Court will direct the sheritt o make up the jury from the persona then present in i^ourl. XXllI. To render the attendance as easy as possible to the ju- rors the Court will, as soon as a jury of twelve persons shall have been formed, pe.mit the rest of the persons who were summoned to return to their homes; and if. upon a subsequent trial, any members of the original jury should be ob?ected to on the ground of mterest towards either of the contending parties, their places shall be supplied by a tales de circumstanlibus. XXIV. On the other hand, the Court will mwt rigidly enforce the attendance of juror?, by imposing a nuc oi *«=. i^^.^.y ^ fffmo^v. 598 GENERAL RuLeS AND OnDERJ instance where the absence of the jnror shall notbeexcusea whpn rr"' *? ^^ ^.^""^'^^^ '° ^'^^ ^^"••t' »'ef«''*^ the hour When the party was bound to attend, under the hand of ?mmpdJ^f^r'l''^!^?^'li-^' practitioner. The fine to be cTnnM / '^7^^ ''y .^'Stress; and where sufficient goods X>m if '•*'•""/ *r?.''fy ^.'^^ *''^^''^«'''' ^he party against TnZ J T^"^ '''"'l ^^^ imprisoned, under an order of i^ourt, for the space of 48 hours. XXV. «J/!I'? "o""«"endartce of the juror shall have been occa^ fn?^ffi ^ ^17 ^''^'"'''^ "^S'ect on the part of thesummon- fin^e and'oen^h- '"''' t'^\ ^^ ^"^^^^^^ to'precisely the same t A K P^"«^/'P as the former would have been liable to had he been duly summoned. XXVI. ilAn^^T '''!''".'' ^"'"^^^«»' the jury will be allowed in IvonJ I ""^^^'^ ^^^""y case where the party shall not be XXVII. In those places where a competent numberof persons can. not be procured to form petty juries, the circuit j,id.re win fiC and appomt some certain day, or days, for the disprtch of crimmal busmess ; and two days before the dav so fiv.,1 and appomfed by him, the sheriff, or his prober officer shall summon, by a written notice, fIve .nai^s?ra'es res ' i dmg w.tJnn SEVEN miles of the place wh'erTlhe Co' "t shall be holden, to attend the Courl on the day appoin^d to act as assessors. ^ «Fpoiniea, XXVJII. to the Court m such manner as it shall require. XXIK, Thfe names of the maffistrates in a**«n,io««^ «i,-.ii k. pui mtu a box, written on separate»lip7"of pa^cT, ^d"th; \ w J^: mssss OP THE CIRCUIT COURTS, ^99 lotlieexcuseci efore the hour ' the hand of he fine to be ifficient goods party against : an order of ?e been occa* ' the summon' sely the same >een liable to I allowed in • shall not be g fees to any persons can- udge will fix e dispatch of Jay so fixed roper oflicer, strates, resi- re the Court y appointed, upon every having been shall be ex- be certified er, and the first three names drawn from thence shall form the asses-, sors for the trial of tiie first cause, unless there shall be legal ground of objection to any of them ; in which case the place of the person so objected to shall be supplied by another name to be drawn from the box. XXX. The magistrates, whose names were not drawn from the box at the trial of the first cause, shall form part of the as- sessors for the trial of the second cause ; and one or two more, as the case may require, shall be added to them, taken by lot, from those magistrates who were engaged oa the former trial, XXXK If, in consequence of challenges, or the absence of ma«» gistrates, three disinterested persons cannot be procured in the place where the Court is then holden, the prisoner shall be conveyed to the next place in the circuit where the Court will sit, and shall be tried there. XXXll. For his attendance at Court, each magistrate who has been summoned will be entitled to lOs. (id.; and he will also receive the same sum for each cause in which he may act as an assessor. xxxiii. ^ Under a persuasion that no professional assistance can. be obtained by the suitors in many parts of the island where the Circuit Courts will be holden, the Judges have endeavoured to construct the process and practice of these Courts in such a manner that every person may be equal to the management of his own cause. The practitioners in the Supreme Court will, however, at all times, be at liberty to practice in the Circuit Courts ; and the parties who employ them may, upon application, have their bills taxed by the Court, XXXIV. The registrar of deeds will be authorized to charge the following fees:-T— T7^j. #1»A ■natn*i/\tt on A .y fa on\ont finA r^MVIotPW Cif it fIf»PQ or will under £100, 10s. coo GENERAL RULES AND ORDERS And when the value exceeds £100 a Pf <^«»*^S;^^«^|!!J rate of one percent, for the tirst £100, and 58. in the £100 for all above that amount. . , j u„ii „m «n If the value of the property to be 7g»«^;;:«^^„f f^^^ pearwith sufficient certainty upon the face o{ the instru. ment, it must be ascertained by the oath of the party ten- dering it for registration. For the registry of every grant of land, under I £o 6 100 acres ^ nioo! And for grants exceeding 100 acres " a" " For every certiBcate from the record oiO For an inspection of the record XXXV. In Felonies the reasonable expenses of prosecutors and Jnesses as settled by the Court, and the allowance to j^u?res Tasses^or^. wilt be paid by >h^sheri,ff and charged a the account of the district in J^^ich the trial may be had but in Misdemeanours those charges will be borne Dy lue mosecator, unless the court shall deem it ^^X/J^es fievehim f^m the payment of costs : »«J^ ^.^/^ ^^^^^^^^^ shall be paid by the sheriff, under the 6at of the prcsiain^ jiidge. XXXVI. Fuel candles, stationary, and all other necessaries for the court will be Provided by the sheriff, from time to t?me under the order of any of the Judges thereof, and charged by him in his public account. XXXVI 1. Until the Judges shall have acquired, by experience a more pXt knowledge than they now po^^ess of the ac- Sal sLe and condition of the other parts of the island, S^y wUl fee? themselves prevented fr^n -i^^^^^^^^ fheTa^rerbe rnfolcedr'At the same time the Judges aie RS t centagri at the 58. in the £100 ed shall not ap- le of the instru- of the party ten- bV THfi CIRCUIT COURTS, 601 jnder ] £0 6 10 50 1 f prosecutors and be allowance to Tiff, and charged trial may be had ; I be borne by the necesary to re- which case they it of the presiding er necessaries for triff, from time to dges thereof, and by experience, a possess of the ac* arts of the island, om attempting to igs of the circuit equire the aid of es, or regulations, appear on paper, ss they are pro- esociety in which me the Judges are deeply impressed with a sense of the importance of method and order m all judicial proceedings; and it will, accord- ingly, be their constant and most earnest endeavour to engraft upon these rules every regulation tending to the advancement of method and order which the condition of the country will, in their opinion, admit of. XXXVIII. All the regulations prescribed by the general rules and orders of the Supreme Court of Newfoundland, re- specting the qualifications of jurors, the mode of summon- ing thereof, and the fines and penalties to which they will become liable upon their neglect to attend, will be observed and enforced in the Circuit Court of the Central District when the sittings of that Court are holden in the town of Saint John ; but, if its sittings shall at any time be holden ' in other parts of the district, the same course of proceed- ings upon those points which has been enjoined in regard i to the other Circuit Courts, as belter adapted to the circum- ;* stances and condition of the smaller towns and settlements ^ of this island, will be strictly followed in it. I XXXIX. I The original writ which has been framed in the Supreme —Jourt of Newfoundland for co-partners, joint-tenants, or tenants in common, to compel a partition of the property :^n which they may be interested inany of those characters, ftvill also be used in the Circuit Courts: and all the rules ivhich have been formed, touching the manner of proceed- ing in a sail for partition, in the former Court, will like- wi'se be adhered to in these Courts ; with this only differ- ence — that where the whole value of the property, of which the division is desired by some of the part-owners thereof, ihall not exceed the sum of one hundred pounds sterling, and the fact of the joint-possession of the demandant and tenant shall be clearly established, either by a plea of confession, or by a finding in favour of the demandant, upon the plea that they do not hold together, the Court will direct a partition of the property to be immediately made by the sheriff, or his proper officer, in such manner as may seem to be most suitable to the parjiicular circum- stances of the case, and best calculated to afford real jus^ 40 ^t^ t ' .J^U . ' 1^ < * l;.; .^g»»* « '? » '0 "P i IMP -- t t( «02 OEN£RAL ftVLES AMP 0RDXI18. tice to all the parties concerned. And a partition made in this particular manner, unless appealed from, shall be final, and effectually binding upon all sorts of persons. XL. In the case above described the parties will, probably, he generally relieved from the chaise of six guineas for a jury, to divide the property ; but the price of the original lyrit, and all the costs of the proceedings in a suit for par- tition, will be precisely the same in the Circuit Courts as in the Supreme Court of !NewfoundIand. R. A. TUCKER. J. W. MOLLOY. A W. DJSS BARRES. N. B. The /irst and thirty-sixth rules of the Circuit Courts have not been confirmed by His Majesty. ■««it^'!>* -mt ' ^mtev» fi(longiit0 to m Txipmnt antf €ixtnii (!roiitt0* DAVID BUCHAN Esq. (Potl-captain in Ihe Royal Naty). High Sheriff. CHAULBS DICKSON ARCHIBALD, Esq. (Barnsler of NwvaSeotia), Chief Clerk of ike Supreme Court. JOHN BROOM. Sen. Esq. Clerk of the Arraignt. JAMES BLAIKIE. E^q. Acting Chief Clerk of the Supreme Court. PETER WESTON CARTER, Esq. Acting Clerk of the Central CtrcuU Court. •- JOHN STARK, Eaq. Clerk of the Nmihem Circuit Court. BENJAMIN G. GARRETT. Esq. Clerk of the Southern Circuit Court AARON H06SETT, E«q. Deputy Sheriff in the Central District. NICHOLAS STABB, Esq. Deputy Slwriffin the Northern Dutrict. EWEN STABB« Esq. Deputy Sheriff in the Soutbetn District. mx^om tntiiltti to praettf^e in m £tipt;cme atm atixtnit ^outto. •TAMES SIMMS, Esq. Ilis 3Iajeslys AttorneyGeHeral, CHAKLES D. ARCllliJALD. Lsq. GEORGE LILLY, Esq. i .'; 604 PERSONS ENTITLED TO PBACTISE IN THE COURTi, WILLIAM B. ROW, Esq. JOtiN BIlOOM.Jun. Eb(]. WILLIAM IIAYVVAIID. Eaq. CHARLKS SIMMS, Emi. llUneilT R. WAKEUAM, E*q. JIENRY CORBORN iVAITS, Jisq. ALFRED MAYNE. E»q. IIRYAN ROBINSON. Eiq. RICHAUD ANDERSON. Eiq. JAMES U. CLOWE, Esq. ST. JOHN'S, NEWFOUNDLAND: PRINTCD BT HBNRT WINTON, AT TUB OENESAL PRINTINC'OFf (CK, WATER-8TRSBT. IE COURTS. TINC'OrftCK,