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Donovan 78 Best als Knodell 149 ^iurbridge ats, Pui'dy 150 Black V. Gesner 157 Burrett v. Overseers of Poor of Yar- mouth 161 Bissett als. Wier 178 Borden v. Churchill 187 Beamish v. City of Halifax 227 Burnaby r. Fait 231 Boyd ats. Murison 247 Bryson v. Graham 271 Barss ats. Collins 281 Bigelow V. Norton 283 Beebe ats. Teed 426 C. Casey v. Archibald 4 Carman ats. McPhee 8 Connors ats. MoAgy 8 Cuff ats. Smith 12 Creelman ats. Grant 37 Cochran v. Duncan 80 Cunningham ats. Keith 149 Chipman ats. The Queen 292-160 Churchill ats. Borden 187 Clarke ats. Skinner 189 Creighton v. Moore '. . 227 City of Halifax ats. Beamish 227 Chesnutt ats. Morse 284-287 Pace Chipman ats. Ratchford 235 Creamer v. Hogan 287 Cameron v. McDonald 240 Cock ats. Almon 265 Collins V. Barss 281 CrosskUl V. Allison 288 Cameron v. McLean 829 Campbell v. Henderson 336 Chisholm v. McDonald 367 County of Halifax ats. Fenerty 412 Chipman v. Sha>r 428 D. Ducaen v. Dunne 77-13 Dunne ats. Ducaen 77-13 Dunne ats. Tobin 76 Donovan ats. Boudrot 78 Duncan ats. Cochran 80 Dimock ats. White 234 Doyle V. Tiramins 288 Delaney v. Hall 401 Dillon ats. MuUaUy 420 E. Elliott V. Smith 338-8 Etna Insurance Co. ats. Moody. 178-230 F. ^ Fairbanks v. Union Mar. Ins. Co ... . 67 Eraser ats. Woods 184 Fait ats. Barnaby 281 Eraser v. Morrow 282 Foote ats. Simpson 240 Eraser v. Kirk 290 Faust ats. Grotto 291 Eraser ats. HUl 294 Full ats. Salter 856 Fenerty v. County of Halifax 412 Foster v. Fowler 425 Fowler ats. Foster 425 ! CASES REPORTED. G. Pago Oarritt atn. Neville 4 Gough V. Morton 10 Gilbert ats. Seely 14 Grant v. Creelman 37 Graham v. Graham 77 Gould V. Gould 87 Grant ati, Murdock 100 Governors of King's College v. Mur- dock 106 Gray v. Whitman 157 Gesner ats. Black 157 Gates ats. Woodbury 255 Graham ats. Bryson 271 Gardner v. Thorne 275 Grotto V. Farifih , . . . 291 Gillis ats. Smith 361 Graham v. McMarsters 417 " H. Humphrey v. Jones 7 Hartman, in re 62 Henderson ats. Scott 115 Hogan ats. Creamer 237 Harris v. McKenzie 242 Hannan ats. Moore 291 HiU V. Fraser 294 Healey ats. The Queen ' 331 Henderson ats. Campbell 835 Henry v. McNeil 857 Hart ats. Walsh 400 Hall ats. Delaney 401 Hadley v. Sheman 416 Hubeii: ats. Mayette 420 I. Inland Navigation Go. ats. Stanford. 185 J. Jones ats. Humphrey 7 Jeans ats. Northup 232 K. Kenny, in re 14 Keith V. Cunningham 149 Knodel v. Best 149 Kennedy ats. The Queen 203 Kirk '0. Fraser 290 Kinuear ats. Ratchford 407 L. Long ats. McKenrie 268 Levatte v. Salter 387 Lynch v. King 418 M. McPhee v. Carman 8 McA^ V. Connors 8 Morton ats. Gough 10 Marshall ats. Taylor 10 Mulhall V. Barss 46 McKay v. McKay 75 McDonald v. Marmaud 79 Marmaud v. McDonald 79 I'uge Murdock v. Grant 100 McDonald ats. Governors of King's College 106 McCartney ats. Nash 167 Moody V. Etna Insurance Co. . . 230-173 Moore ats. Creighton 227 Murpiiy V. Trenholm 228 Morrow ats. Fraser 282 Morse v. Ciiesnutt 234-287 McDonald ats. Cameron 240 McKenzie ats. Harris 242 Muncey ats- Starr 244 Murison v. Boyd 247 Mitchell V. Turnbull 250 Murison v. Murison 252 McKenzie v. Long 268 Moore v. Hannan 291. McKenzie v. McKay 321 McKay v. McKenzie 321 McLean ats. Cameron 329 McNeil ats. Henry 337 McDonald ats. Chisholm 867 McKeen v. McDougall 403 MoDougall ats. McKeen 403 McLean v. Watson 406 McMarsters v. Graham 417 Mayette v. Hubert 420 MulUiUy V. Dillon 420 McDonald ats. Ward 422 McArthur v. McQilvray 427 McGilvray ats. McArthur 427 Marstera v. Phinney 429 N. Nelson, in re 1 Neville v. Garritt 4 Nash V. McCartney 167 Northup V. Jeans 232 Norton ats. Bigelow 283 0. Oxley ats. Twining 18 Overseers of Poor ats. Burrett 161 P. .:'v/.. Pratt ats. Bnrtlett 11 Pryor ats. Swan 13 Purdy V. Burbridge 150 Page ats. Attorney General 262 Peillon, ex parte 405 Payzant ats. Songster 408 Purdy ats. Seely 414 Phinney v. Marsters 429 Q. Queen v, Tliompson 9 Queen v. Chipman 292-160 Queen v. Kennedy 203 Queen v. Healey 331 R. Ralston, in re 3-195 Ratchford v. Chipman 235 Ratchford v. Kinnear 407 Ring ats. Lynch 418 CASES REPORTED. 8. P«go Siiiitli ats. Elliott 8-888 Smith V. Cuff. «-. . 12 Swan V. Pryor 18 Seely v. Gilbert 14 Scott V. Henderson 116 Stauturd v. Inland Navigation Co. . . 185 Skinner v. Clurke 189 Simpson v. Foote 240 Starr v. Murray 244 Suinford v. Santbrd 266 Salter r. Full 856 Smith V. Gillies 861 Salter ats. Lcvatte 887 Songster r. Payzant 408 Sutherland r. Whidden 410 Seely r. Purdy 414 Sliernan ats. Hadley 416 Smith V. Stewart 417 Stewart ats. Smith 417 Shaw ats. Chipman 428 T. Thompson ats. The Queen 9 Taylor v. Marshall 10 Twining v. Oxley ; 18 I'HgC Tobin r. Dunne \ 76 Trenholm ats. Murphy 228 TurnbuU ais. Mitchell 2g0 Thayer v. Vance 289 Thorne ats. Gardner 278 Timmins ats. Poyle 288 Teed v. Beebe 426 U. Uniacke v. Brundigo 57 Union Marine Insurance Company mts. Fairbanks 6T V. Vance ats. Thayer 269 W. Whitman ats. Gray 157 Wier V. Bissett 178 Wooils V. Fraser 184 White V Dimook 284 Woodbury v. Gates 255 Walsh V. Hart 400 Watson ats. McLean 406 Whidden ats. Sutherland 410 Ward V. McDonald 422 «Ji.;*'. tv s -,■•, m V CASES ARGUED AND DETERMINED IN THE SUPREME COURT OP THE PROVINCE OF NOVA SCOTIA. s EASTER TERM, 1866. IN RE-ESTATE OF MARY NELSON. When a woman entitled to Real Estate, joins with her husband in executing a warrant of Attorney on which a Judgment was entered and recorded in order to bind such Real Estate, the Court of Probate is not justified in treating the judg- ment as a reality. This was an appeal from the Court of Probate. Abner Dobbett died in 1807, leaving Real Estate which he devised to his widow, the present intestate, charged with a legacy of £150, payable to his eon, John L. Dobbett, on his attaining the age of 21. She subsequently married Nelson. Some time after her son came of age, she and her husband executed a warrant of Attorney for the amount due on the legacy, with in- terest. Judgment in this warrant was entered up and recorded. On the facts connected with this judgment coming before the Judge of Probate, he decided that such judgment was void, and did not affect the Estate of deceas- ed. This decree was appealed from and Twining in support of appeal. The Court of Probate has no right to look into the circumstances under which a judgment of this Court has been obtained. Such a judgment must be treated as valid and good until it has been set aside in this Court. 2 Burr. 1005. McCuUy, contra. There is a distinction between void and voidable judgments, 3 Rep. 64. 2 Hawk. PI. of Cr. Cap. 50. If a judgment be entirely void, the Judge of Probate may treat it as a nullity. This judg- ment is void. The Law assumes a wife to be so entirely under (he control of her husband — that she can do no act herself. She cannot convey away, or bind her lands here, except by the means provided by our Legislature. A judgment against her husband and herself will not affect her dower. 1 Inst. 112, Fitzh. Feme Covert. 18. 2 Kent Com. 134-6. w IN RE-ESTATE OP MAKY NELSON. She cannot give warrant of Attoruoy to confess judgment. Toinl. Law Dictionary. Bar. and Ferae. Danv. Abr.708. ]0 Co. 43. 1 Roll. Abr. 395. 2 Inst. 515 Co. Litt. 3 a. Coiny. Dig. ]Jar. and Feme. H. 4 T. R. 301, 4. 8 Taunt, 20L Comy. Dig. Bar. and Feme. R. ; I. Leon. 192. ; 2 Black. Com. 293., ib. 351, n. 7. The Court of Probate had power to adjudicate in the case. Stat. l&o3, Cap. 12 ^ 12. Johmton, Q. C. The Court of Probate could not get at this case. — {McCully, the parties admitted the fact before the Judge of Probate.) No admission will contravene the record of a Superior Court. It cannot be touched by any Court. A woman can bo sued jointly with her husband, Archb. Pract. 1855, p. 338-9 ; and she may be taken on execution. — {McCully — Those are adverse proceedings.) Surely that can make no dif- ference. (Buss, J. If she could not confess judgment, she would in all cases be compelled to go on and make costs.) And if administratrix, would have to, plead a false plea, and have judgment against hyrself personally. — The cases in which judgment against married women are set aside, are those in which she is sued by herself — 1 Bos. and Pul. 128 If any action can be sustained against husband and wife, then the Court is obliged to enquire into the particular circumstances under which the judgment was obtained, and that the Court of Probate cannot do. Bliss, J. If a husband can enter an appearance for hinisielf and hia wife, can he not also give a confession ? A judgment then being entered up can only bo set aside in the Court in which it is given. If an action were brought on the judgment, no plea could bo pleaded, but nul tiel record. The circumstances which make it void cannot be pleaded. The admission of the facts by the parties ';efore the Judge, has no greater effect than if those facts had been proved before him. There can be no doubt that husband and wife may be sued together. The judgment, therefore, obtained against them, is not a nullity in the face of it — and cannot be treated by the Judge of Probate as such. But on the contrary, it is to be treated as valid, until set aside by this Court, who alone have the power to enquire into the circum- stances under which it was given. . "i /. .)■■.■ DoDD, J. The general principle is, that judgments are valid until set aside in the Court in which they are given. They stand effectual until they are set aside. Desbarres, J. We must assume the judgment to have been properly ob- tained ; it can only be set aside on grounds to be shown to this Court. Decree reversed. Oosts to be paid out of Estate. ^ „ . • TN RE-ESTATE OF RALSTON. 8 IN RE-ESTATE OF RALSTON. In an appeal from a decree of the Court of Probate, the Supreme Court will allow an amendment, adding a new ground of appeal to those already talcen ; but will in auoh case give the opposite aide time to consider whether they will go on to the argu- ment. This was an appeal fcom an order of the Judge of Probate, for the coun ty of Cumberland. The administrators after having filed an inventory, under oath, were cited by one of the creditors to file a further inventory. — Upon this citation, they appeared before the Judge of Probate, and afler testimony adduced, the Judge on the 24th August, 1854, made an order, re- quiring administrators to file within one month under oath, a further inven- tory, including 2500 logs lying at the time of testator's death on the Wallace River, and within the Icnowledge of the administrators, and that the admin- istrators should pay the costs. From th'^ decree, administrators appealed, and one of the grounds of appeal was the ambiguity of the decree, as to the costs. Decree not specifying . hether costs should be paid out of E)state, or out of administrators' own goods. McCully, for appellant, was interrupted by Smitht for appellee, who objected that the extract from the minute book was not the order of the Court of Probate ; there being a decree filed by the Judge on the same day that the objections were filed, in which this ambiguity DO longer exists. The decree being that administrators should pay the costs out of their own pockets. McCully contended that the minute book contained the judgment, the statute intending that such should be the case. (Bliss, J. The minutes of the order are not the order.) There was nothing else against which we could appeal, for there was no other order. Johnston, Q. C. From what time, does the thirty days given by the Stat, in which appeal is to be perfected, run ? The order of the Court, removing ambiguity, was only filed on the day that the grounds of the appeal were filed. We would, therefore, be deprived of one of the grounds of the ap- peal, and as the decree gives costs against the administrators, personally, would be deprived of the power of moving on that point. (Bliss, J. That would be an injustice. I think you ought to be allowed to amend.) Johnst'm, Q. C. I was going to ask for leave to amend, adding a new ground of appeal. The Judge of Probate has required the administrators to put in a further inventory, under oath, which he clearly had no power to do. Ritchie. The Court will not allow a new point to be raised now. (Bliss, J. If the objection were merely a formal one, the Court wouid not. But I think, on a point like that, such an amendment ought to be allowed.) Tue Praoti( ^ ' .t does not give power to the Court to amend. (Bliss, J. If there be notlj.;.ig in the act prohibiting it, this Court has the power to n CASEY V. ARCHIBALD. allow an amendment.) We have only been called upon to answer certain points specified in the appeal. (Buss, J. Wc are called upon to decide on a decree. Now, if that decree be vicious, are we required to send it back to be enforced as good and valid ?) Smith. The Court will not allow a party to take an objection, in mov- ing for a new trial, which he has not taken at the trial. (Bliss, J. They will not, if it could have been met at the trial. But if the objection be, that the action could not be brought at all, they will allow him to take it after- wards.) The Court gave leave to amend, requiring the grounds intended to be argued, to be specified in the rule, and gave the opposite side time to con- sider whether they would go on with the argument. NEVILLE V. GARRETT. To entitle a party in a cause to his fees aa a witness, he must make an affidavit that he came to the Court expressly to give evidence in the cause and for no other purpose. The plaintiff in this case, after having given notice of trial, neglected to try his cause, and the defendant thereupon became entitled to the costs of the day. There were affidavits by the defendant himself and by his attorney, stating that he was a necessary and material witness in the cause, and that his detention in Halifax was occasioned by this action. W. A. Johnston for defendant moved to have the same fees allowed to the defendant as would have been allowed him if he had been a witness. 16 Eng. L. and E. R. 225—10 ib. 465. Buss, J. The affidavits do not disclose sufficient to entitle him to those fees. The party must state that he came up expressly for the purpose of giving evidence in the cause, and for that purpose only. DoDu, J. I think the rule just laid down a good and wholesome one. Desbakiu^s, J. concurred. Rule refused. CASEY V. ARCHIBALD. Where a person hiring from another a horse and waggon with seats for two persons, places three therein, and the horse on the journey sickens and dies, he will be liable because of the misus3r. Th£ defendant hired from the plaintiff a horse and single waggon for a journey to Musquodoboit. The defendant and two other persons went in CASEY r. ARCHIBALD. * this waggon, and while on their journey the horse became lame and grew worse till he came to Musquodoboit. He was unable to come back, and, though every care was taken of him, shortly after died. This action was for the value of the horse. There was a verdict for plaintiff for £12 10s. and r«Ze nisi under the Statute for a new trial. •;• A. James in support of the rule. The verdict is not supported by the evidence W. A. Johnston, contra. There was a misuser in taking three persons. The defendant hired a horse and a waggon made to hold only two persons, without informing the plaintiff that he intended to put more than that number in it. The Court will not disturb a verdict for less than £20. [Bliss, J. That rule has often been mentioned in this Court, but never acted upon.] This is not the case of a perverse verdict. [Bliss, J. If a jury take a view of the case which the evidence will not warrant, the Court will grant a new trial.] Ritchie and James replied in the evidence. Bliss, J. Thought there was sufficient evidence to prove the misuser in putting three persons into a waggon designed to hold only two. DoDD, J. AND Desbarbes, J. coDCurrod. And rule nisi was discharged. ■ ■•■•V ,-M" . „ . . .,'1.-. . . CASES ARGUED AND DETERMINED IN THE SUPREME COURT OP THE PROYINCE OF NOYA SCOTIA MICHAELMAS TERM. 1856. HUMPHREY V. JONES. When issiie.s for a Jury are to be framed in equitable cases, the proper course is for either or both parties to take out a summons or rule ni%i, setting out the issues they desire to have tried before a Jury, and upon argument before him the Judge will de- termine whether such issues are proper. Tuis was an equitable case, and Johnston, Q. C. asked the Court to have matters referred to a master to determine issues to be tried by the Jury. Smith. The Act 18 Vict. cap. 23 prescribes the course to be pursued. The 53 section of that Act directs the Court or a Judge on the application of either party, and after 8 days notice to the opposite side to determine the issues to be tried by the Judge. Bliss, J. I do not think the issues ought to be settled before a master. If either party were displeased with the master's decision, there would be an application to a Judge. It would only lead to needless expense and delay. The proper course would be for the party desiring to have the issue settled, to take a rule nisi, requiring the opposite side to show cause within 8 days, why the issues stated in the rule should not be the issues for the Jury to de- termine upon. Halliburton, C. J. thought it as well that cases Bhould come before the Judge at once, as after the interventioh of » master. Rule refused. JB. KLLIOTT 1-. SMITH. if McPHEE V. CARMAN. The (lofenilant in an equitable suit will not be compelled to answer under oath on the ordinary writ. This was un equitable case, and C. Twining. The Act 18 Vict, Cap. 23 ^ .5, i*equires a plea or answer from the defendant. A plea has been put in, but plaintiff is desirous for the answer of the defendant under oath. Ritchie. That Act assimilates proceedings in Chancery to those pursued in Common Law Courts. Courts of Common Law do not recognize in cases like the present, an answer under oath. Bltss, J. 1 do not think the answer ought to be under oath. The plain- tiff can have no difficulty in obtaining the answer of defendant under oath, but it cannot be obtained in this way. Application refused. MacAGY v. CONNORS. — An .Absconding Debtor. V/hen the absconding debtor has deposited money belonging to others in the Savings Bank in his own name, the Cashier cannot be held to be agent ci the party so ab- sconding. In this case the Cashier of the Savings Bank was summoned as agent. It appeared that a sum of money had been deposited in Savings Bank in the name of the absconding debtor. Attorney Gen. Two questions arise out of this case : first, whether Cash- ier of Savings Bank can be summoned as agent. Secondly, whether he be really the agent of the absconding debtor, the money having been deposited by Connors in his own name, but being really the property of others and depos- ited for them. Halliburton, C. J. If the money in the hands of the Cashier be really the money of Connors, I think he can be summoned. If it be only deposited in the name of Connors, and really belong to other parties, this Court can have no jurisdiction. ELLIOTT V. SMITH. The Court will allow a rule nisi for a new trial to be amended by the addition of a new ground. Johnston, Q. C. There was a rule nisi for a new trial granted in this cause. But one of the grounds on which we hope to attain a new trial, is not stated in the rule nisi. (Wilkins, J. No other grounds were stated at the time rule was granted. The Court allowed the rule nisi to be amended. QUEEN tf. THOMPSON. J ze in cases QUEEN V. THOMPSON. rriictiee as to entering up judgment on a recognizance. In this case Thompson had been accused of theft, and had obtained bail. The Grand Jury had found a bill against him ; but before the trial of the indictment he had absconded. A rule nisi had been obtained to enter up' judgment on the recognizance, and to have execution. Attorney Gen. It is desirable that a practice should be established, making recognizancos available securities. The course pursued in this case was to obtain affidavit of the Clerk of the Crown of the fact of a recognizance having been entered into by the defendants, of the signature of the Justices of the l*eace thereto, and its return into the Supreme Court, and the non-appear- ance of the party to plead to the indictment. On this affidavit, the present rule nisi was obtained, a copy of which, together with a copy of the affidavit was served on each of the defendants. By the Revised Statutes, Chap. 169, Sec. 17, the Justice on taking bail is required to give notice in writing to the party accused, of the time and place of trial. This has not been done. — The question therefore is, whether that clause in the act be merely directory, or whether it is to be considered as a condition. Smith. The practice pursued in England, in respect to these recogniz- Tinces, is entirely inapplicable here. There are many checks and guards there which are not here. The proper mode to enforce the payment of the sum in the recognizance, was by a scire facias, to which bail might come in and plead. The bail ought to have the opportunity of having their case tried by a Jury as well in a debt to the Crown, as in a debt to a private individual. The notice in writing required by the Statute, was not delivered to the party. The Legislature intended that the accused and his bail should have notice of the time and place when and where he was required to appear. Attorney Gen. The bail ought not to object that the Crown has taken a less expensive mode of recovering its debt. All the advantages which the defendants could have had, on ui^ scire facias, they may have by the course now pursued. (Bliss, J. Could you not have issued an execution against the bail at once ?) Perhaps that might have been done ; but that would not have bound the lands as a recorded judgment. As to the notice, the Statute is merely directory. The omission to give that notice could not prejudice the bail, as they must have known the time and place, when and where the presence of the accused was required. C. A. V. Hallipurton, C. J. As there appears to be no settled practice relative to these escheats here, I can see no objection to the proceedings taken oti, the part of the Crown. Rule made absolut*. 2 10 TAYLOR u. MARSHAL].. GOUGH V. MORTON. ,m |^ Appeals under the lliver Fisheries Act muHt be ina he pleads it. The party himsdf is not in a situa- tion to plead it — he ha,s no opportunity of doing so. The Court therefore ought to take care that ha is not thereby prejudiced. WiLKiNS, J. I do not see how the Court can give a party the benefit of a defence which he himself could only take by plea. ,. tu .* Leave to enter up judgment for note refused. DUCAEN e. DUNNE. 13 SWAN V. PRYOR, et. al. , Though notice of the abandonment of a rule be given to the opposite aide, yet he must move to have it discharged in order to obtain his costs. This was an appeal from the Mayor's Court, and a rule nisi had been ob- tained for a Jury. , McCuUy moved to have the rule discharged. Weeks. The learned counsel's motion is quite unnecessary, as he has notice that the rule is abandoned. By thk Codut. The rule must be discharged ; it is the only mode in which he will be able to obtain his costs. SWAN V. PRYOR, et al. Tlie Court will not order a Jury, simply because the affidavit states that there will be conflicting testimony. Weeks applied to have this cause sent to a Jury, ou the ground that the affidavit showed that there would be conflicting testimony. McCully, contra. The Court requires some substantial reason before they will send a summary cause to be tried by a Jury. Halliburton, C. J- This is an application left altogether -to the discre- tion of the Court, and I do not think it would be a wise exercise of that dis- crction to send this cause in the first instance, to be tried by a Jury. Bliss, J. If the Judge before whom the cause is tried shall think it ad- visable, he may order a Jury. DoDD, J. If the fact of there being conflicting testimony were sufficient to give the parties a Jury, few cases would be tried in a summary way, now that t;}ie parties in a suit are examined. Rule refused. \ , DUCAEN V. DUNNE. The affidavit for a continuance on the ground of the absence of a material witness, ought to show when he is expected to return. Wallace moved for rule nisi for a continuance, on an affidavit setting forth the absence of a seaman, who would be a material witness for the defendant. (Halliburton, C. J. Why was this application not made on the first day of the term ?) The defendant was then absent and could not make the neees* sary ajHdavit. Rule nisi granted. On a subsequent day Wallace moved to have this rule n ado absolute. 14 IN KE THOMAS KENNY. Sawcrs, contra. The affidavit does not state that the witness is ever ex- pected to return. By thc Court. The affidavit is not sufficient. The rule must be dis- charged. Shortly after Wallace moved upon another affidavit, setting forth that the witness was expected to return to this Province. Sawers. The affidavit must not only state that he is expected to return, but that he will return within a reasonable time. By tub Court. The affidavit is not yet sufficient. Rule refused. I • SEELY V. GILBERT. • In equitable suite, the Court will compel the plaintiff to speed his cause. Tiiia was an cquitublo suit, in which a rule nisi had been granted, requir- ing the plaintiff to reply to the defendant's plea within one month, and to speed his cause to a trial within five monthfi. Johnston, Q C, moved that the rule be made absolute, and cited act of 1855, Cap. 23, ^ 64. *' McCuliy. This Court will not compel a plaintiff in an equitable suit to speed his cause to a trial within a less period than that allowed in an ordinary common law suit, and there no cause is dismissed for want of prosecution until afler the lapse of a year without any step being taken. Halliburton, C. J. The rule ought to be made absolute. r. ri . Rule made absolute. t f th't^v Vi, ■•'■ ' ' ' .■■... ,. >j^. ;.. w IN RE THOMAS KENNY. When a Statute directs that each party shall choose an appraiser, and the two ap. praisers shall select a third, and the three so appointed shall determine the matter m controversy, it is a compliance with the Statute if after a disagreement as to the matter in controversy, the two shall select a third. The appointment of a magistrate as an arbitrator will not disqualify him for admin- istering the oath of office to the other two arbitrators. A This case was argued in Easter Term last, when it appeared that under an act of this Province to provide for the construction of railways, the land of Mr Kenny had been taken by the Railway Commissioners. The ap- praisement was required by the terms of the act, to be made by an appraiser, to be chosen by the parties interested in the land, another to be selected by the Sessions, and a third to be appointed by the two appraisers. All of these were to be sworn to the faithftil discharge of their duties. The two first- named arbitrators attempted without appointing a third to make the ap* IN RE THOMAS KENNV. 15 cited act of I for admin- praisemont ; but disagreeing in opinion as to the amount of damage sustain* ed, they finally appointed a third. Then the appraisement in question was made as follo\?s : "July 7, 1864. Andrew Shiels, county appraiser for railway damages, and Geo. B. Creighton, appraiser for Thomas Kenny, having disagreed in opinion, mutually agreed to call in William M. Allan, Esq. as their umpire, and the said William M. Allan, and the said G. B. Creighton, agree to award the said Thomas Kenny £600 in full for damage — the aforesaid Andrew Shiels does not agree to the said award. •' A. Shikw, '• G. K. (;RK1GHT0N, •* W. AJ. Allan." Mr. Creighton, one of the appraisers, had been sworn before Mr. Shiels, the other appraiser. There was a rule nin' to ameroe the county for the sum mentioned in the appraisement. Attorney Gen. now showed cause against the rule. Mr. Shiels acting as appraiser could not administer the oath of office to the other appraisers. The Statute did not specify the parties before whom the oath should be taken, anu though Mr. Shiels being a magistrate would have full power to adminis- ter the oath if he had not been an appraiser, yet having been appointed to that office, it was not competent for him to do so. (By the Court. The Revised Statutes enact that Justices of the Peace may administer an oath, with regard to the taking of which no particular directions are given. Tho appointment of Mr. Shiels as arbitrator did not divest him of his power as a magistrate.) It was evidently the intention of the Legislature, that from the first mo- ment there should be three independent minds conferring together. By tho appointment and action of only two appraisers, that wholesome guard which the Legislature intended to erect was destroyed. The subsequent appoint- ment of the third did not restore the matter to its original position. The judgment of the two had been already formed. Before either of the two ap- praisers had gone to inspect the land — before they had moved a step they ought to have appointed the third appraiser. Wats, on Awards 73-86 ; 3 Brod. and Bing. 214 ; 1 Sim. and Stu. 624 ; 28 Eng. R. 105. Johnston, Q. C. in support of the tide. The authorities cited by the other side, only show that arbitrators should be present when the final judg« ment was arrived at. In this case the three appraisers went on the ground together, and deliberated and signed the appraisement in the presence of each other. If two appraisers had no power under the Statute to act, then the commencement of the appraisement was at that period when the third having been appointed the law gave them authority to make an appraisement. The opinion formed by the two appraisers did not disqualify them for lA IN UK THOMAS KKNNY. acting in conjunction with a third. Were men of that iron and infloxiblo character, that an opinion once formed remained indelible, then there might bo something in the argument of the Attorney Gen. But the law requires the urbitrators to be present at the time they come to their final conclusion, ami to sign the award in presence of each other, because of the pliability of the human mind, and the posHibility that something may be urged, evon at the last moment to change their award. Surely a previous knowledge of the matter cannot be urged as a disfjualification. (Bliss, J. It is sometimes in the case of jurors.) C. A. V. ( i Biiiss, J. now delivered the opinion of the Court. In this case an ap- plioation was made to the Court under the 13 Section of the Provincial Act 18 Vict. Cap 5, to amerce ttie county of Halifax for certain railway damages awarded to Mr. Kenny, under the act of IG Vict., Cap. 2, previous to the repeal of the latter act. Yiy the 19 Section of this act, it is provided that when no agreement shall be niado by the proprietor of land taken for rail- way purposes, one appraiser shall be appointed by the Sessions, a second by persons interested iti the land ; and on thoir default after three days notice by the Clerk of the Peace, such two shall choose a third appraiser who shall bo sworn, and they or any two of them shall make a valuation as to damages. In this case the Sessions, and the party interested, each nominated their appraiser, who went upon the land, inspected it, and differed in their estimate of the damages. They then choose a third appraiser, when the whole three met together on the premises, and surveyed them, and not agreeing, the third and one of the others made and signed thoir valuation. It was contended by the Attorney Gen. on behalf of the Sessions, that these proceedings by the appraisers had not been in compliance with the Statute. That this contemplated the full unbiassed judgment of the whole three ap- praisers, who ought to have considered the whole matter together in the first iustauce ; and not having pursued this course, the award could not be sus- tained. There was certainly an irregularity in the proceedings by these appraisers. The two seemed to have supposed that they possessed full power to adjudi- cate on the subject, if they should agree in their judgment, and that they were only to call in a third in case of their disagreement. Whereas the Statute has provided for the appointment of three appraisers, to whose united consideration the subject was to be submitted— any two of them being em- powered to decide upon it. I cannot, however, come to the conclusion that this irregularity of itself, so far vitiates the whole proceedings, that the award finally made must be set aside. It is granted that the two were wrong in first meeting without the third, and forming their opinions upon the question liN RK THOMAS KENNY. IT in his absenco. But thoy differed in their estimate ; and ffben they did all finally meet to consider the matter, there could have been no undue bias pro* ducod on the mind of the third, by the opinions of the others ; for the influ* once to which ho might have been thus exposed was equally the same from either. Their opinions, too, seemed to have been formed {lolely upon a view of the promiijcs ; and in this, cither of them was as capable of being convinced by the third, alter being on the i)ropcrty, us the third could be by him. I cannot, therefore, see that the irregularity which took place, could in any degree improperly affect or influence the award itself That award was the result of a full and deliberate and final consideration of all the three apprais- ers together on the land. Thoy then, beyond a doubt, acted in strict confor- mity with the Statute, and the award of the two was authorized by it. If the previously irregular conduct of the two could of itself thus vitiate the subsequent regular proceedingH, it must have the same effect, and would make the award null and void, although the whole three appraisers had concurred in it. The appointment of the three appraisers by the Statute is analogous to a referenco under a submission to three arbitrators. And the case of Goodman v. Sayers (2 Jac. and Walk. 249) may be referred to as having great bearing on this point. That was a submission to three arbitrators or any two of them. Two of the three prepared and submitted a case to the counsel for his opinion, without the knowledge as it would appear of the third arbitrator ; and finally made their award in his absenco without notice to him of the meeting. The Master of the Rolls in giving judgment said: ♦' It is certainly true that if two out of three arbitrators meet alone, exclud- ing the third, and not giving him notice, and if they receive evidence and hear discussions without him, their proceeding is irregular. When the matter is referred to three, the arguments and judgments of all three should be had recourse to in every stage. The cases referred to were instances of fraudulent contrivance to exclude the third, — but at all events, it is irregular not to give him notice. Here, however, all the evidence was heard, and all the substance of the business was settled in his presence. The rest, the sign- ing of the award, was a mere form. This they thought they were at liberty to do by themselves. They did not, however, act secretly, but determined in the manner they had previously informed him they would." And he held that the award could not be set aside under these circumstances. If it were necessary for me to express an opinion upon this judgment, I cannot say that I should altogether concur in it. Indeed, it is opposed to tho latter case of Wade v. Douiling, 28 Law and Equity R. 105, as far as i 'aucs i/ot he sign- ing of the award in the absence of the third arbitrator. But £ cite it to show the opinion of the Master of the Rolls on the point now immediately under our consideration. And in this the present case falls far short of that. Here there was nothing done by the two that was not afterwards done '■ 3 ni i. 'I ^^1 18 TWINING V. OXLEY. ail the three. And not only was the substance of the business settled in his presence, but every thing was finally transacted together in the fullest and fairest inrainer. They all met, discussed, deliberated and decided on the question of damages upon the land itself, and all together signed the award, one of them expressing his dissent from the rest, I think, therefore, on the whole, though not altogether satisfied with their proceedings, that the valua- tion of damages made in this case must be sustained, and that the present rule must be made absolute. TWINING V. OXLEY. W hen a warehouse keeper retains for a consiclei'able space of time a delivery order in hifl possession, without giviiij; notice to the party senJiu}! it that the property is not the property of the party by whom the order is made, lie will be personally responsible for the goods contained in such delivery order. Wilkins, J. dissenting. This was an action of replevin for salt stored away in the defendant's warehouse. The facts of the case are briefly as follows : The defendant and one William Richardson purchased at the same time two cargoes of salt, one of which containing 1500 hogsheads, belonged to defendant, and was stored in a warehouse occupied by Richardson, the other containing 1500 hogsheads belonged to Richardso?i and was stored in the warehouse of defendant. At the time of the purchase they mutually agreed that in selling his own, each should attempt to sell that belonging to the other also. — Richardson in pursuance of this understanding sold both the cargoes at months to George Laivson, who gave notes for the amount. The defendant Richardson divided the notes between them ; but Oxley, not being content with the security o'.' Lawson, received from the latter, as a collateral security, a delivery oider on Richardson for the 1500 hogsheads stored with him. — At the time of the sale it was agreed between Richardson and Lawson that the latter should be liable for the storage of the salt. Lawson, however, never received any delivery order from Richardson for the salt. About six weeks after, Lawson sold t'ue 15G0 hogsheads stored in the defendant's warehouse, to the plaintiff, and gave the plaintiff a delivery order therefor. Two or three days after this sale Lawson left the Province, deeply in debt. The delivery order was within a week after the sale presented to a clerk in defendant's store, who said it was all right, and the order was retained by the defendant without any further notice being taken of it for nearly a month. In consequence of the prolonged absence of Lawson, rumours relative to his insolvency spread abroad. But previous and subsequent to these suspicions of insolvency on the part of Lawsoii, the plaintiff had held several conversations with Richardson relative to the salt, in which Richardson stated the price for which he had sold to Lawson, but never .rit-1 .S ^.-^^ifl-.-. V TWINING r. OXLEY. 19 !ss settled in his the fullest and decided on the ;ned the award, herefore, on the that the valua- hat the present delivery oriler in ho property is not iuiialiy responsible sntiug. the defendant's The defendant two cargoes of defendant, and ther containing e warehouse of i that in selling } other also. — 16 cargoes at G The defendant being content ateral security, id with him. — Lawson that moil, however, t. About six le defendant's order therefor. eeply in debt. to a clerk in retained by the arly a month. jrs relative to ent to these itiiF had held It, in which ow, but never hinted that there would be any difficulty about the delivery of it to the plaintiff, nor when told that plaintiff was about to insure mentioned that he had any claim upon it. When suspicion became certainty, and it was no longer doubted that Lawson had left the Province without any intention of returning, Richardson gave defendant notice not to deliver to Twining. — When the plaintiff sent for the salt, the defendant refused to deliver it. Upon this refusal the present action was founded. Bliss, J. who tried the cause stated to the Jury that Richardson, by his conversations with Twining, had precluded himself from alleging either that Lawson had not paid for the salt, or that it was not delivered to him. But irrespective of this the learned Judge thought the holding of the delivery order by the defendant, without any notice or intimation to the plaintiff of any objection to it, was an acceptance of it ; and after this, though there was no transfer of the salt in his books, which was not essential, the defendant held it for the plaintiff; and whatever might be the case between Richardson the original vendor, and his vendee, the defendant was stopped from setting up this defence. There was a verdict for the plaintiff, and the learned Judge having refused a rule nisi, the defendant took out a rule under the Statute. Stewart and Smith in support of rule. Rephivin does not lie, for the plaintiff had no possession. There could, therefore, be no taking, and if no taking there can be no detention. There was no delivery to Lawson, and his vendee can be in no better position than himself. The defendant was only bound to deliver Richardson's goods to Richard- son's order. (3 B. and C. 423. 16 M, and W. 119, 8 East. 881. 8 T. R. 466.) Defendant in not noticing the delivery order of Lawson is not to be deemed to have accepted it, as would have been the case if it had been that of Richardson. He was not bound either to accept or return Laiason's order, for he had none of Lawson's goods in his possession. Until the possession was out of Richirdson, he could exercise his right of stoppage in transitu on the insolvency of the purchaser. The delivery was not complete while any thing remained to be done. The bill of parcels shows 1560 hhds. of salt to have been sold. There was no measurement on the sale to Lawson, and if the quantity actually stored was less, Richardson would have been obliged to make it up to that quantity. Nor did Lawson by any other means take possession of this salt. 2 Camp. 240. 2 M. and S. 397. 6 East. 614. 5 B. & C. 863. 5 Dan. Abr. 573. 1 Bell's Com. 404. 5 B. and Aid. 855. 3 ib. 680. Salk. 113. 7 East. 588. Now the pro- perty may be in one while the possession is in another. Change of property alone will not divest the vender of his right to stop in transitu. There must be also a change of possession. The bill of parcels is evidence of a fliile, but not of a delivery, and until that delivery has taken place the pos- 20 TWINING i;. OXLEY. Bession remains in Richardson. Nor will the fact of the goorls having been sold on credit, and of notes having been given which have passed out of the possession of the vendor, deprive him of his right of stoppage. Nor is it ne- cessary that at the time the right is exercised any act shall have been done showing conclusively his insolvency : a rumour of such insolvency is sufficient. (4 B. and C. 941—951, 5 B. and Ad. 313 4. Tyr. 295. 13 Jurist 265. 4 B. and C. 951. Story on Sales, ^ 318, 325, 327, 329, 333. Smith Merc. Law, 645. 7 M. and G. 360. 2 C. and P. 86. 2 H. Blacks 504. 1 B. and C. 180. 2 ib. 540. 12 Ad. and El. 632. 5 Johns 11. 335. 6 C. and P. 532. 6 B. and C. 364, 534. 4 Ad. and El. 46G. 1 Camp. 427. 8 B. and C. 612. 4 Eng. Law Mag. 369. 3 T. R. 119, 783, 464. 3 East. 93. 2 M. and W. 375. 7 Mass. 453-4 Brown P. C. 47. 9 Mass. 64. 7 T. K. 440. 3 B. and C. 540.) Johnston, Q. C. and Ritchie, contra. There was such an unlawful deten- tion in this case as was contemplated by Section 154 of the Practice Act. — The plaintiff had the right to the possession of the property. The sale from Richardson to Lawson was complete. There was a written memorial con- taining all the particulai's required by the Statute of Fraud, and there was a judgment by notes in accordance with the terms of that sale. The defendant from his connection with Richardson knew of the sale to Lawson. By accepting the notes for his own portions of the salt, and also by taking the collateral security of the salt, he recognized the validity of the sale. If defeiilant had been a stranger to the whole transaction, there might be something in his requiring a notice from Richardson of the change of ownership before he could be held liable on a delivery order from Lawson. But the defendant being aware of the sale to Lawson has accepted the delivery order by not giving notice of his refusal to do so. The conversation between Richardson and defendant by which the la'ter was confirmed in his belief, that the sale from the former to Lawson was complete, would have estopped the latter from setting up any claim to stop in transitji. (6 Ad. and El. 474. 9 B. and C. 586. Sugd. on Vend. 515.) The answer of the plaintiffs clerk, when the delivery order was presented, and subsequent retention of that order for a long time without any notice of its being the defendant's intenti')!i to refuse to accept it, renders him liable to the plaintiff. If he did not intend to accept he ought to have sent instant notice thereof to the defendant. Richardson and defendant's clerk, by their words and the defendant by his silence led the plaintiff" to believe that the salt was Lawson's, and that the defendant held it for him. Lawson, by being made liable for the storage of salt obtained the possession. The storehouse keeper was no longer Richardson's but Lawson's ; even if the goods remained in the storehouse of the vendor, an agreement between him and the vendee, by which the latter is to pay rent for them will so change the TWINING V. OXLEV. 21 possession as to deprive the former of the right of stoppage in transitu. (I Camp. 452, 513. 4 Esp. 82. 1 Camp. 425. 2 Cr. and M. 536. Add. on Contr. 64. 14 East. 308. 7 Taunt. 278. 2 Esp. 59S. 3 B. and C. 427. 2 Kent. 502. 1 East. 194. 1 Stark Rep. 115. Long on Sales 149. 4 B. and Ad. 568. 4 Ad. and El. 890. Add. on Contr. 61. 12 East. 621. 2 Kent. 496. 2 Car. and V. 86. 13 Pick. 1 83. 20 Pick. 283. 10 Ad. and El. 90. C. A. V. )f the sale to I Halliburton, C. J. This case has been argued by the defendant's counsel as if it were a question between Twining and Richardson, and the defend- ant was an innocent stakeholder between them, perfectly indifferent to which of the two he shall be decreed to pay. The long list of cases which the defendant's counsel has submitted for our consideration go to establish Richardson's right to stop this salt i7i transitu, and, if he has himself done nothing to affect that right, he will undoubtedly retain it, and have a claim upon Oxley for it, under his notice to retain it for him. As is evident from the case o{ Lackhigton and al. assignees of Pauls, Bankrupts, v. Atherton. But may not Oxley, as the warehouse keeper, having the charge of this salt originally for Richardson, have so conducted himself as to preclude him from denying that he holds it for the plaintiff. Without considering at present Richardson's conduct in the transaction, and viewing him simply as the former owner of the salt, who had sold it to Jmwsou, and given him a bill of parcels of it, without a delivery order — how does the case stand ? Lawson, as the then owner of the salt, clothed with authority as such, which he derived from the bill of sale, sells it on the 25th of January, to the plaintiff, and gives him a delivery order on Oxley as the warehouse keeper in whose custody it was, to deliver it to the plaintiff. This order was received by the plaintiff on the 28th of January, and in the beginning of February was sent by the plaintiff to Oxley's usual place of business. Oxley was not in at the time, but the person who carried the order found two clerks there, to one of whom he delivered it, and received for answer that it was all right; and this answer the messenger delivered to the plaintiff. The witness swears most positively to this, and it is only met by the clerk's saying he docs not recollect it. Now admitting that the clerk had no authority to give this answer, and that it would be bard to bind the defendant by it, does it not follow that it was his duty to correct the mistake without delay. It may be said that the defendant did not know what answer his clerk had given ; it may be said in answer that h^ should have inquired whether any and what answer, had been given to this order which had been presented in his absence. 22 TWINING V. OXLKY. and which he admits he saw upon his desk where his clerk had laid it. ; and should he not then have sent an answer himself, if he could not have accepted the order, and not have allowed the plaintiff to remain under a misconception for such a length of time, that the order was accepted. But instead of an immediate answer Oxley allows the plaintiff to remain under the supposition that he had accepted the order, ^.nd transferred the salt to him agreeable thereto until the 10th of March following. It has been argued by the defendant's counsel that it was the duty of the plaintiff to send to the defendant to know whether the defendant had accepted the order for the delivery of the salt; and he likened it to a bill of exchange sent for acceptance by the party on whom it was drawn. There is no similarity between the two cases ; in the latter the party has a right to the possession of the bill, whether it is accepted or not. If it is accepted, it is a negotiable instrument, which he may transfer in the market, or get it discounted ; if it is not accepted he has a right to seek his remedy against the drawer or prior endorsers. In the course of business it must be returned to him ; but that is not the case with an order upon a warehouse keeper to deliver goods in his custody : if he keeps the order, even without giving any answer to it, the party who sent it has a right to conclude that he has made the transfier of the property, of what he was never the owner, but the qualified possessor only — and that he retains the order to show his authority lor so doing. Now without laying any stress upon the evidence of Richard Lawson, who, as before observed, swore positively that the answer of the clerk, on the delivery of the order, was that it was all right, and that he delivered that answer to the defendant, I answer that the retention of that order by the defendant for such a length of time, without saying anything about it, precludes him from setting up such a defence as this. In the language of Bayley J. in Gillet vs. Hill, cited 2nd Cr. and Mee. 536, at the argument — " the defendants have no right afterwards to say that they have not twenty sacks so appropriated," when they had accepted the order generally — and they had only accepted it by filing it — and in this case the defendant has accepted the order by retaining it. It being the usual course for the warehouse keeper to retain the order to justify him in making the transfer, and this case of Gillett \s. Hill disposes of the question as to whether it was an order that the warehouse keepers was bound to accept, for there can be no doubt that he was not bound to accept the order in this case — but he was held liable for not refusing to accept it. But when we proceed to other features in the case, it appears that Richardson, so far from acting with the openness and candour, which fair dealing between man and man would require, in all his interviews with the plaintiff upon the subject, leads him to believe that Lawson was fully TWINING ». OXLEY. 23 authorised to transfer the possession of the salt to the plaintiff, and it ill bocoiiies him, after this, to interpose his right to shelter defendant from the plaintiff's action. But the charge of the Judge does not turn entirely upon the point — although he thought it conclusive of the case — for he goes on to turn the attention of the Jury to the conduct of the defendant. His words are : " But independent of this I think the holding of the delivery order by the defendant without any notice or intimation to the plaintiiF of any objection to it, was an acceptance of it, and that after this, though there was no transfer of the salt in his books, which was not essential., and the Court so decided in Harinan vs. Anderson. 2 Campbell, 245 ; and note particularly the 2d application, in which it was decided that delivery of the order was sufficient. The defendant held it for the plaintiff, and whatever might be the case between Richardson, the original vendor, and his vendee, the defendant is estopped from setting up this defence." In this position I entirely concur, so much so that had the verdict been for the defendant, I should not have hesitated to set it aside. It is said that the Judge should have left it more open to the Jury. What was there to leave open ? The defendant himself underwent a long examination, and does not attempt to deny that he kept the delivery order from the beginning of February until the 10th of March, without giving any intimation to the plaintiff that he had not made the transfer it required. — He says indeed that he kept expecting that plaintiff would have called to ascertain the correctness of it. The plaintiff had received an answer that it was all right, when ho sent the order. But if no such answer had been given, when he sent the order to the defendant's usual place of business, it was the defendant's duty if he would not accept it to return it with his reasons for not accepting it — instead of which we find him, the warehouse keeper, who was bound to give information respecting this salt to a person situated as the plaintiff was, advising Richardson " to keep dark" upon the subject in his communications with the plaintiff. But we are told that all this took place after Lawson had gone away, that therefore the defendant's silence and Richardson^s concealment of the truth, did not place the plaintiff in a worse situation than he was, and that where the plaintiff is placed in no worse situation than he was before, the defendant is not liable. To this I answer that the plaintiff was placed in a very different situation by the defendant's not returning th6 order to him, and leading him to suppose that he had accepted it. [f his order was accepted he had no claim whatever upon Lawson ; the business was closed, and he must bo contented to look to the rise or fall of the salt in the market. But if his order had been returned to him, Laivson had gone but two or three days ; he was supposed to have taken funds with him. He might have followed and overtaken him. He iiad no right to do so, under the supposi- 24 TWINING V. OXLEY. tion that his delivery order was accepted, and therefore the defendant's conduct deprived him of that right. And in ray opinion precludes the defendant from setting up this defence. But it has been objected that this question was left open to the Jury in Gtllett vs. Hill, '2 Cronip & Mee, 536, before cited, where Lord Lyndhurst left it to therii to decide whether there had been an acseptance by the defendant of the order for the delivery of the twenty p-xcks, and the Jury found for the plaintiflF; and it is contended that that course should have been pursued by the Judge in this case — and therefore the verdict should be set aside, not on the ground that it is wrong, but because that course was not pursued. It must be recollected that on the presentation of the order in Gillett vs. Hill by the carman at the defendant's counting house, the defendant's foreman said that they had not more than five sacks to spare, and he might have that quantity. The carman then went away, leaving the order with (he defendant's foreman, and it was filed in the usual manner, on the same day the carman brought an order from the plaintiff (not by tho vendor who signed the original order for the 20 sacks) to deliver 5 sacks ex. 20 — which was accordingly delivered. Application was made on the following day for the remainder of the flour contained in the order, when the defendant's foreman said that the plaintiff should have it as soon as they could get any. Shortly after this another application was made, to which the answer was that the defendant had not any flour of the vendor's to deliver. Now this answer was by no means inconsistent with the answer already given, and it might well be left to the Jury to decide whether under all the circumstances, they deemed it an acceptance of the order. The Jury did so decide, and it appears to me that they mu3t have so decided upon the principle of the order itself not having been returned, when the order was at first only accepted for part — and the ultimate refusal to comply with it was consistent with the answer first given ; and it makes this case a very strong one against the defendant. If the Judge had been more precise in his directions, and had told them what passed did amount to an acceptance of the order, I doubt if the verdict would have been set aside, and the expense of a new trial incurred on that ground alone. Vavghan, B. in giving his opinion upon the case, says : " Having received that order it was binding on them ; if they were not in a condition to comply ith it, they should have communicated that fact when the order was deli I .1 ; and if they had only five sacks they should have limited their acceptant ' it to that amount, by endorsing it on the order." And this was said in a case where the defendants had told the carman who brought the order, on the delivery of it, that they had not more than five sacks. This case, then, which was decided upwards of twenty years ago, before such learned Judges as Lord Lyndhursty and Bayley and Vaughan, must be r.VINING V. OXLEY 25 considered as settling the law upon the subject, and fully to justify a Judge in stating to the Jury that the retention of that order by tho defendant without making any objection to it, or informing him of any difficulty respecting it, was an acceptance of it. And are we to send such a case as this to another Jury when we find the defendant not only neglecting to give such notice, but joining in a plan to withhold information from the plaintiff on the subject, and advising Richardson to keep dark in his communications with the plaintiff. What has induced either Richardson or the defendant to pursue the path they have followed, I am at a loss to determine. Their path was a plain one : on the first notice of the order the defendant should hiive informed tho plain- tiff that he could not accept it without authority from Richardson, for whom he held the goods, and not for Lawsoii, who had given the plaintiff the order ; and Richardson's right could not have been afi'ected, if he had communicated to the plaintiff that he still claimed the salt to be retained for him, as he had signed no delivery order to Lawson, and had not been paid for it; instead of which he informed the plaintiff' that he had sold the salt to Lawson, and had been paid for it. They appear to have combined to deceive the plaintiff and to keep him dark on the subject. How far this may affect Richardson's right to look to the plaintiff it is unnecessary in this case to give an opinion ; but I am quite clear that Oxley, by withholding all information upon the order given in the beginning of February, until the 10th of March, has precluded himself from setting up this defence, and that the Judge's charge to the Jury and their verdict upon it are both correct, and cannot bo disturbed. Desbarres, J. I am of the same opinion. This case was argued at very great length, and many authorities were cited in support of the rule, which do not touch the point upon which it appears to me the case entirely rests. It is not necessary for us to decide whether the defendant is liable to an action at the suit of Richardsoii, for the goods deposi- ted by him in the defendant's warehouse ; the question is whether defendant by any act of his has made himself liable to the plaintiff in the present action. It appears that Richardson beingthe owner of a cargo of salt, deposited it in the defendant's warehouse, and the defendant being the owner of another cargo, which had been placed In the warehouse of the defendant, it was agreed between them that either should sell the salt of the other with his own, whenever a sale could be effected. Richardsoii, in pursuance of this agreement, sold his own as well as the defendant's salt to Latoson on the 2d November, 1855, to be paid for by his notes, at six months. This fact was communicated to the defendant, who assented to the sale, and Lawson, on being called upon in December gave his promissory notes to Richardson for the price of both cargoco of salt, who then handed over to the defendant as 20 TWlNlNi; V. OXhKV. im many of Lawson's notes as the price of the salt belonging to him amounted to. Jjiu^sdn at this time was in good credit, and doing an extensive business in Ifalif'ax; and although Richardson did not give him any delivery order for cither of the cargoes of salt, the defendant after receiving Latoson's notes and probably then regarding him as owner of the property, obtained an order froin Ijawson on Richardson, by way of collateral security, for the delivery to him of the identical salt which Richardson had previously sold Lawson as defendant's property. This order was accepted by Richardson, who, says lie, held that salt from that time under that order as the defendant's agent, and he further says that if Lawson had demanded a delivery order from him for the salt in defendant's warehouse he would have given it to him. By the terms ol' the sale Lawson was to pay the storage of the salt in the defendant's warehouse, after the expiration of a month ; he did not pay, but the defendant admits that Richardson told him Lawson was to pay it. [MIV&071 at all events treated the property as his own, and there is no doubt from the testimony that Richardson as well as the defendant recognized his right to do so. On the 25th of January, Lawson sold the salt ho had pur- chased from Richardson, and which was then in the defendant's warehouse, to the plaintifl", and at the same time gave him a bill of parcels and a delivery order for it on the defendant. This order was presented by the plaintiffs clerk on the 1st February, at the office and to a clerk of defendant, he being absent, who said " it was all right." The delivery order was left at the office of the defendant according to the usage of trade, and the plaintiff con- sidering the sale and transfer of the salt to him complete, effected an insurance upon it. There was no further communication between the plaintiff and defendant on the subject of the delivery order, until the 10th of March, when the defendant still having the order in his possession, informed the plaintiff for the first time since its presentment, that he would not comply with it, assigning as a reason that he required an order from Richardson, who had given him instructions not to deliver the salt under Lawson's order, Lawson it seems left the Province on the 30th or 31st of Jan., and has never since returned, and the plaintiff swears that within a fortnight after his de- parture Richardson came to his office, and in the course of conversation told him that Lawson had paid him lis. 3d. per hogshead for the salt, and asked the plaintiff what he would take for it. That he had several conver- sations with Richardson afterwards about the salt, who never at any time intimated to him there was any difficulty about it. The principal ground of defence, as appears from the report, was, *' that the salt was placed with the defendant as a warehouseman, by Richardson, the then owner ; that he never having been paid for the salt by Lawson, to whom he had sold it, and the latter being insolvent, had a right to withhold the delivery of it, and that the defendant retained it by hi? direction." The learned Judge TVVlNIiN(J i: OXLKY. •>7 before whom this cause was tried, told the Jury that Richardson, ;1>' his ad- missions to the plaintiff was precluded from alleging either that Laiasoii had not paid for the salt, or that it was not delivered to him, and he also told them that irrespective of this the holding of the delivery order by the defendant without any notice or intimation to the plaintiff of any objection to it, was an acceptance of it, and that after this, though there was no transfer of the salt in his books, the defendant held it for the plaintiff, and whatever might be the case between Richardson, the original vendor, and his vendee, the defendant was estopped from setting up this defence. He had as it were attorned to the plaintiff, and could not now deny that it was his property. I am of opinion that the learned Judge was fully warranted by the evidence, in thus submitting the case to the Jury, and that there is no ground for set- ting aside the verdict which the Jury under his instructions have found. That the holding by the defendant of the delivery order from Lawson to the plaintiff, from February to March, particularly after the clerk of the defen- dant had said " it was all right," was an acceptance of it, I cannot entertain a doubt. It was, it appears to me, just as much an a,ccept*'nce, as if in the language of Lord EUenborough in Harvey v. Smith, •' the defendant had written his name on the face of it." Having accepted the order, I do not think the defendant can be permitted to set up as a defence, a right of pro- perty in Richardson, for that would be inconsistent with his own previous act, nor do I think Richardson, after his admission to and repeated conversa- tions with the plaintiff, all tending to show that the sale and ta-ansfer of the salt, as between him and Lawson, was complete, can be permitted to show in this case, whatever he may do in an action between himself and the defendant, to allege the non-payment by, and the non-delivery to Lawson of this salt. If he could, there would be no security in mercantile transactions, which like all others in the common intercourse of life, must be conducted in good faith and with plain and straight-forward dealing. The case of Stonard v. Dunkin, 2 Camp. 344, bears a striking analogy to the present. There a written acknowledgement was given by the defendants, who were warehousemen to the plaintiff, that they held the malt on his ac- count. The defence set up was, that by the usage of trade remeasuring was necessary to a traqsfer of the malt, and that before remeasurement the seller becomes a bankrupt. But Lord EUenborough said, " Whatever the rule may be between buyer and seller, it is clear the defendants cannot say to the plaintiff, the malt is not yours, after acknowledging to hold it on his ac- count. By so doing they attorned to him, and I should entirely overset the security of mercantile dealings, were I now to suffer them to contest his title." So in this case, I think the defendant cannot be permitted to say to the plaintiff", the salt is not yours, after having accepted Lawson's delivery order in favor of the plaintiff, and thereby acknowledging that he held it on 11 i. 28 TWINING I. OX LEV, I his account. Ilawes v. Watson, 2 B and C. 540, and Gosling v. Birnie, 7 JJiiig. ijSl), aro to the wtuno ofl'oot. The latter was an action of trover for timber in the possession of tlie defendant as a wharfinger, and sold to the plaintiif by one lioss. The defence was, that the timber belonged to one Allum, to whom it was alleged Ross had sold it before he sold it to the i»lain- tiff. It appeared that Ross had contracted to sell the timber in question then standing to Alliun, at a certain price, to be paid on the delivery of it at the defendant's wharf, and had marked it with the letter A. The timber was sent to the defendant's wharf, and he was apprised that it had been sold to Albim, who marked the whole of it. At this time £18 19s. was due from Ross to the defendant, for the cartage of the timber, which sum Allum, upon an order from R'jss paid to the defendant's agent. Ross subsequently wrote to Allum that all the timber was at the defendant's wharf, and that unless the balance duo in respect thereof were paid the next day, he would sell the timber again, and hold Ross responsible for any loss. The money not hav- ing been paid by that time, Ross sold the timber to the plaintifiF, and gave a written order to the defendant to deliver it on receiving £18 19s. for the cartage. The defendant upon receiving the written order, and the £18 19s., said " Very well, I will hold the timber for you ;" and some time afterwards told the sawyers that the timber belonged to the plaintiff, and not to Allum, and ultimately delivered to the plaintiff a bill for wharfage, saying : " These are the only charges on your timber." A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained on the ground that the title to the timber in dispute was clearly shown to be in Allum, under a prior contract in which there had been at least a part payment, and that, however the wharfinger might be responsible upon his acknowledgement or undertak- ing to the plaintiif in an action of assumpsit, he could not by such acknow- ledgement divest Allum of his property, or give the plaintiff any right to recover in an action of trover, where property alone was in question. — Tindall, C. J. says : " It is unnecessary to determine many of the ques- tions which have been argued, or to pursue closely all the decisions which have been referred to. This is an action of trover in which I agree that the question is whether the plaintiff can show the property to be in himself, as to which in the present case the defendant is estopped by his own admis- sions ; for unless they amount to an estoppel, the word estoppel may as well be blotted out from the law. The plaintiff is sent with an order to the defen- dant's wharf, the order is received, and the defendant says it is complied with. He afterwards tells his sawyers that the timber is not the property of Allum, but of the plaintiff, and ultimately sends the plaintiff certain charges, saying that those were the only charges in respect to his timber. The only question is, whether after this the defendant can set up the title for a third person, which is the less allowable, because at the time he made the admission TWlNliNG t-. UXLEV. •20 he was fully acquainted with tlio claim of Allum. The plaijitiff haviiifj; lolied on thos-e exprossions, was eiititlod to suppose that the defeinluiit kupt the tiiiihcr for him." This case sustains the principle laid down in Stonard v. Dimkiv, and shows that whatever may bo the claim for a third person, the defendant has precluded himself liy his own act from controverting the title of the iilaintiff. Tlie holding of the order from Lawson to the plaintiff, was, as I have already observed, unquestionably an acceptance of it, and it imposed on the defendant the obligation of delivering the property to the plaintiff, irrespective of any claim which Richardson may have had to it. If the defendant did not intend to accept the order, he ought immediately to have returned it to the plaintiff, knowing as lie did that to complete the sale of such goods as it referred to, the usage was to deposit the delivery order with the warehouse- man ; yet with full knowledge of that fact, and of all the circumstances con- nected with the sale from Richardson to Lawson, he kept Lawson^s order in his possession for upwards of a month, without giving the plaintiff the slightest intimation that it was not his intention to comply wi^h it. Having done HO, I think he is precluded from saying that as Laicson did not pay for the property, and because a bankrupt, he is entitled to hold it for Richardson, who placed it in his hands. It is unnecessary for me to make any remark on the case of Gillett v. Hill, to which his Lordship the Chief Justice has adverted, further than to say that it is another authority to show that where a wharfinger or warehouseman accepts an order for the delivery of goods deposited with him, he thereby admits that he has such goods in his possession belonging to the person who draws the order, and cannot afterwards dispute the title of the person to whom he is required by the order to deliver the property. WiLKiNS, J. The facts of this case do not, in my judgment, warrant the positions which were laid down by the learned Judge who tried the cause, as to the conclusiveness of the evidence to which he referred in his instructions to the Jury. It may be, perhaps, that if aZ^ the facts untrammelled by the assumed con- clusiveness of a portion of them, had been left open, the Jury could not have arrived at any other conclusion than that which marks their verdict, though on this point I express no opinion ; yet if that verdict, instead of embodying the result of just inferences drawn from the tohole of the facts, is a mere con- sequence recorded by them of legal positions, unadvisedly propounded by the learned Judge — we cannot sustain it without inflicting a positive injury on those suitors who will, hereafter, be concluded by the governing precedent of the judgment, founded upon it, that we are about to pronounce. It is this consideration alone that has overcome the diffidence which I :]() TWININC. V. OXLKV. hjivc felt in my present position, of conflict of judgnioiit with tliat of liis Lordship und my brethren, nnd made it imperative upon me thus to declare an opinion that 1 have formed Htroiigly, but not hastily, and of tiie correct- ness of which [ entertain no doubt — save that which arises from its not being in accordance with the opinions of those for whoso discrimination and learn- ing I entertain the greatest respect. 'J'ho point of law involved in the learned Judge's direction — the doctrine of an estoppel in pais — has very recently formed the subject of two impor- tant decisions of the Courts of Queen's Hench, and Exchequer, not referred to in the argument, to which I shall hereafter advert. In the former of those — Freemajt v. Cooke (2 Exch. 054, A. D. Ib48) — Baron Parke recognizes the rule that was adopted in Pickard v. Sears, thus explaining the word ' wilfully' which occurs in it. " Uy that term," he says, " we must understand, if not that the party represents that to bo true which he knows to be false, at least that he means his representation to bo acted upon, and that is acted upon accordingly ; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it. as true, the party maViwg the repre- sentation would be equally precluded from contesting its truth ; and conduct by negligence, or omission, when there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect." " As, for instance," he adds, " a retiring partner omitting to inform his customers of the fact in the usual mode, that the continuing partners were no longer his authorized agents, is bound by all contracts made by them with third persons, on the faith of their being so authorized." Here wo have combined the two ingredients of the now established rule, viz., first, the intention that the party affected by the neglect of the duty should act, which is inferred from the negative circumstance of the usual notice not being given ; and secondly, the acting by the third party, viz., his contracting with the continuing partners, as if they still continued to );•.' the agents of the retired partner. And I am persuaded that no case can be found since the establishment of that rule, in which these two ingredients do not concur as matters of evidence, or of special finding by the Jury. The one is as essential as the other. The rule is further elucidated by the following remarks of the learned Barons, during the argument of Freeman v. Cooke, viz. : Baron Parke — " It would seem that the negligence must be in the nature of a neglect of some duty cast upon the party who is guilty of it. Alderson, B. " A person cannot be said to be culpable mi not doing a particular thing, unless it is his duty to do it." Again, Baron Parke — " I think you will find that the person who makes a statement on which another alters his position, is not estopped, unless TWlNIiN(J i: OXLEV. ai he so induces another to alter \\\ii position that the fmrner would be responsihU to him in an action for it." And, here it muy bo o'nsorvcil, that in tliu puiticiilar cuso under conHidera* lion there was no duty inipofiod by law upon Oxley to accept the order of Twining, or to give an explanation of it (although the learned Judge assumed it) is incuntrovertibly shown by the decision in Lackingtoti v. Ather- ton, 7 M. and Gr. 360, which turned upon the very point taken by the counsel for the defendiint in Twining v. Oxley, viz., that there was no duty on the part of the defendant to accept the delivery order, because the latter was the bailee of Richardson, and not of Lawson. The facta of the case in 7 M. and Gr. (and it ia with the facts and the decision thereon and not with the form of the action that I am now dealing) were these : I shall put the parties to the transaction in that case in juxta position with the parties to the transaction in this, to show the complete application and bearing of the former to and upon tbo latter. " Certain deals were owned by one Tindall (Richardson,) who deposited them in his name in the docks of the W. 1. Company (in the hands of Oxley as his bailee) — Tindall {Richardson) afterwards sold to defendant {Lawson), who contracted to sell to the bankrupts (in that case, to Twining in this.) A delivery order signed by the defendant {Lawson) was addressed to the Dock Company, {Oxley), which declared the order, saying that it could not be executed because, according to the practice of the Company, a delivery order from Tindall {Richardson) was required. (It will be seen, presently that the case did not in the slightest degree turn upon the particular grounds stated by the Dock Company for refusing, viz : the practice of the Company). And so, in this case, the defence which Oxley desired to set up, and was precluded from setting up, is, that he could not, and did not, accept Lawson's order in favor of Twining, because he required one from Richardson, whose bailee he says he was. The learned Judge who tried Lackington v. Atherton, was of opinion, as contended on the part of the defendant, that there had been no constructive delivery of the deals to the bankrupts, and that, as they were unpaid for, the defendant was entitled to stop them ; and he directed a nonsuit reserving leave to the plaintiflF to move to enter a verdict for the amount claimed. A rule nisi was granted accordingly. Tindall, C. J. says : " The question is, was there a constructive delivery. The timber was deposited by Tindall with the Dock Company, and was entered in their books in his name. The defendant and Congreve who had purchased from Tindall, sold to the bankrupts, and gave them a delivery order. If that order had been in the name of Tindall all would have been right ; there would have been a constructive delivery to the bankrupts, and the property would now have been vested in their assignees. But the delivery order was in the name of persons who were strangers to the III' I'' hill! m 32 TWINING r. OXLEY. Company — namely, the defendant and Congrcve, to whom there had been a sale by Tindnll." (And here let mo pause and remark that if I shall be told that, under the circumstances of tho case of Tioining and OxJey, neither the former nor Ijowson, could be considered as a stranger to the latter, I answer, " that is a consideration in which the Jury alone wore competent to decide, and they have not passed on it.) Ch. Justice Tiudall continues : " The question is whether that order was a document which the Company were bound to obey. The Company were neither the servants nor tho agents of the defendant and Congrcve : they were the agents of Tindci'l; and the order in question was in effect no order at all upon them." And Mr. Smith, arguendo for defendant, says : " Oxley was neither the servant, nor the agent of Laioson ; he was the agent of Richardson,'' whilst Ch. Justice Tindall, in my apprehension, furnishes an answer, and says : " the order in question was in effect no order at all upon Oxley." If it be said that there were peculiar facts in this case which distinguish it, in any view of them, from that to which I have just adverted, and that they indicated fraud, or collusion, or privity, varying the relations and duties of parties as between Richardson and Oxley, I answer, if it were so those facts were for the Jury, and not tor the Court to decide, and, in my judgment, the Jury should have been instructed to express their opinion upon them, before so strong a position as that of an estoppel was predicated upon them, in effect excluding them from consideration. Lackington v. Atherton decides that a warehouse keeper is not bound in respect of a duty arising out of usage of trade, to accept an order for delivery of goods, where that order comes, not from his own bailor, who placed those goods in his custody, but from a subsequent claimant whose agent or bailee in point of fact he was not. , That that case does not turn upon the refusal of the Dock Company to execute the order, is evident from the fact of its not being alluded to by the counsel, or by the Court, whilst that supposition is excluded by the language of the latter in giving their judgments, especially by that of Mr. J. Erskine, who says : " But the Dock Company held the goods as the agents, not of the defendant's and Congrcve, but of Tindall, and therefore the delivery order given to the bankrupts did not creat'3 the relation of principal and agent between the bankrupts and the Dock Company." Indeed, it follows, from the decision in Harman v. Anderson (2 Camp.) that, had the order been from Tindall, the refusal of the Dock Company would have been perfectly immaterial, because the mere delivery of his order without acceptance, would have created an obligation to accept, that would have operated as a constructive delivery of the goods to which it referred. — Lord Ellenborough''s language is : '• Afler the order was delivered to tho wharfinger, he was bound to hold the goods on account of the purchaser." TWINING V. OXLEY. 33 There is another point of view in which it is important to regard Lacking- ton V. Atherton. I mean in its bearings on the learned Judge's charge in Twining v. Oxley. He told the Jury " that the circumstance of defendant having retained the delivery order without objection, was an acceptance of it, and that after this defendant held the salt for the plaintiff; and that defendant was estopped from setting up the defence that he withheld the goods by Rivtardson's directions, — that he had, as it were, attorned to the plaintiff, and was precluded from denying that the salt was plaintiff's property." As the learned Judge has thus adopted the language of Lord Ellenborough in Harman v. Anderson, it is probable that he had that case in his mind when he instructed the Jury ; but that case differs essentially from this in the respect that in the former the order was one which the warehouseman was indisputably bound to obey, and of which the very presentation created an obligation upon him to accept it; whilst in the latter whether there was or was not such an obligation on the part of the defendant, was in truth the very subject matter of the defence, dependent on circumstances to be passed upon by the Jury. To this distinction, I am persuaded, the learned Judge did not advert when he directed the Jury in Twining v. Oxley, and he was, theiofore, misled by the seeming application of Harman v. Anderson. That case, however, is not, except as thus qualified, an authority, since the decision of Lackington v. Atherton, Coltman, J., in giving judgment in the last mentioned case, says expressly : " Harman v. Anderson, certainly shows that the delivery of an order to a wharfinger will put an end to the right of a verdict to stop in transitu ; but there the wharfinger was bound to obey the order, which was not the case here:: Story, in his work on Sales, ^ 340, adopts this distinction, and, referring to the case of Lackington v. Atherton, for his authority, thus :'r"nclates the rule. " Where goods are in the warehouse of a third person, until he accept the order, or at least unless the order is one which he is bound to accept, and which is delivered to him, he jt the bailee of the seller. This is what I understood the counsel for defendant in Twining v. Oxley, to contend that Oxley was, in relation to Richardson. The learned Judge told the Jury that " the defendant's retaining the delivery order without objection, was an acceptance of it," but I think it was not sufficiently considered that that entirely depended on whether it was an order which Oxley was bound to obey, and that that order depended on the question (which was exclusively one of fact for the Jury) whether Oxley was, as respects the salt, the agent of Richardson or of Lawson. The learned Judge assumed that he was the agent of the latter , Unless Oxley was un^^er a duty to accept the order in question, he was at liberty to treat \t as a Jiullity ;. and he so regarded it in point of fact. ^^4 TWINLNG V. OXLEir. And here it occurs to me to make this observation. If Oxley spoke the truth, (and whether he did, or did not, or whether in relation to what he said, he contradicted himself, or was contradicted by others, is not for the Court to decide,) he was not bound to accept, for he swears in these words: " I saw Richardson, three or four days after the order had been left, and told him of it. I asked if he had ever given any transfer of the property. He said he had not. I said, shall I deliver them on this order. He said, No, pointedly. Again, I refer to another part of Oxley's testimony, subject, ©f course, to the qualification that I have already stated, on the point of his being, at the time of the transfer from Lawson. to the plaintiff, the special bailee of Richardson, He says : " I took the salt in Jones's store for Richardson on storage. I had nothing to do with it." Supposing the Jury had passed on the whole evidence, freed from the esioppel, and had found that they believed that Oxley made these declara- tions in good faith, then it would have followed that he was the special bailee of Richardson in fact, and the legal consequences as established by Lackington Sindi Atherton, would have followed also, viz.: that the delivery erdei of Lawson, in favor of the plaintiff, was not one that he was bound to obey. But, according to the ruling of the learned Judge, he was from the con- clusiveness of his detaining the order, estopped from denying the assumed obligation of it, although he was not bound to obey it in point of law. Nay, more, if it be law that the order in question was one which by the usage of trade he was not bound to accept, then, according to the position laid down by the learned Judge, Oxley must be held, from the circumstance of his retaining an order which he was not bound to accept, to have . "tually attorned, or agreed to become the trustee of the sti'anger in whose favor that order was drawn. But the lear'iod Judge told the Jury thut Oxley was concluded by the representations made by Richardson to Twining. Let us then enquire what is the law respecting estoppels in pais. In the very recent case of Howard v. Hudson, 2 Ellis v. Blackburn, Q. B. 1., Mr. Justice Crampton thus states the rule: "I think that every case in which we are to act upon, an estoppel must be brought within the princi- ples so accurately laid down in the elaborate judgment in Freeman v. Cooke, and in the present case there is the want of the two great ingredients ; for it is not found that the defendant intended that the plaintiff should act on the faith of the representation, nor that the plaintiff did so act. Lord Campbell says : " I accede to the rule laid down in Pickhard v. Sears, and in Freeman v. Cooke. If a party wilfully make a representation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an estoppel. It is not quite properly so called, but it TWINING V. OXLEY. 35 operates as a bar to receiving evidence contrary to that representation, as between those parties. The party setting up such a bar to the reception of the truth must show both that there was a wilful intent, to make him act on the faith of the representation, and that he did so act. The plaintiif neither did any act which, if he had not believed that the defendant had the original warrant, he would not have done, nor refrained from doing any act which, if he had known that the defendant had only a copy, he would have done." Erie, J. " The Jury have found that the defendant acted as if he had the original, and led the plaintiff to believe that he had it ; so that there was a representation. But did the plamtiff alter his position /or the worse in conse- quence of the representation. The following note by the learned American lawyers, /aa»*eand Wallace, is appended to the case last referred to. " The geuerf ' niin'^iple established by the case in the text, that a declara- tion in ^ai. .... \ ork an estoppel, unless it appear affirmatively that it was intended tiiar the party for, or to whom it is made shall act on the faith ol it, and that he actually did so act, is sustained by the general current of American authorities, of which he cites in loco a very large number. Using, then, the language of lard Campbell in the latest case on this subject, 1 ask, " how does it appear that tbe plaintiff did any act which, if he had not believed that Oxley held the goods, as his trustees, he would not have done, or refrained from doing any act which, if he had known that Oxley denied, or refused so to hold them, he would have done ?" 7L'hat question applies, of course, to the assumed conclusiveness of the admissions of Richardson, in conversation with Twining. It has been appositely rom.irkad by the defendant's coun.sel, in argument, that all these were made -^fi.^r Juawson left the ProoiKce, and Twining's rights were fixed. If ;'i. 1: ''. . proved that he could have had, at the time when these representatit..»s :■'.'. i .rde, and when the order was retained, or afterwards, any practical rei, .vu'oe upon Lawson. and that he would have exercised it, if not thus mislou, there would have existed in this case the second necessary ingredient of the rule of law. If the evidence raise any doubt about it, and the attention of the Jury had been called to it, and they had found the fact, of course it would uavc been now before us. But it is entirely wanting, in this case, and, in my ap),rehension, in the existing state of the English law we cannot supply it, or imagine it, or conjf jbrre it. In vbat respect, I uf'^ I'-v >? it -Appear, as a proved fact; that Tioining's post '( ■ was altered, o." icjuuiced, by Richardson^s declarations, or by Ozley's withholding the order ? Is it, even, a fact apparent, or inferable, thof a prudent and discreet man, in Twining^ s situation, if informed and oonvi :- :'u of Richardson's paramount rights in relation to the salt — the 36 TWINING V. OXLEY. .ilf' •■ subject matter of this action — would have pursued Lawson, or attempted any recourse upon him? On the contrary, would it be very unreasonabh, if we may speculate at all, to consider that it would have been inconsistent with prudence to have pursued him, and thrown good mo7iey after lad ? Is it in proof that any one of the creditors of Lawson did, in point of fact, adopt that course, with a view to recover the money that he owed him ? Where, then, is the evidence of the second essential ingredient required by the English role of law, to work an estoppel ? What would have been Tmning's chance of success, if, adopting Baron Parkers test of the conclusiveness of admissions, he had brought an action against Richardson for his misrepresentations, and given in evidence, to show that his position had been prejudiced, the ij m« in Droof in this parti- cular case ? There is not a fact on the Jtidge's minutes to sustui mch an action. In conclusion, I cannot refrain from expressing an opinion, that, in every case, unless the fact be absolutely beyond question, where an estoppel in pais is sought to be raised, it ought to be distinctly put to the Jury to say whether the party who is to be affected conclusively by the representations, was induced to act, or to refrain from acting, to his prejudice, in consequence of them, and whether he did so act or refrain from acting, accordingly. Certain it is that in each of the thrca latest reported cases on this point, viz: Gregg v. Wells, (Ad. and Ellis 90) Freeman v. Cooke, and Howard V. Hudson, this course was pursued by the learned Judge who tried the cause. Without, then, adverting to the merits of this case, on which the Jury have not deliberated, I am of opinion that the rule nisi should be made absolute on the ground of misdirection, and I apprehend that, if the verdict be sustained, and this judgment shall hereafter be cited as a precedent to govern future cases, we shall be embarrassed by the then existing conflict between the English rule respecting conclusive admissions, as settled by the cases to which I have last referred, and a judgment of the Supreme Court of this Province, directly at variance with it. I GRANT V. OREELMAN. t7 GRANT V. OREELMAN, et. al. Where three partners enter into a contract to perform a certain work as partners, and two of them, after the work has been commenced, exclude the third from all par- ticipation in it, the partner so excluded luay sustain an action against them for such exclusion, while the work is still in progress. The measure of the damages in such case will be the profits that might rensonably be expected to result from the undertaking. This case was argued in Easter Term. The writ set out that the defendants were indebted to the plaintiff "for this, that in consideration that the plaintiff would transfer to them the ad- vantages of a tender he had made for performing certain work for the com- missioners for railroads, and allow them to take his place as contractors for the said work, the defendants agreed that they would provide the securities, and advance the monies necessary for obtaining and completing the contract, and t'jnc they and he would be jointly and equally interested in the undertak- ing, and severally perforra certain allotted duties." And after setting out performance by the plaintiff, stated that the defendants had refused to carry their said promise and agreement into effect, and had denied the plaintiff any participation in the said contract, and had refused to allow the plaintiff to ful- fil his part thereof, whereby the plaintiff had been deprived of great profits, which would have arisen to him, had the agreement between the defendants and him been carried out ; and also had bc^n put to great loss of time, and to much trouble and expense in the premises. To this there were several pleas. 1. Alleged that the defendants did not agree with the plaintiff as stated in the writ. 2. Alleged that though the plaintiff had put in a tender, it had been rejected by the commissioners on the ground that the plaintiff had not sufficient skill or resources to carry on the work ; and that the defendants at the instance of the plaintiff, and with the sanction of the commissioners, agreed to take the place of the plaintiff, who, therefore resigned his tender and contract to the defendants. That it was then agreed the profits and the losses should be equally divided among them. That the work is still in progress, and it is uncertain whether there will be any profit therefrom ; and that the plaintiff's performance of the daties imposed upon him by his agreement was prejudi- cial to the work. 3. Specified the duties each of the parties were required to perform under their agreement. That the plaintiff's interference having been found prejudi- cial, the defendants being the contractors and responsible parties, forbade him to interfere in the work, and left his right to a share of the profits to b« determined on the termination of the work. (•■ P:y :}^ (IRANT t'. OREELMAN. 4. Denies that the defendants refused to allow the plaintiff to participate in the contract, or to fulfil such parts thereof as he was competent and willing to do. !l| Bii In The facts were as follows : The plaintiff who appeared to be a man of very limited means, tendered to take !i contract on the railway for £24,201. His tender was the lowest, but when called upon to give the securities, ho was unable to obtain any. Subsefjuently the defendants agreed, upon his resigning and transferring his tender to thcni, to find securities to unite with him as co-partners, in finish- ing the contract and to share in the profits or losses thereof. A short agree- ment to that effect was drawn up by one of the defendants. Upon that agreement being signed the resignation and transfer took place. The defen- dants found securities for the completion of the contract, and the work com- mencee. In consequence of differences arising between the plaintiff and defendants, the latter forbade the former to interfere further in the work, and was told in answer to his question whether ^uey considered him as partner in the work — that he had neither part nor lot in the matter. They forbade the men to obey his orders, and stopped his credit. Evidence wa& that the contract would probably yield a profit of £2,000. There was a verdict for the plaintiff for £700, and a rule nisi to set it aside. For being 1st. Against law. 2ndly. Against evidence. 3rdly. For misdirection. 4thly. For excessive damages. 5thly. For that Jury gave ilamages in respect of the full profits on the contract to the time of trial, and to the completion thereof. Atior.\^y Gen. in support of the rule, contended, 1st. That this action did not lie at common law. 2ndly. Supposing such an action could be tnoiutained, the verdict could not be sustained, it being for a share of profits, and those profits were unascertainable till the completion of the contract — the work on which was still in progress. It was evident that the action was originally brought by the plaintiff, because he imagined the defendants intended to deny and contest the part- nership. But the admission by the pleas of the existence of such partner- ship had swept away his right of action. The sole ground on which plaintiff can attempt to support himself, is, that defendants refused to allow him to perform the duties required of him by the articles of partnership. There is no precedent for such aL action either in English or American reports. The cases in which one partner may sue another are summed up in Levy's Man. of Merc. Law, 147 ; Colly, on Partn. 147-9-157 ; Gow. on Partn. 70-77 ; 13 East 7 ; 2 Stark N. P. 1 07. An action will lie for refusing to enter into partnership. 3 Stark N. P. 139. In 2 Cr. and M. 361, the general rule twaB stated that a partner oould not maintain an action on a partnership GRANT V. CREiaMAN. transaction so long as the partnership remained unadjusted, and the pluintift* was allowed to recover because it was a separate transaction. 10 Moore, 341 ; 5 Q. B. 128. 3 Steph. Com. 533 ; 8 T. R. 145. (Bliss, J. Suppose three persons agree to charter a vessel to proceed to the West Indies — one of them contributing skill in the management of the vessel, and the other two the funds ; and the vessel being chartered, the two responsible parties refuse to allow the third to go in her as master in accordance with the original agreement, what remedy would he have ?) He would have one in the Court of Equity, but not in this Court. Levy's Man. Merc. Law, 149 ; Colly on Partn. ^ 4, p. 102 ; 11 Ves. 168 ; 1 Swanst. 481 ; 9 Sim. 606 ; 16 Ves. 46. The verdict has been given for prospective damages. The Jury have included not only tho supposed profits to the date of trial, but those profits, that might possibly be realized on the completion of the work. Suppose tho contractors are unable to finish their undertaking, or that unexpected obstacles in its progress arise ; are the defendants to be compelled to pay damages according to the profits which might be anticipated from the appearance of the work at the time of trial. Johnston, Q. C. The refusal of the defendants to acknowledge the plaintiff as a partner, was a wrong for which he could bring an action. If such be the case, the Jury are entitled to give damages for the wrong done by the defendants, though those damages might be merely nominal. The plaintiff in this case does not claim the profits, but they may be fairly given in evidence to show the amount of damage sustained by the plaintiff, in consequence of his not being recognized as a partner. It is said by the other side that this action is novel ; but it is only so in its circumstances. No speculative enquiry is necessary. The defendant denied the plaintiff's right. The action was brought for that denial, and the subsequent admission by the pleas cannr' affect the right of action. The question whether one partner can sue another on matters relative to the partnership funds, does not arise in this case. The defendants have done an unlawful act ; and it is for that unlawful act that they are now brought into Court. The plaintiff founded by his skill the partnership, and the defendants have dissolved that partnership by forcing him out. The partnership has no longer the benefit of his skill, and he has therefore a right to show what the profits would probably be if the work continues to be done as it had been done before his ejection. The uncertainty of the damages is the result of the defendants' own act. But a Jury is not precluded from estimating damages which from the nature of the case must be problematical, if those damages are the probable result of the defendants' acts. It was on that principle that the Jury lately estimated the damages in Fergtcson v. Hyde. There the Jury thought that tho injury sustained by p! intiff would probably deprive him of his accustomed means of livelihood .d gave damages to cover the probable loss he would sustain. 40 GRANT V. CK^ELMAN. The eventual profit or loss, the termination or non-termination of the contract does not affect the plaintiff. He does not ask anything out of the partnership funds. Story on Partn. ^ 224 ^ 218 ; 28 E. L. & E. Rep. 142 ; 2 Stark 101 ; 13 East 7 ; 6 M. & W. 119 ; 6 Sim. 333 ; 1 Bing. N. C, 399 ; Colly on Partn. 132. ; W. A. Johnston. Had the agreement been under seal, covenant would have lain. The Jury had sufficient data on which to calculate the damages. 20 E. L. & E. Hep. 167. 28 ib. 557. 8 Mass. 462 ; 1 Bing N. C. 399 ; 1 Colly on Partn. 132. J. W. Ritchie, replies — Is this partnership in existence or not ? If in existence the plaintiff can bring an action hereafter for his share in the pro- fits. For this action does not dissolve the partnership, and the damages are not for the profits. If the parties had refused to enter into partnership then this action could have been maintained, and plaintiff would have been entitled to recover damages. But here a partnership is constituted, and the plaintiff has become entitled to a portion of the profits. This action does not dissolve the partnership. If, therefore, any damages can be recovered they must be merely nominal, to be determined upon the completion of the contract. Story on Partn. ^321, 231, 232, 233. The Courts of common law cannot give a complete redress in cases like the present, Stor. Eq. Jur. 663, 4, 5. Will Eq. Jur. 726 ; 1 Colly 589 ; Smith Merc. Law, 66. Atty. Genl. — This is not the cage of a party being sued for not entering into partnership. The moment the partnership was formed there was a new status recognized by the law. Nothing has yet occurred to dissolve the partnership. The partners are one person in the eye of the law. The plaintiff is entitled to his share in the profits on the termination of the con- tract — but not entitled to them until then. The action has been prema- turely brought, ji ^\;'^ : .^i; < C. A. V. Bliss, J. The plaintiff in this case had obtained a verdict, and it comes before us on a rule nisi to set that verdict aside. The objections taken by the defendants' counsel are twofold. 1. That the action itself is not maintainable on the principle that one part- ner cannot sue another while the partnership still subsists. And 2. That the damages recovered are in fact partnership profits which so far is rather but a branch of the former objection. But beyond this it is urged that such profits are not and cannot be ascertained until the contract out of which they are to arise, has been completed. One of the reasons which is assigned for the principle, that one partner cannot sue another at law, but must have recourse to a Court of Equity for relief, is, that the parties cannot be examined < n oath in a Court of law. This ground can no longer prevail — for now parties may be so examined GRANT 0. CREELiMAN. 41 m prema- V. partner uity for of law. amined here. Another reason is that the complicated accounts between partners cannot be investigated and settled satisfactorily, in a Court of law ; but this too, can scarcely apply any longer with us, since our Legislature has given to us at all eveuts a statutable capacity to discharge these duties and functions, as well as all others, which formerly could have been performed only by a Court of Chancery, which they have here abolished. Taking, however, that principle as still in force, I am of opinion that it has no applicability to such a case as the present, and that an action at law was the proper, if it was not the only, means by which the plaintiif could obtain the redress which he seeks. We must look to the facts out of which the action has arisen. The plaintiff had made a tender for section No. 3. of the railway now in progress of construction, for £24,201, which tender was accepted. Some difficulty occurred respecting his sureties, when it was arranged between him and the defendants that the tender should be transferred to the latter, who were to stand in the place of the plaintiff; and that the contract under that tender should be made with them — the plaintiff being entitled to an equal inter- est with them in it. The contract was accordingly then made with the com- missioners of railways. A written agreement was then entered into between the plaintiff and the defendants, that having taken the contract No. .3, it was agreed that the profits and the losses of it should be equally divided between them — each of the three partners having some particular duties and management assigned to him j that of the plaintiff being an oversight in procuring materials for the work. The work was commenced, and some progress had been made, when after a time the defendants directed the workmen to obey no longer the orders of the plaintiff, — denied that he had any interest or concern in the business, asserting that no partnership existed between them, — and in fact excluded him from all management or interference in it. These are briefly the facts on which the plaintiff found and supports his right of action, and he complains that he had been thereby deprived of great profits which would have arisen to him from their agreement if it had been carried out, and has also been put to great loss of time and much expense. It should be added that the work under the contract was still being carried on by the defendants, when the action was brought, and also when the trial took place. This, then, is certainly not an action by one partner against the others during the continuance of the co-partnership, for a share of the profits of it — but an action by one who had formed a partnership with others, against them for excluding him from it, in breach of their agreement. And now that these facts have been proved, and a verdict has passed upon them for the plaintiff, the defendants, who have denied that the plaintiff was a partner, and 4SJ GRANT V. CllEELxMAN. il i IW i! acting upon that denial have excluded him from all participation in the business, and the prolits of it — set up this partnership as an objection to his right to sue them. The very statemoat appears to me to carry its own answer with it. Tlie principle contended for by the defendants is intelligible enough where existence of the partnership is recognized ; and the plaintiff founds his claims upon that continued relationship of the parties to each other — but here the action is brought against the defendants for having wrongfully put an end to it. It is because the defendants will not allow the partnership to con- tinue, that the plaintiff is driven to this action to attain redress for that wrong, nor are the defendants after such conduct, as it appears to nie, in a situation to assert its continuance. The breach of the agreement and the wrongful act of the defendants to the damage of the plaintiff, are the substantial causes of the action : that it relates to a partnership does not in any way affect his rights or his remedy, which are in this case just what they would be in any other, where there was a breach of contract, and damage thereby to a party. It is said he must retort to a Court of Chancery. I do not see bow he can find there the redress to which he is entitled under such circuDistunces as these. Equity can enjoin the defendants from carrying on the partnership, and stay all further proceedings where a proper case is made out; it can dissolve the partnership ; it can appoint a receiver : but these are not what the plaintiff wants. How can it reinstate him in his rights, or recompense him for the locb lie has sustained from the proceedings of which he complains ? This is the province of a Court of law alone. The case of Gale, et. al. v. Leikie, 2 Stark, N. P. C. 207, appears in principle like this. The plaintiffs, who were booksellers and publishers; had entered into an agreement with the defendant, by which the latter was to supply the manuscript of a certain literary work, to be published at the expense of the plaintiffs, the profits to be divided between the two parties. After the printing had gone on to some extent, the defendant on some frivolous pretences declined to supply any further materials. For this the plaintiffs brought their action. It was objected for the defendant, as here, that the action was not maintainable, since it was brought by one partner against another to recover partnership profits. Lord Ellenborough overruled t'lis, saying the action was not brought to recover partnership profits, but for not contributing his labours to the attainment of profits to be subsequently divided between the parties. But he added that he had known similar actions brought in several cases ; for instance, actions for not entering into partnership according to an agreement. Now what sound distinction can be drawn between a wrongful withdrawing from a co-partnership by one of the partners to the injury of the others, as that case was, and an exclusion of one, by the other partners If the defendant in the (iRANT f. UKEEUMAN. -W{ case just cited, hati ^one astcp further, and had notwithstanding his agreement, not merely refused to supply the manusciipt, but had himself published the work, and on his own iO j account, that would have but made the wrong done the other the greater, and more striking. The action would still in justice have boon maintainable. Yet that would have been in oifect precisely this case. It would have been the exclusion of the plain* tiff from the benefit of tho work which was by agreement to have been a partnership transaction ; and carrying it on by the one partner after the other had been so excluded from a participation in it. Herrifig v. Tom- line, 28 Law and Eq. llep. 142, is such a case as Lord EUenborovgh in the case he has alluded to. It Avas an action for breach of contract to take plaintiff as a partner. Now agiiii, what is the distinction between that case and the present ? The agreement there constituted a partnership, and in violation of it, one refused to admit the other. Is it not cfiually an exclusion of one by the other, whatever term may be used — the same in effect and in its conse(iuences the same ? And whether the agreement by which a partnership is formed, is violated, and the plaintiff thereby deprived of the rights and benefits to which he was entitled, under it, in the very outset, or after the business has commenced and more or less advanced, cannot I conceive make the slightest difference as to the right of action. If the plaintiff cannot sue here, neither could he in the other case. It is equally in both the case of one partner sucing another — and the profits of the partnership are as much the object of inquiry in the one case as in the other. The difliculty of ascertaining the amount of damage must always exist in such cases : but that can offer no ground of objoction to the right of action. The defendants, indeed, can with little reason allege it, when it is their own wrongful act which creates the difiiculty. Nor is it correct to say that the damages recovered are partnership ;)rofits. They are not considered as such, nor payable out of the partnership funds — but from the defts. personally. It is true that the partnership being thus wrongfully inter- rupted, the measure of damages which the plaintiff has sustained, must una- voidably be sought for in the profit which he would probably have derived from that contract, in which they were all to have equally participated. But the same estimate of damages must be followed in other cases. Suppose, for instance, these railway contractors had agreed to sublet the work to a stranger, and had afterwards broken that agreement. There it would be ne- cessary, just as here, to look to the profits of the undertaking, in order to estimate the damage sustained ; and the difficulty of ascertaining them could be no answer to the action. The damages resulting from a breach of contract are no doubt in many cases matter of much difficulty. They must be made out by such fair and rea- sonable proof as the nature of tho case will admit. And the evidence of the value of the contract in which the parties were engaged, and the profits to be ' « 44 (iUANT c. Clii':ELMAN. derived from it, which have been thought sufficient by the Jury to enable thorn to find their verdict, appears to be just that which should be laid before them. In Herring v. Tondine, 28 Law and E(i. Rep. 107, already cited. Lord Campbell says with regard to the damage : " The plaintifl' was not entitled to all the money he had laid out, but merely to the profits he would have derived. McNeil v. Reid, Moore and Scott, P. 89, is still more applicable on this point. The defendant, one of several partners, agreed with plaintiff to take him into partnership, but subsequently refused to fulfil his promise. The plaintiff had been offered the command of an East Indiaman, which he had abandoned that he might accept the defendant's offer. It was objected, among other grounds, that the abandonment of this offer did not properly constitute an item in the estimate of damages, and that the profits of the partnership was alone the tiue criterion of their amount, of which it was said there was no evidence. The Court appears to have assented to this rule. They admit that the question of damages was a difficult one, and support the admission of the evidence respecting the abandonment of the East Indiaman, on the ground of its affording proof of the value of the partnership itself as estimated by the parties. Tindall, Ch. Justice, observed : '• that the defen- dant made no attempt to show by evidence that the profits (which it was con- tended would be the true criterion of damages) were such as not to warrant so large an amount." So that it was thus decided in effect, that what is here objected to as not being the legitimate evidence of damages, was the true, and indeed the only evidence which could be properly given in such a case. I am of opinion, therefore, that the rule nisi to set aside the verdict must be discharged. i Desbabbes, J. This was an action to recover damages against the defen- dants for denying the plaintiff a participation in a contract entered into between the defendants and the railroad commissioners, for certain work which the plaintiff and the defendants by a subsequent agreement between themselves agreed to perform in partnership. My first impression at the trial, was, that the action would not lie, inasmuch as it appeared to be brought by one partner against his co-partners, to recover his share of profits unascertained, arising on a contract not completed, and yet existing, on the ground of his exclusion from it ; but on a more careful consideration of the case, and the law applicable to it, I am of opinion that the action can be sustained. That one partner cannot sue another in a Court of com- mon law for the profits of the partnership before an adjustment is made, and a balance struck, is a principle which cannot be disputed ; but it does not follow that one partner may not sue another for the non observance or breach of an express stipulation in the partnership agreement— such as is com- UKANT /•. OKKKIiMAN. 45 plained of in tho present case. It is laid down in Story on partnership, ^ 21H, " Thiit wherever there is an express stipulation in the partnership arti- cles, which is violated by any partner, an action at law, either nssurapsit or covenant, as tho case may recpiiro, will ordinarily lie for tho breach thereof." By the co-partnership agreement ontored into here, certain specific duties were assigned to each of the patiiors, viz : " tho plaintiflF was to have an ovor- sight in procuring materials for the work; Tapper was to keep an account of the money expended ; and Cree/man was to draw the money and make the necessary purchases that might bo rcciuired in Halifax." Now this action is brought against tho defendants for refusing to allow the plaintiff to fulfil his part of this agreement ; in other words for not permit- ting him to have an oversight in procuring materials for the work contracted for with the railroad commissioners ; whereby he says he has been deprived of great profits which would have arisen to him had the agreement between the defendants and himself been carried out ; and has also been put to great loss of time and to much expense in the premises. Tho object, then, was not to recover his share of the profits, es nomine, that have arisen or may arise frr e contract with the railroad commissioners, but to recover damages fo) violation of that express stipulation in the agreement between the plaintiff" and defendants, to which I have referred. For that I think an action will lie, and for that the plaintiff is entitled to recover, because there is abundant evidence to show that he was most improperly and unwarrantably excluded from the work by the defendants. The case of Gale and another v. Leikie, 2 Starkio 107, to which my brother Bliss has referred, has a strong bearing on this. There, as in this case, it was objected for the defendant that the action was not maintainable, since it was brought by one partner against another in order to recover the partnership profits. Lord Ellen- boruvgh in overruling the objection, said : " The action is not brought against the defendant to recover partnership profits, but for not contributing his labor towards the attainment of profits to be subsequently divided between the parties," If an action, then, may be brought by one partner against another, for not contributing his labour towards the attainment of profits to be subsequently divided, surely an action may be maintained against a partner who will not permit another to perform labor especially allotted to him by the co-partnership agreement for the same end. That is precisely this case. It is a wrong for which the plaintiff is entitled to seek redress in this Court, and for which it appears to me he cannot so effectually obtain, it in any other: for the relief which a Court of Equity could give him for his exclusion from the partnership, is not what he desires. The Jury, under the instructions I gave them, found a verdict for the plaintiff, for damages equal to what they conceived the probable amount of his share of the profits on the contract would be, taking I presume as a basis of calculation the prices specified in 40 MULIIALL, et. d. v. BAllSS. ■iifi; 1 the tender accepted by the railway commissioners, and for which the con- tract was enteicd into, and the priced for which it appeared the work, so far as it had been proceeded in, had actually been performed. In thus submit- ting the case to them, it was not I confess without some doubt resting on ujy own mind whether I was right in doing so ; although I may say I thought and still think it was a case which, under all the circumstances proved, demanded damages of no small amount to compensate the plaintiff for the wrong he had received at the defendants' bands. The great object of the plaintiflPs counsel throughout the trial, was, to prove what the proba- ble amount of profit on the contract would be, as a measure for the damages which the Jury were asked to give; but the defendants did not attempt to produce any testimony to show that the plaintiff's witnesses wore mistaken in their calculations, or had over-estimated the profits that were likely to accrue on the contract; on the contrary they were contented to rest their dofence on the plaintiff's own evidence : and having done so, the question now is, whether the verdict can be sustained, or whether we must set it aside because it was given for what was intended to cover the plaintitf's share of profits, resulting > , this contract. The case of McNeil v. Eeid, 2 Moore and Ficott 89, ; ;aiOve the doubt I had entertained as to the propriety of my instructions to the Jury on the subject of damages, and shows they were Wiuianted in finding as they did. I am of opinion that the rule for setting aside the ver- dict must be discharged. MULHALL, ct. ai. v. BARSS. Where defendant was directed by one Martinez to charter a vessel from Liverpool foi' Madeira and Demerara, and to load it with lumber; and defendant charters a,vci--,sol " from Liverpool to Madeira, calliiig on her way at the Western If-laiids, and if renuired at one of the Canary Islands, and from thence to Madeira, Demerara, West Indies and back to Liverpool," and makes the cargo deli\ei'ablo to one IJernes as agent of Alarti- nez, and directs the master, who was also part owner of the vessel, that on his arrival at Fayal, Bernes would instruct him where to go, and executes a bond for the payment of the freight of such voyage as surety for Martinez ; and the master and Bernes after arriving at Fayal, where part of the cargo was sold, agree to sail for Lisbon, where the residue of the ccrgo was sold, and in consequence of the delay thus occasioned Martinez repudiates the contract, held that defendant having received the proceeds of the cargo sold at Lisbon, was personally liable though the voyage had not been performed. Held also that the evMence of a part owner who had sold out his share in the vessel , only a day or two previous to his examination, wiis admissible When the verdict of the Jury is for a larger amount than is claimed by the plaintitT the Court will not allow him to enter a ji\dgraeiit for that amount but will give him leave either to remit the excess, or grant him a new trial. This case was argued in April Term last. The writ set out bond from defendant to plaintiffs in the penal sum of j£1000, subject to a condition for the avoidance thereof, on p-^.ynicnt by one Joze M. Bernes, of freight or hire of the Barque Annie, as cDvonanted to be \ aiULUALL, et. al. v. BAllSS. 47 paid by a charter party of same date. There were also covenants charri'rg defendant as indebted to plaintiff in the same sum for freight. The claim was for £1000. The writ was served out in August, 1S54. The pleas were 1. Non est factum. 2. That defendant signed the bond as surety for J. M. Bernes, for payment of certain voyages which plaintifis did not perform, and that freight therefore was not earned. 3. That plaintiffs and Bernes changed the voyage, and thereby the surety was discharged. 4. Not Indebted to plaintiflFs for ..le hire of the vessel. 5 That defendant did not hire barque from piaintilT. There was a verdict for plaintiffs for £1225 and a rule nisi to set aside verdict. 1. For improper reception of evidence. 2. For misdirection. 3. Because verdict was against law and ovideuce. 4. Because damages given were gi'eater tlian were justified by the evidence, and greater than claimed by the plaintiffs. The facts appeared to be as follows : J. F. Martinez^ a merchant of Madeira, wrote to defci;dant in June, 1854, requesting him to procure a cargo of Imuber for a vessel of about 110 tons — which he designed to send to Liverpool. In answer Barss wrote, 12th July, that he was obtaining the cargo according to directions. On 7th September Martinez writes to Barss that he had changed the doritination of the vessel, and requests Barss to charter a vessel to take a cargo to Madeira, thence to Deraerara, where the charter was to terminat at about £500 or £G00 for the voyage ; and directs him to draw on J. Scott in London, or Winter ^ Preston at Deme- rara, for the amount of the shipment. Shortly after this, Joze M. BerTtii, who appears to have been known to Barss by former transactions f,s an agent oi' Martinez, arrives, and on the 10th October the charter party U executed pfr^v^^WV^vH^^^vr*- 48 xMULHAi.L, a. al. v. BARSS. ^l 3 by plaiivoiffs and Joze M. Bernes. In this instrument plaintiffs are described as owners of the barque " Annie," and Joze M. Bernes describes himself as acting for and on behalf of Senor Joas Freitas Martinas, Madeira Merchant. The voyage to be performed is thus expressed : " A voyage from the port of Liverpool, aforesaid, via Port Med- way in the County aforesaid, to load with lumber to the Island of Madeira, and on her way there calling at the Western Islands, and, if required, one of the Canary Islands, and from thence to Madeira, Demcrara, West Indies, and back to Liverpool, aforesaid, for $1100 per month.' The bond on which action is brought was made contemporaneously with this charter party. On the 31st October the bill cf lading of the lumber was signed by Thomas Day, the master of the vessel, nnd who, as appears by his examina- tion, was then a part owner, having become interested in the vessel after the execution of the charter party. This bill of lading made the property therein mentioned deliverable to Joze M. Bernes, or his assigns, he or they paying freight for said goods as per charter party. On the same day Ba7-ss writes Martinez, enclosing bill of lading and account current, and states his having drawn on Winter 4* Preston, in consequence of Martinez having forgotten to give address of Mr. Scott in London. About this time Thomas Day says : " Defendant told me the vessel was going to Fayal. I saw the bill of lading was filled up for Maderia, and I asked him how it was she was going to Fayal. He told me the vessel would call at Fayal first, and then I was to be instructed by the supercargo, Joze M. Bernes. His words were ; " This young man will tell you when you get there where to go next," The vessel sailed on the 5th Novem'ior, antl arrived at Fayal about the 24th November. Bernes sold there about 53 M. pine lumber, and received American gold for it. Bernes then requested Day to go to Lisbon, but Day, who had the charter party with him, refused, because " it was not according to the charter party." Day, however, was subsequently persuaded to go to Lisbon. They appear to have remained ten days at Fayal, and to have been ten days on the voyage to Lisbon. On the arrival at Lisbon, Bernes sold the rest of the cargo, and deposited the money in his agent's hands. The vessel was detained eight weeks at Lisbon, and took two and a half days to go from thence to Maderia. The delay thus occasioned, made Mar- tinez, who had thereby lost the opportunity of sending her with emigrants to Demerara, repudiate the contract. But he seemed to have been willing to have ratified it, notwithstanding, if Dar/ would have agreed to take passengers to Rio instead of Demerara. This Day refused to do, and the vessel after remain- ing four days at Maderia, sailed for Halifax, and arrived here after a voyage of thirty-six or thirty-seven days. Martinez did not receive the proceeds of MULHALL, et. ah v. 1JAR8S. 40 the cargo, but it was held by his agents and placed to Barss's credit by his direction, and was received by the latter after this action was commenced. Ritchie in support of rule. There was no misunderstanding as to the respective rights and liabilities of the parties, when charter party was signed : then Bernes was recognized as agent of Martinez, who enters into contract with MulhaJl to charter a vessel to go to Madeira, calling at the Western Islands, and, if required, at the Canaries ; and Barss binds him- self, if the voyage be performed, to secure the payment of the freight. But Ber7ies and Day afterwards agree to go on a different voyage. Though there is this alteration of the voyage made by the master, who r- not only master of the vessel, but also part owner himself, and having a copy of the charter party and cognisant of all the facts — the plaintiffs claim that Barss should pay the amount of the indemnity. The voyage to Liibou was an entirely new voyage, npver contemplated nor sanctioned by Borss. (Bliss, J. Was not the reception of the proceeds by Barss a recognition ?) It would at most make him liable for the freight of the goods to Lisbon. The proceeds of that cargo were obtained by Barss, to reimburse himself for its purchase. Barss cannot be made liable for any new voyage entered into after the ves- sel arrived at Lisbon. Berves never was the agent of Barss. (Bliss, J. Did he not recogh:ze him as such when he took the proceeds of the cargo sold by him ?) I think not. The contract was for a round voyage, and the deviation entirely destroyed its character. The general rule is well established that a surety is discharged, if the contract with the principal is in any way changed. Smith Merc. Law, 553,4, 5 ; 5 B. & C. 2G9 ; 3 Madd. 221 ; 6 Beav. 110 ; 4 Bing 464 ; 5 Bing. 485. But it is argued that Barss is liable because he exceeded the authority given him by Martinez. If that were the case this is not the proper action. It is here sought to charge defendant as principal, if he could be made liable, in consequence of his going beyond the scope of his instructions. It ought therefore to be a special action on the case, 16 Mass. 461 ; 3 B. and Ad. 115. Day was not a competent witness. In his testimony he stated that afler the charter party and before bill of lading was signed, he became part owner of the vessel, was so during the voyage, and remained so still. " I expected to receive one fourth of the profits of the vessel in that voyage."" Pave you been paid the profits of that voyage ? " There were no profits of the voyage — I sold out — I sold out last Saturday." Have you received the money ? " That is my business. I have not received the money yet. — I think it was £250 I sold out for. I was not interested in this action when it was commenced." This examination was taken on 18th Dec, 1854. Though Mulhall et. al. were the proper parties to bring suit, the contract being 7 50 MULHALL, et. al. v. BAK8S. i entered into with them, yet after the amount was recovered, he could bring suit against them for his proportion. Ry. & Moody, 29; 6 Biiig. 394; 2 ib. 133. The verdict is for a greater sum than <^he damage claimed on the writ ; there must be a reduction to that extent. It is true there may be an amendment of the writ by increasing the damage in it ; but it can only be done on con- dition of a new trial 2. t. R. VA'l ; 5 Scott, N. R. 887 ; 4 M. and S 94. Johnston, Q. C. If Barss should be really interested, then the action is rightly brouglit. We have sufficient testimony without Day's to render Barss personally responsible. There are the letters from Martinez to Barss, and the answers to those letters. The letter of 4th June from Mar- tinez to Barss proves that there had been previous dealings between them. In that of 7th Dec. he is desired to hire a vessel for the round voyage, termi- nating at Demerara, the freiglit of which to be between £500 and £600. The letter of 7th Oct. notified Martinez of the purchase of cargo, and of master's intention to draw on Scott for payment. Thus far Barss is authorised by Mar- tinez and by Martinez alone. If that vessel had sailed with the cargo direct to Madeira, the moment the cargo left, it would have been Martinez, and Barss would have nothing more to do with it except to get paid for it. But the bill of lading was diverse from the charter party, which was to deliver at Madeira to Martinez, while the bill of lading and the instructions of Barss made the cargo deliverable to Bernes. If Barss had acted up to his instructions there would have been no difficulty. But he has made sin- gular deviations from those instructions, making the cargo deliverable to Bernes as agent of Martinez, instead being deliverable to Martinez. Instead of proceeding to Madeira the vessel was to call at the Western Islands ; instead of terminating at Demerara, it was made to terminate at Liverpool. Barss has dealt with this property as his own — Davidson states that he bought the cargo in his own name. The proceeds of the cargo i^ot into the hands of persons in Lisbon who held them to Barss^s order. He takes those proceeds, and as they exceed the amount of the original invoice, it is evident he does not take them merely to reimburse himself. 'J"he nioment he takes those proceeds he recognizes a complete change of circumstances, and ratifies them. Barss is something more than a mere agent, for he is the owner of the goods. If he had been a mere agent exceeding his authority, there would be some weight in the objection that this should be a special action. But when Martinez repudiates the whole transaction, then Barss accepts it as his own. Bernes is not our mark — he was acting as agent of Martinez ; the moment Martinez is put out of the case, Bernes goes out with him. (Bliss, J. The transaction seems to me to have been intended to have a double aspect. Barss feeling that he had gone beyond his orders, was willing, if Martmez '"ould assume it, that he should do so, otherwise that then he, Barss, would do so himself, and puts himself in a position to obtain the proceeds.) MULHALL, et. al. v. BARSS. 51 We can recover on bond, for Bernes was authorized by Barss to deviate, and at all events Harss has recognized, ratified and adopted the deviiation, by receiving proceeds at Lisbon. If an agent, exceeding his authority, has any interest in the transaction, he is personally responsible. Addison on Con. 450 ; 3 D. and lly. 503. A partner, or part owner, may be released so as to make him a competent witness. 8 Juiist, 6 ; 4 B. and Ad. 7U0 ; 2 M. and W. 199. Nothing is more purely formal than that portion of the writ in which damages are claimed. No prejudice or injustice can be done to the other side by allowing an amendment, at any time, of a part of the writ, which can never mislead the defendant or his Counsel. Courts are extremely liberal in permitting amendments to be made. Archb. Pract. (1853) 269, 560 ; 1 Scott 515 • 16 Eng. R. 257 ; ib. 451. Ritchie. It is only in cases where a party acting as agent and exceeding his authority, uses language in the contract which can render him personally responsible, that the Court will make him so. Story on Agency ; Jenkins v. Henderson ; 13 Jurist, 763. It is true that amendments are allowed now which formerly were not, but there is no change as regards the terms on which amendments may be made. No new terms are impooed, no old ones done away with. The same reasons for imposing terms exist now as heretofore, and courts only grant such amendments on such terms as they think just. A party may be thrown oiF his guard by the amount claimed in the writ, as in this very case where a party goes upon a bond, and upon the bond only, and afterwards failing in that, attempts to sustain a verdict for a larger sum upon an implied contract. (Bliss, J, If this was a mere application to amend and nothing else, it would stand on a diflFerent ground.) Had Day performed the voyage specified in charter party, Barss would have been liable. His going to Lisbon could not have been in consequence of verbal instruction from Barss to Bernes, for he at first refused to go, stating it was not in his charter. But it is said there has been a ratification of the acts of Day and Barss, by the reception of the proceeds of the voyage. The action was brought in August, 1854, and the account of sales appear only to have been received in November, 1854. Defendant did not receive the proceeds of cargo till after suit waa commenced. (Bliss, J. Facts may be given in evidence, though occurring after the av-i^on is brought, if they are the developement of that existing at the time such action is commenced, and prove and ratify its existence.) It is admitted that Barss by taking proceeds of cargo renders himself liable for the freight due thereon. (Bliss, J. The freight was not merely the charge or price of taking goods to Lisbon, but the further expenses incurred in con- sequence thereof, and that freight in this case means all the freight under the charter party.) That could hardly be. There might have been more than one shipper. Barss might only have been shipper of part of the cargo. Would 'S^ W t: ■ i-- 1 i : 52 MULHALL e/. al. v. UAKSS. the other whippcr by taking part sold at Fayal, render himself liable for the rest oF the voyage ? C. A. V. JUusM, J. ITiis case was argued before uiy brothers Dodd and Desuauuks, and myself. It appears that MartAnez., a foreign merchant, residing at 3Iadeira, had requested the defendant to charter a vessel, capable ci ""ringing a certain cargo of lumber, which he specifled, and which defendant was to put on board the vessel, and send to him to Madeira, from which place the vessel itself was to proceed to Demerara. The defendant chartered from the plaintiif the barque " Annie," and loaded her with a cargo of lumber ; but instead of confining himself within the sura limited by Martinez, which was £500 or £600 for the whole voyage round, he engaged the "Annie" at SHOO a month, which might be, and it is proved, was, an amount far exceeding the sum named. The charter party was made between the plaintiffs and Joze M. Berries — who it seems had been introduced to the defendant by Marttnezi and though it is stated in the body of it, to be made with Bernes for and on behalf of Martinez, the covenants are with Bernes individually, ai.d ho executed it in his own name. And the engagement, which was to Madeira and Demerara, contains a stipulation that the yessel on her way was to call at the Western Islands, and if required, one of the Canary Islands, the defen- dant himself executing a bond to the plaintiffs in the penal sum of £1000, conditioned for the payment by Bernes of the freight stated in the charter party. Now, so far, all might have been done by the defendant, whether in strict conformity with his instructions or not, under a belief that he was authorized by them, though in what way or why Bernes was thus connected witb the transaction does not very clearly appear. There are other circumstances, however, which lead us to doubt whether the defendant could have had an eye solely to the interest of Martinez in this matter. He had purchased the cargo and shipped it, but the bill of lading which he took, made that cargo deliverable at Madeira, not to Martinez, but to Berries, who went in the ves- sel as the supercargo, (so he was called by the defendant) who told the mas- ter the vessel was going to Fayal ; and when he was asked how that was, as the bill of lading was filled up for Madeira, the defendant replied that she would first call at Fayal, and when he got there, Bernes would tell him where to go next. The vessel accordingly did sail to Fayal, where the deck load of lumber was sold by Bernes for cash. While at Fayal Bernes appeared undecided where next to go. He finally directed the master to proceed to Lisbon. This was a manifest deviation from the charter party, and the mas- ter was reluctant to comply with it; but at last he yielded to the urgent request of Btrnes, who said he knew it was not according to the charter party, but providing the master would go, it was the place appointed for MULHALL et. al. v. BARSS. aa hiiu. Now this could only mean that it had been so appointed by the defen- dant, for most assuredly it had not been so appointed by Martinez, as the sequel of the transaction shews. The master then having been directed to follow Berries' further orders, and this deviation being by his order, it becomes thus the act of the defendant himself. Indeed, it appears to me that we can- not now hesitate to consider the defendant himself the principal in this busi- ness, and that Bernes was acting as his agent in it. And this view of the case, which may be collected from the circumstances already stated, is more str^^ngly confirmed by all that followed. The vessel went to Lisbon, and there the whole cargo was sold by Bernes, the proceeds being left in the hands of the agent who sold it. From that port the vessel sailed to the Island of Madeira, for which the cargo was originally shipped. There Martinez at once repudiated the charter party, and washed his hands of the whole affair. He appears from his letter of the 6th February to have been struck with the fact which has been already mentioned, a singular one no doubt, that the bill of lading had been made to the order of Bernes, and remarks truly that there seems to bo a mystery in the business, and tells him that his not sending the vessel direct to Madeira had put an end to his arrangements for sending her on to Denicrara. Now how does the defendant act under this state of thinij-s. If Bernes was not his own agent in all this, he was the agent of Martinez, as in the charter party he seems to be called. If he were the agent of Martinez, and this indirect voyage, and deviation to Lisbon, and the sale of the cargo there was his doing alone, Martinez could not have cast off his previously incurred responsibility to the defendant, and repudiated the transactions which the latter had entered into on his account. But Martinez does so, and puts it upon the fact of the defendant not sending the vessel direct to Madeira, which, he says, was " very bad." The defendant submits to it all. He does not, so far as we can see, remonstrate or object, or indeed seem surprised at what occurred ; in fact he acquiesced in it in the fullest manner ; for upon the return of the vessel home, when he is made acquainted with these facts, he drew for and received the whole proceeds of the cargo whicli Bernes had sold. In this, then, there is, it appears to me, not merely a clear admission that Bernes was not the agent of Martinez, by whose conduct the latter would have been bound, but the most ample recognition that in the direction to the master of the vessel to go where Bernes told him, he was responsible for the course pursued and the proceedings which took place, and that Bernes, whose act and sale of the cargo he thus adopted, was his agent in all. There is one slight piece of testimony which I may also refer to, as it has no inconsiderable bearing upon this point, and shews the defen- dant's own continued view of it. When Davidson, who had sold him a part of his cargo, applied to him afterwards for his payment, the defendant put him off from time to time, saying he had not got his returns from Lisbon, and that he had j£3d0 beyond the amount of his charges, which latter state- 54 MULUALL ft. al. V. liAKSd. IS i' : i'i J Dient he repeated on another occasion to another witness, — 'thus treating the whole matter as a commercial transaction of his own, as in truth, one ia led to believe was not far from the way in which it was considered by him from the outset. There could not be a (luestion that he was liable for the freight to Lisbon : that was not denied by his Counsel, who only contended that his liability extended no further. But now that Martinez is altogether out of the case, we must look upon Barss as the real charterer of the vessel, and Bernes the mere nominal party to it, put in charge of the cargo, and having the dispo- sition of it by the defendant's authority, under which he carried it to a market and sold it for the benefit of the defendant ; in short. Bernes was his agent, and what he did was therefore done by the defendant himself. In this view the plaintiffs are entitled to receive from him not merely the freight for carrying the goods to the port of delivery, as in ordinary case-?, but freight according to the agreement under which the vessel was engaged to carry it. The charter party itself has not been followed or completed, because through the conduct of the defendant himself, or that of his agent Bernes, it could not be. The voyage in part has been thus defeated, and the vessel compelled to return home from Madeira direct. But the owners are entitled to be paid for the whole voyage out and home, as it was actually performed, and to this extent I consider the defendant is liable. The verdict of the Jury was for £1225, but the damages laid in the declaration were only £1000, and this furnished another ground for the defendant's rule for a new trial. It is clear that it cannot be sustained for the excess; nor can we, as was suggested by the plaintiffs' Counsel, obviate the difficulty by amending the declaration and inserting a larger sum, sufficient to cover the amount found by the Jury — the rule in such cases being that this can only be done by granting at the same time a new trial. But the plain- tiffs may do what they next proposed, enter a remittitur for the damages beyond those which are laid. Though not having adopted this course before the present rule for a new trial was granted, the defendant will be entitled to the costs of this rule. There was one other objection taken by the defendant. It was to the evidence of Day, which I certainl / look upon as very material to the plaintiffs' case. Day was the master of the vessel. He was the witness to the charter party, and afterwards became a part owner of the vessel, and was such when his evidence was taken de bene esse under the statute. Before that, however, he had executed a release to the plaintiffs of all his right, share and interest in the voyage in question, and all benefit under it and arising therefrom. I do not see how this objection can after this be sustained. Day is not a party on the record. When the vessel was chartered he had no interest, and the action was therefore brought by the plaintiffs with whom alone it was made, who were then the sole owners. It is true that the freight which they recover would belong to all the new owners, but his MULHALL et. al. c. BAUSS. 55 share of it Day has given up and released to the plaintiffs, who will therefore after that recover for themselves alone. Day's interest is at an end, and was when he was examined. He was then no longer an incompetent witness. Upon the whole case, then, the defendant would be entitled, as I have already said, to have his rule nisi to set aside the verdict made absolute with costs, on the ground of its excess beyond the amount of damages laid. But we shall allow the plaintiff to enter a remittition of this excess, and to enter up a judgment on the amount of damages laid in the action upon pay- ment of the costs, if he so chooses. DoDD, .J. Concurred in the opinion delivered by his brother Justice Bliss. The learned Counsel had promised to furnish authorities relative to the amendment of the declaration, but had not done so. Desbakres, J. I am of opinion that the ground of objection taken to the verdict in this case, arising from the admission of Thomas Day's testimony, cannot prevail ; for although he was a part owner of the vessel with the plaintiffs, and as such had an interest in the freight for which this action was brought, not having executed a release of all his right thereto to the plaintiffs, he was a competent witness for them, under the authority of Wilson vs. Herst, 4 Barn. & Adol. 760 ; and his testimony, which is very important, was properly received. As to the second ground of objection for a misdirec- tion, I am also of opinion that the charge of the learned Judge was substantially correct. Bernes it is true professed to charter the plaintiffs' vessel, and the defendant to furnish the cargo on account of Martinez ; but it is quite clear from the subsequent conduct of these parties, that the defendant was in fact the shipper on his own account, and that Bernes, the ostensible charterer for Martinez, was nothing more than the supercargo for, and acting under the instructions which the defendant gave him. It appears from the letters produced on the part of the defendant, that Mar- tinez authorized him to charter a vessel and ship to him a quantity of lumber, and spars, direct to Madeira, and that defendant probably at first intending to make this shipment to Martinez, agreed to charter plaintiffs' vessel for that purpose ; but the charter party instead of being made between the plaintiff and the defendant, was entered into between the plaintiff and Bernes, for a voyage " from Liverpool or Port Medway to the Island of Madeira, calling on her way there at the Western Islands, and at one of the Canary Islands if required, and from thence to Madeira, Demerara and back to Liverpool," The cargo too, by the bills of lading was made deliverable to Bernes instead of Martinez, and the defendant became bound under the penalty of £1000, to pay the plaintiffs the stipulated freight for the voyage when performed, in case Bernes did not. When the vessel was ready for sea, the defendant treating the charter party as a nullity directed the master no MUUIALT. et. al. v. UAHSS, ■j %. t fii ■\ ^i! ir to proceed to Fayal, and from thence to such ports or places as Bernes should direct, and the master, after remonstrating with the defendant on tho change of the voyage, sailed for Fayal, where a part of the cargo was sold^ and from thence by Bernes' direction to Lisbon, where the residue of the cargo was sold at a handsome profit— the proceeds of which the defendant received. The charter party was then in effect, if not by mutual consent, rescinded, and another voyage was performed in place of that which was at first intended and agreed upon. The substitution of the new voyage relieved the defendant from all liability under the bond : for by that instrument ho was only bound to pay freight on the performance of the voyage described in the charter party, in case Bernes should fail to pay. The vessel having performed thi' substituted voyage at the request and by the directions of the defendant, and earned freight, tho question is to whom the owi)ers of that vessel are to look for payment. They cannot look to Martinez, for the shipment was not made to him. They cannot look to Bernes, for the charter party entered into by him was abandoned and treated by both parties as a nullity. Who then is to pay the freight ? None other it appears to me than the defendant, for whose sole benefit the voyage was performed. Tho next question is that the damages are excessive — being for a larger sum than are laid in the Declaration. This is a valid objection ; but as the plaintiffs expressed their willingness at the argument that the verdict should be reduced, I think the reduction may and ought to be made to save the necessity of a new trial on this ground. The case of Pickwood v. Wright, 1 H. Black, 642, is an authority to warrant us taking that course. In tliat a verdict was taken and a judgment entered up for a larger sum than the damages laid in the Declaration. A writ of error was brought on this judg- ment, and on a rule to show cause why a remittitur for the excess beyond the damages, should not be entered, the Court made the rule absolute on payment of the costs of the writ of error. This case was recognized and acted upon mlJsher v.Dansey, 4 M. & S. 94, in which a writ of error was also brought and judgment entered for a larger sum than the damages laid in the Declaration. An application was made for leave to amend the judgment roll by entering a remittitur for the difference, and it was contended on the other side that at common law the Judges could only amend their judgments in the same term ; but Lord Ellenborough in delivering the judgment of the Court said : " Without determining whether this may be treated as vitium clerici, which, however, seems to have been the opinion in Hard^ vs. Cath- cart, or whether it falls within the scope of the Court's general authority to amend, as in Pickwood vs. Wright, it appears from that case that the Court has authority to amend such errors as this after the term of the judgment.' The case of Leeson vs. Smith, 4 N. and M. 304, to which my attention was called after the argument, was decided on a very different principle, and UNIACKE P. BUUNDIGE, et. al. bears no analogy to the preceding cases. That was an action for money lent and interest, in which the statute of Limitations was pleaded, and the proof was that the plaintiff sent his neicc to the defendant to ask him for his interest money, who gave her twelve shillings, which she handed to the plain- tiff. The under-shoriff of Derbyshire before whom the cause was tried, told the Jury that there was no distinct proof of any debt, but that they might consider how far the payment of the twelve shillings for interest afforded an inference that there was a then existing debt ; and the Jury without any other evidence to warrant it found a verdict for £13 168. A rule nisi was granted for a nonsuit or a new trial on the ground of misdirection and of the verdict being against evidence, and Lord Denman there said that " the verdict was for too much, but that the Court could not reduce the damages without the consent of both parties," and a new trial was granted, not as I take it because the Court had not the power of reducing the damages found, but because there was no proof of a debt for any ascertained amount, without which it was impossible to say for what sum the verdict ought to be entered. In this case there is clear testimony of a debt actually due to the plaintiff for a sum greater than the amount of damages laid in the declaration, and therefore I think the verdict may without the slightest injustice to the defendant be reduced to that amount. Johnston, Q. C. The defendant is not the successful party — he is not therefore entitled to cost. Ritchie. The Court has pronounced judgment in the case, and it is not usual after that has been done, to have a now argument. Bliss, J. The case has been well considered. It is irregular, after the Court have given judgment, to raise the (juestion again. UNIACKE V. BRUNDIGE, et, al Where there are other money dealings between a mortgagor and mortgagee, besides those originating on the mortgage, and tlie whole dealings are comprised in one account which is adjusted and settled between them ; and by that account a balance is ad- mitted to be due greater in amount than the principal of the mortgage, the mort- gagor cannot set the payments made by him against the mortgage debt, and thus turn the balance into a simple contract debt Where the course of dealing on such an account has been to allow interest on both sides, and to change interest into principal once a year, and the mortgagor assents to that mode of accounting and signs the account, he cannot afterwards set it aside as usurious. A party moving to make a rule nisi absolute, may ask for a modification of that rule. This was a suit commenced in the Court of Chancery about eleven years ago, for the foreclosure of three mortgages. Joshua Brundige, the defendant, in the year 1811 mortgaged a farm to Mr. Chandler , for £250; and in the same year gave a second mortgage for £300 to J. S, Morse^ and in 1812 gave a 8 V , 68 tJNIACKE V. BRUNDIOK, et. ttcs that the sum of £430 was due; but he also states that large sums h;. •" ' en paid by John Morse to J. S. Morse, in re- gard to which he cannot decide whether they have been paid on account of the mortgages, or not. The report was sent back in order that the evidence taken by the Master might be laid before the Court, that they might decide what the Master stated he could not. Our object was gained in having the evidence before the Court ; we did not therefore object to the confirmation of the report. It would have been useless expense to object again for the pur- pose of having it sent back to the Master to report anew. Johnston, Q C. The Master was required to ascertain what sum was due on the mortgages. He states that a certain sura has been paid ; but as to certain other payments he cannot decide whether they have been made on account of the mortgages. Even if the reports were not complete, it would be too late to attempt to set them aside now. Dan. 1241 ; 1 Grant 269 ; Jac. and Walker 39, 670. But these reports are complete. The decree of the Court found certain mortgages to be chargeable against defendant : he was required to shew how much had been paid upon them. The Master by not deciding that these payments were made on account of these mortgages, in fact decides that they were not. Ritchie. The effect of the report is, that no satisfactory evidence had been adduced before the Master to cause him to charge the payments against the mortgages. The evidence is sent here for the purpose of ascertaining I't^V wy'**y:;''*?^'*^''W!'» 60 UlYIACKK v. BIUJNDIGE, et. al. I'l » !|| !^i Mi r II I whether the report be sound or no, and to give the means for sustaining or destroying it: after the report i» cunfirnied the evidence becomes useless. Haluburton, C. J. There has evidently been a misapprehension on the part of the Counsel relative to the effect of this report, and I should be sorry if the parties were thereby precluded from arguing this case ; nor can I shut my eyes to the fact that the Counsel for the plaintiff, in moving upon the report, hesitated as to whether he should except to it, or move for its confirmation. Each party deemed the report to be in his favor, and fo'* that reason neither ol>jected to it. The Court has not adjudicated upon it, and I think the case ought to go on. Buss,.]. The Court cannot grant the rule now asked for by Counsel for plaintiff. The report is by no means definite. The rule assumes that the Master has done what he expressly states he has not and cannot do ; that is, ascertain the exnct sum due on these mortgages. The Counsel for plain- tiff say they think there Is enough on the face of the reports to induv-e the Court to give them their rule. But I do not think :here is. The Master has reported certain suius to have been paid on account of these mortgages, and if he had stoppel there the report might have been definite enough ; but he goes on to say that other payments have been made, respecting which he cannot detenuino wh2ther they have been made on account of these mortgages, or oa the goneral dealings between the parties. There was nothing for the defendant to object to in this report. He could not object to the amount of the mortgages, for that "as admitted ; nor that the Master had not allowed the payments ; for the Master had decided nothing in regard to them. DKSBAiVRiffl, J. It would bo an act of injustieo to preclude p;irties fron? shevting the true staff' of accounts, when the Master has not determined upoi^ them. WiLKiNH, J, The Master's first report was inconclusive and indefinite. He was ihcn required to make a second report, returning the evidence. ' is second report was evidently required that the facts should be laid before the Court, in order that they might determine what their officer confessed him- eelf unable to decide. The amount due on these mortgages is not then yet determined; and it remains for this Court to make ihat certain which the Master has left unsettled. Johtiston, Q. C. If the reports them.selves be not definite and conclusive, yet read in connexion wito the evidence returr."' +hey become so, and entitle us to a decree of foreclosure and sale. The account stated shews a larger TJNIACKE V. BllUNDlGE, et. al. (il balance than what we claiai. It also shews the mode of dealing between the partius, and establishes the principles for which their dealings were regulated. It matters not that the account was signed in 1833, and tl'"! dealings e-^ ^nded over a long period of years previouB to that time, during which t. 3re appears to have been no settlement of accounts between the parties : for the subsequent ratification settles the mode of accounting as conclusively as if the parties had agreed beforehand relative thereto. Steivart and Smith. There were several amounts paid which were specially appropriated towards the reduction of these mortgages. The evidence on this point consist in memo, in the handwriting of James Morse. (Bmss, J. Suppose there were specific appropriations, does not the settlement of 1833 override them all.) There is nothing 'n the account to shew that all the credits are not to be appropriated, as the law will appropriate them to the extinguishment of the most onerous debt. When a debtor owes on two accounts, he may at the time of payment direct to which of those accounts the payment shall be applied. If he gives lio direction, then the creditor may elect. If, however, there be a general running]; account, the law directs that the appropriation shall be made to the most one-ous portion of the debt, and to the earliest items. Story on Contr. ^ 3",3, 578, 671 ; 3 M. & So. 178 ; 12 Jur. 383 ; Patch on Mortgage, 246 ; 1 Vern. 24 ; Freem. 261 ; 4Russ. 154 ; 1 Mer. 604 ; Story on Part. 363-4 ; 1 M. & M. 40 ; 2 B. k i). 65 : 7 Beav. 10 ; 5 Bing. 16. Now the most onerous portion of this debt, and among the first items in the account, are these mortgages; and as the payments made were more than suflicient '^o discharge th^se mortgages, even had there been no specific appropriation, and the case rested solely on this settlement, then plantiff" is not ontitled to a foreclosure and sale — for there is nothing remaining due on tbe?n. The memo at the foot of the account states simply that the whole amount due by John to James Morse including the Brundige mortgages, was <£800, which ho promises to pay. It does not state that those mortgages are still outstarding liabilities. The argament in this account relative to compound interest is clearly usurious. 9 Ves. 264. Johnston, Q. C. It would lead to manifest injustice to read the account as defendants' Counsel desire it to be read, and to apply the principles of law as they desire to apply them. They wish to take no notice of the monies advanced by James to John, but that all monies paid by Johri to James should go in payment of the mortgages. The very cash thus advanced by James might be made applicable to the payment of his own security and leave him with only the personal responsibility of John in place of hie mortgage security. Ritchie. The mode of accounting with annual rests was in favor of John at a m ii ;i: ill 1 ■ i |;| I Hi ; '' '■ 1 > , :i' f U m IN RE-ESTATE OP HARTMAN. the commencement of the account, and he ought not to complain if it he against him now. The law will not allow any agreement relative to compound interest to be entered into prospectively, but will sanction a retrospective agreement by which interest may be turned into principal. 9 Vea. 223 ; 11 Ves. 101, 103 ; 2 Daniel Ch. Pract. 898. Bi.iss, J. I am of opinion that the balance of £801 (is. 9d. found to be due by the account settled in 5833, less the sum of £60 deducted by J. S. Morse, ought to be considered as consisting of the sum of £690 for principal and £61 6s, 9d. for interest on the Brundige mortgages. The amount therefore to which the plaintiff will be entitled will be that amount, with the interest accruing, due on the principal sum of £690 from that date to the time of sale. The other Judges concurred in the view taken by Mr. Justice Bliss, and the rule was ordered to be drawn up accordingly. IN RE-ESTATE OF HARTMAN. TitE delivery of the key of a chest containing money, with the expression, " all the money in that chest I give to you," is not sufficient to constitute a " donatio mortis causa." Tuis was an appeal from the judgement of the Court of Probate at Lunenburg. Frederick Hartman, about three weeks before his death, called his son Philip, a^d a friend, Charles Pernett, to his bedside, and requested the latter to open a chest in the room, and count the money therein. Pernett "ound that there was £178, in dollars After the money was counted, the chest was locked by his son Philip, at the request of Frederick Hartman. After the chest was locked, Frederick Hartman said to his son Philip, " all the money in that chest I give to you." When the chest was locked, Philip gave the key to his father, and he gave it back to his son, and told him to give it to Pernett to take charge of, because he had nothing more to do with it. Subsequently Frederick Hartman sent for Pernett and requested him to bring the key of the chest with him. When Pernett came to his bedside, he told him that one of his grandsons wished to have his deed. Pernett then opened the chest, took out two or three deeds, locked it up again and carried the key back with him. Pernett subsequently gave the key to Philip, who during his father's life-time, and with his knowledge, took out at one time the sum of £50, and afterwards other sums without his father's knowledge. At the time of Frederick Hartman's death, there was only £60 in the chest. IN RE-ESTATE OF HARTMAN. 63 The Court of Probate charged Philip, who was one of the executors, with the sum of £178. From this decision there was an appeal. Clarke for the appellant. This was a donatio mortis causa. 1 Story Eq. Jur. § 607 ; 2 Ves. Senr. 431 ; 2 Ves. 440 ; 2 Strange 955 ; 1 Williams on Executors, 652. 656: 7 Taunt. 224 ; 1 P. Williams, 404 , Eug. L. & Eq. 184. J. W. Johnston, Q. C, and J. W. Johnston, jr. This species of gift is not looked upon with favor in our Courts. Whatever might have been the intention of the deceased, it is clear he did not do that which was necessary to perfect this form of gift. It is essential in these cases that the donor should part with all dominion over the property. The mere delivery of the key was not sufficient. Prec. in Chy. ^ 269 ; 1 Rop. on Leg. 10, 15 ; 1 Williams on Exors. 404, 441, 554 ; Holt's Rep. 9 ; 2 Ves. 431 ; 3 P. Williams, 356 ; 9 Ves. 1 ; 12 Ves. 39 ; 2 Ves. jr. Ill ; 1 31ad. C. C; 2 Esp 662 ; 2 B. & Aid. 551 ; 10 Lim. 245. Ritchie and Clarice. The law requires some act to be done which is signi- ficant of the intention of the donor. Whatever would be a sufficient delivery under the statute of Frauds, will support this species of gift. This is not the case of a symbolical delivery. 3 Kent, ^ 355 ; 23 Eug. L. & Eq. R. 250 ; 1 Leading Cases in Equity, 645, 655, 661, 667. C. A. V. Halliburton, C. J. This is an appeal from the decree of the Court of Probate of Lunenburg, touching a donatio mortis causa, claimed by one of his executors. In order to decide whether the decree of the Judge was right, I will consider that Philip Hartman, who claims the donation, was not an executor of his father's will, but founded his right upon what had passed between his father and himself relative to this donation. For this we must turn to the proceedings before the Judge of Probate ; and there cannot be a doubt from the evidence there affi)rdcd that the Judge was right in his first view of the subject, that the case came within the principle laid down in Bunu v. Markham. 7 Taunt. 224. That case is a very strong one. It is thus summed up in the marginal note : " A person supposing himself in extremis caused India Bonds, Bank Notes, and Guineas, to be brought out of his iron chest, and laid on his bed ; he then caused them to be sealed up in three parcels, and the amount of the contents written on them, with the words, for Mrs. and Miss C. the plaintiffs. He then directed the brother to replace them in the iron chest, to be locked up, the keys to be sealed up, and directed to be delivered to J. ( his solicitor and one of his executors) after his decease, and replaced in his own custody, near his bed, and afterwards spoke of this property as given to the plaintiffs," Yet the court held that that was not a donatio mortis causa, for want of a sufficient delivery and continued possession,— and the four Judges, Gibbs, 04 IN llE-ESTATE OF HAllTMAN. fif !;! ' is C J., and Dallas, Paike and Burrmigh, unanimously agreed not only to set the verdict for the plaintiffs aside, but directed a nonsuit to be entered. Now, as in this casj, if the plaintiff had not been an executor, in which character he became possessed of the trunk after the death of the testator, but had been compelled to bring his action against the executors to obtain possession of it, would not this case of Bunn v. Markham have been conclusive against him, for the trunk containing the money was not in possession of the plaintiff, but remained in the possession of the deceased, and was found among his property by the executors. The traditio was wanting, and the plaintiff must have become nonsuit. But this Court, on considering the affidavits of the claimant, directed a further investigation of the case by the Court of Probate, which has cer- tainly brought to light the whole case ; but the Judge on mature deliberation, has confirmed his former decree. On turning to the evidence of Charles Peniett and Philip Hartman, we find the same difficulty respecting the traditio of the trunk still remains; the clain)ant, if not an executor, but put to his action to recover its contents, must still have become nonsuit, and so far I think the Judge's decree right, as it respects the money in the trunk at the time of the death of the testator. But now let us reverse the case. The claimant not being an executor, has a large portion of the money which had been in the trunk, in his possession, and the executors seek to recover it from him, as the property of the testator. Under what circumstances did he become possessed of it, with the full assent of the testator during his life. The trunk is never removed from his room, but Philip Hartman has free access to it, with the testator's knowledge and approbation. He takes out JibO to pay his sister's legacy of jtl50. The old man not only approves of this, but says he might as well have taken the whole £150 out of the trunk, as the money was his own. He takes other money out to exchange for paper, and to pay his personal expenses, and though he says he does not know whether his father knew this or not, yet it is evident that if he had known of it, he would have consented to it. Under the circumstances in proof it is evident that he had possessed himself of the money which had been in the chest, and that he had not possessed himself of it wrongfully. Philip Hartman, therefore, can neither be a gainer nor a loser by being one of his father's executors ; ho cannot return the money which remained in the trunk, of which he became possessed, as an executor, because it was in the possession of the testator up to the hour of his death ; and he cannot be deprived of the possession which he had lawfully acquired, during his father's life, of the gift, which, whether we consider \i. inter vivos or mortis causa was perfected by what amounts to tradition, before the father died. As it appears by the evidence that £60 only were in the chest at the IN RE-ESTATE OF HARTMAN. 65 decease of the testator, I am of opinion that that sum only should be carried to the credit of the testator's estate, instead of the sum of £178, and that the appellant should be allowed to return the residue to his own use. But as the appellant sought to obtain a reversal of the whole decree, and the appellees to sustain it in toto^ and neither have fully succeeded, I think that each party should pay their own costs. • Desbarres, J. I entirely concur in the opinion just given. 3y being lained in It was in innot be [ father's iis causa It at the WiLKiNS, J. Philip Hartman's claim to the £178 cannot, in my opinion, be supported as a donatio mortis causa. An essential ingredient in such a gift — that must accompany it— afford evidence of it — and operate in it, as a substitute for nuncupation, is an ac- tual present delivery of the thing itself which forms the subject of the dona- tion. A defect in this particular, if it exist at the time of the alleged donation, cannot be supplied by any possession, subsequently acquired. This last cannot operate retrospectively upon the original act, so as to ren- der that perfect which was incomplete before. This indispensable traditio rei is in my opinion entirely wanting in this particular case. At the time to which the alleged donation has been referred, the only evidence of a delivery consisted of the handing over by old Hartman to Pernett, as a trustee for Philip Hartman, of the key of a chest in which the money was deposited, which chest was never removed from the possession and control of Frederick Hartman, either by the trustee, or by the cestui que trust, neither of whom resided in the house in which the donor lived and died, and in which the chest remained. Had Pernett, or, perhaps, Philip Hartman, been domiciled therein, the legal consequences might be different. The possession of the key, being thus separated from the possession of the chest, the key cannot be identified with the chest, so as to be the medium of a delivery of the latter. The key of a warehouse, delivered as indicating a donation, would be held an actual, and not merely a symbolical delivery ; but simply because, accor- ding to the nature of the thing, it is the only supposable mode by which a man, in his last illness, can transfer the articles that the warehouse, to which the key furnishes the means of access, contains. Here, however, no practicable difficulty existed in making a corporeal tradition of the chest itself to Pernett, together with the key ; certainly none would have been experienced in delivering personally to him, the money bags that the chest contained. For these reasons I am of opinion that the learned Judge of the Court y i i -f ip 6G TN RE-ESTATE OF HARTMAN. ' ", I iv! I of Probate for the county of Lunenburg was right in not considering this ob a donatio mortis causa. But, I think that although his attention was not directed to this view of the case, neither did it form a ground of appeal ; he should have regarded the j£50 taken by Philip Hartman from the chest, in his father's life time, in his presence and with his assent, expressed at the time, as an ahsolute gift to the former ; that is, if the learned Judge was satisfied with the cvidejice on which such assent rests. That evidence was given by the appellant, and is thus reported by the Judge. Philip Hartman, ui'ter stating that he had given Mrs Himmelman £100, says: •' the other £50 I took out of the chest I have mentioned before, which was in my father's bed room — the money I ga\ o her (Mr.? Himmelman) was £100 in doubloons, and the rest in dollars. 1 told my father I would take the £50 out of the chest to pay Mrs. Himmelman — a?td he told me to do so." I consider the circumstances under which young Hartman was thus per- mitted to appropriate this sum, the same in legal effect, as if the father had taken the £50 out of the chest, and with his own hand had presented it to his son. The transaction was marked by a delivery, which, according to Evans vs. Smalljnece, 2 Barn, and Aid. 551, is essential to the validity of a gift. But I am not prepared to view in the same light the £68 which would appear to have been at different times, and in different gums, abstracted by Philip Hartman from the chest, in which £60 alone were found after the death of the elder Hartman, because, whatever his intentions with respect to this, and to his son, would appear to have been, there is no evidence what- ever of a delivery of any portion of this to the latter, and therefore there was no gift of it. The original act of alleged gift, it must be borne in mind, was either a perfect donatio mortis causa, or it was a nullity. If it was a nullity, Philip Hartman had no more control over the contents of the chest than a stranger, and it cannot be contended that a declaration made by old Hartman to this effect, " A. B. might have taken his own money out of the chest," would operate as a gift to A. B. of the money therein. A Jury might, perhaps, from such a declaration infer a previous gift to A. B., but they would not draw such an inference in favour of Philip Hartman in this case, because the phrase, " his oum money," must be referred, under the circumstances of this case, to the original transactions, which, from its im- perfections, in point of law, was absolutely inoperative. The executors should, as I conceive, have been charged with the £178, less the £50, and the balance should have been made subject to distribution. The decree, in my judgment, should be rectified in accordance with the foregoing views. FAIRBANKS r. UNION MARINE INSURANCE CO. 67 FAIRBANKS, et. al v. UNION MARINE INSURANCE COMPANY. Where n cargo of salt fish issued under a policy containing the ordinary memo. clause, was injured by salt water, and tiie vesHel was so damage'l : ■'>' jir ■i'ii iiii ■ i' 70 FAIRBANKS v. UNION MARINE INSURANCE CO. the owners. The fact of his being supercargo made no difference in that respect. His authority as supercargo was limited to taking the cargo to Brazils, and placing it there in the hands of some person for sale. His authority did not extend to the carrying of it to Barbadoes. In some cases even the owner might become the agent of the insurer. 5 M. & S. 79 ; 3 Kent 332 ; 2 Am. 1193 ; 1 T. R. GU ; Phil, on Insur. 156 ; 8 Taunt. 775. Ritchie was heard in reply on the point that the mere frustration of the voyage was sufficient to render underwriters liable. It is not a reason- able rule that the destruction of a voyage should render insurers liable on memorandum articles. They are aware of the perishable nature of those articles, and insure not against a retardation of the voyage, but against a total loss from the perils of the sea. The damage to the article must not be a remote consequence of a peril of the sea, but must be its immediate effect. 2 Phil, on Insur. 250 ; 7 East, 41 ; 3 B. & P. 388 ; 16 East. 214. If the principle be as contended for here, then the Counsel and Judges took much unnecessary trouble in arguing and deciding the case of Roux v. Salvador. For in that case there was certainly a frustration of the voyage, so far as respects the subject matter of that suit. There is not a single case to be found in which that principle is sustained — but many adverse to it. 8 C. B. 962 ; 18 Pick. 90; 2 American L. C. 356, 374, 377, 379, 381 ; 9 0. B. 30, 94 ; 15 Q. B. 649 ; 6 Exch. 263 ; 5 B. & Al. 617 ; 1 Dow and Ry. 238. C. A. V. Halliburton, C. J. This case, notwithstanding the time consumed in the argument of it, lies in my mind in a very narrow compass. The verdict states that the fish were partially damaged by salt water, occasioned by the disaster to the vessel, before she arrived at Barbadoes, and that decay would become inevitable, and in consequence the fish must become a total loss to the owners if the voyage had been prosecuted. Now, if this were the state of the case it comes within the principles laid down in Roux v. St. Salvador, and judgment must be given for the plaintiffs. • But the question is whether there is evidence to bind the Jury to find such a verdict : to decide this we must turn to the report. The captain in his examination gives an account of the violence of the gale which the vessel encountered, in which there can be little doubt that a sufiicient quantity of water might have been shipped to damage the cargo ; but on his arrival at Barbadoes, where the Jury find he went for repairs, he did not ascertain the fact, but proceeded first to Trinadad, where he could not sell his cargo, and then to St. Thomas where he disposed of it. There it was for the first time partially examined, and the Master gives this account of it, viz. : " I first sent on board for a sample, and about a half a dozen drums were sent, and were opened in my presence. They were the worst I saw of the cargo. I FAIRBANKS v. UNION MARINE INSURANCE CO. 71 then a4>nt for another sample. This was the first time I saw the cargo since it was shipped. When I first saw the sample it was very much shrunk in the drums, very much sweated, and with a very unpleasant smell on that account. When this sample was opened, Mi". James (the merchant to whom he applied for advice) exclaimed, • my God, you had better take away this rotten atufi", it will never sell here.' He requested me to send for another sample, which I did. It was on the receipt of the second sample that Mr. Yardham took the cargo as it should turn out ; the second sample wa3 a decided improvement on the first : they were shrunk but had no stench about them." Now this evidence would not have warranted the verdict which the Jury have found, if it stood alone ; but when we turn to Mr. Pryor's evidence, it is strengthened. • , ' He states as follows : — *' I am acquainted with the West Indies — its cli- mate and trade. I have been engaged in the trade more than twenty years." He proceeds : " any portion of damaged fish is likely to damage the whole cargo." He subsequently adds : " If a cargo of fish were damaged when it got to Barbadoes, it would not be fit for food when landed at Pernambuco." Now although this evidence is not very strong, I cannot say that the Jury had no evidence upon the subject. The Master, I think, did the best for all concerned, under the circumstances of the case. He appears to have lost no time unnecessarily at Barbadoes : finding that he could not repair the vessel there in less than three months, and that he could get no other vessel there to tranship the cargo for its original destination — he determined at Barbadoes to bring the voyage to a close and to make the most of the cargo, for whom- soever might be interested in it. In pursuance of this determination he sailed to Trinadad, and from thence to St. Thomas, where he sold it. The price for good fish at St. Thomas at the time appears to have been 4 dollars — he got but 2J for the whole cargo — the purchaser taking the risk how it might turn out, after two samples had been exhibited, both of which was more or less damaged. Now the Jury might have inferred, and I do not think the inference unreasonable, that the fish that were examined had been injured by the salt water ; and if that portion of the fish was likely to infect the whole cargo, they might infer that it had infected or would have infected the whole, and have totally destroyed it before it could have reached its port of destination. In such a case it would have been totally destroyed by one of the risks against which, under the principles laid down in Roux v. St. Saf.vador, the under- writers had engaged to save the owners harmless. I prefer sheltering my opinion under the authority of that case to following the plaintiffs' Counsel into the wider question which they have opened to us respecting the termina- tion of the voyage, by a damage to the-vessel alone, while the cargo remained uninjured. Before we are compelled to decide this question some further 79 FAIRBANKS ». UNION MARINE INSURANCE 00. !:i iii I II light may flow in upon us from the sages who preside in Westminator Hall, who have enabled us, by their decision in Roux v. St. Salvador, to order a judgment to be entered for the plaintiffs upou the verdiot in this ease. Desbakres, J. This action is brought to recover from the defendants, as insurers upon a cargo of fish shipped by the plaintiffs, on board of a vessel called the " Cornelia,'" on a voyage from Halifax to Pernumbuco and a market la Brazil. The fish, by the policy are declared to be •' free from average unless general, or the ship be stranded," and the case comes before us on a special verdict, which sets forth that the fish were partially damaged by salt water, occasioned by the disaster to the vessel before arriving at Barbadocs ; that decay would become inevitable, and in consequence the fish must become a total loss to the owners if the voyage had been prosecuted. The only question is, whether the Jury were warranted by the evidence in finding such a verdict ; for if they were the judgment must be entered for the plaintiff on the principle laid down in Roux v. Salvador, which in all essen- tial points is a case most like the present. In that case the vessel having hides on board (which, like the fish, were exempt from partial loss) sprung aleak in the prosecution of her voyage, and was obliged to put into the nearest port to repair. It was there found that the hides were in a state of partial fermentation, occasioned by being wetted by the sea water, which had entered, into the vessel through the leak, and also by the effect of dampness produced in the hold by the leak ; and in consequence of the progressive putrefaction of the hides it was found impossible to carry them on, or any part of them, in a saleable state to the termination of the voyage for whi.h they were insured. They were sold at public auction, and bought for the purpose of being tanned. That was held to be a total loss. Now in the present case the vessel was overtaken by a violent squall of wind, which carried away her spars and rigging, and as the Master and Mate both say, rendered her unmanageable for the space of thirty hours, during all which time it appears the vessel, from the violence of the wind and sea, was rolling and almost continually shipping water. A good deal of water Tvent down the cabin and forecastle, and through the coats of the masts, and some through the leaks on the deck into the hold. Finding the vessel, in consequence of the injury she had received, was unfit to proceed on her voyage, the Master after consultation with his oflBcers, bore up to Barbadoes to repair, which though not the nearest was considered to be the most acces- sible port. But when the vessel arrived at Barbadoes, it was found that sbd could not be repaired there in time to prosecute the voyage, and further that there was no vessel in that port in which the cargo could bo re-shipped to its port of destination. The voyage was consequently abandoned, but as the cargo could not be sold at Barbadoes the Master proceeded from thence to Trinadad, and £rom Trinadad to St. Thomas, where the fish were sold for the FAIRBANKS v. UNION MARINE INSURANCE CO. 78 bcnotit of all ooncornod. Tho cargo was not examined at Uarbadoos, and there is no positive evidence to show that the fish wore'damaged when the ves- sel arrived there ; but it is quite clear that when the hatches were first opened at St. Thomas, and the fish was offered for sale, several of the drums were found to be materially damaged and unsaleable, and as the vessel met no disaster and was only 7 or 8 days proceeding from }3arbadooH to St. Thomas, I think that the Jury might arrive at the conclusion that tho fish were partially damaged when they arrived at Barbadoos. It appears that any portion of damaged fish on board of a vessel is likely to infect tho whole cargo, and Mr. Fryor says that if a cargo of fish were damaged when it got to Barbadoos, it would not be fit for food when it landed at Pernambuco, and ho adds that if the fish on board of the " Cornelia " were even sound at Barbadoos, it could still hardly be carried to Pernambuco in a fit state, by which 1 presume ho meant in a saleable state. This is the evidence of a merchant whose opinion is entitled to great weight, because he says ho has been engaged in the fish trade for the period of twenty-five years, and is well accjuainted with that trade. The evidence of Mr. Salter is still stronger. He says, " in a passage of thirty days from hence to Barbadoos, fish ought to be good, but if reshipped from thence to Pernambuco it would only be fit for manure." Tmonsend. who has made several voyages to the Brazils, as a shipmaster, corroborates the testimony of the previous witnesses, as to the great risk if not the impossibility of shipping fish from Barbadoos to the Brazils, without the certainty of their becoming unsaleable before their arrival there. Upon this evidence and that of tho Master and Mate, I think the Jury might find the facts to be as stated in the special verdict, and having so found, the principle as laid down in Roux v. Salvador, will apply here, " that if goods once damaged by the perils of the sea, and necessarily landed before the termination of that voyage, are by reason of that damage in such a state, though the species be not utterly destroyed, that they cannot with safety be reshipped into the same or any other vessel, the loss is in its nature total to him who has no means of receiving his goods, whether his inability arises from their annihilation or from any other obstacle." I am therefore of opinion that the loss in this case was a total loss, for all the facts, which under the authority of the case referred to are necessary to con- stitute such loss, are found by the Jury, and set forth in the special verdict. It was contended at the argument, that the fish, if abandoned to the under- writers, ought to have been landed and sold at Barbadoos, and that in proceeding from thence to Trinadad and St. Thomas, the Master was acting as the agent of the owners, and as such resumed tho control of the cargo, and sold it on their account. But I do not think the owners can be held responsible for the conduct of the Master after the voyage was aban- doned. From that moment he became the agent of tho underwriters, and 10 ,;t ;■< J'li'l ii ^ II 'ii? !'l 74 FAIRBANKS v. UNION MARINE INSURANCE CO. whatever he did inuBt be regarded >»8 having been done for them and not for the owners. " •- WiLKi.NS, J. I consider myself at liberty to read the special verdict in tms case as if it had stated in terms, first, that the fish had sustained, in the storm which induced the bearing up for Barbadcas, such an injury i'rom salt water as rendered inevitable a total destruction of it liefore it could have reached its destinatio:,, even if it had been sent on in the original ship, repaired in a reasonable vlme after its arrival in Barbadoes, or immediately, in another vessel procured for the purpose of transhipment. And. second';,, that the M^.ster had fr^^m necessity, borne up for Earbado{;S — the nearest practicable port — dona fide, for the purpose of repairs. Then, witliouL particularly considering the many cases, ancient and modern, that have been cited, it appears to ine sufficient, to say that the particular case is rifarly within the principle of Roux v. Salvador^ the only question being, whether the evidence sustains the finding. And I think that the proved condition of the cargo when operid at St. Thomas, viewed in connexio'i v/ith facts as to the eifect of the g.ue upon the vessel, during its continuance, and at its termination, that arc detailed by the Master and the Mate, in their depositions, sufficiently warrant the inference of sea damage then having ensued to the fish; whilst fhe testimony of those officers, cor- roberated by that of the witnes^ies ai the trial, satisfactorily shows that, referring to the perishable nature of the cargo, and to the period that mu?t necessarily havo elapsed before it, in its deteriorated state, could have possi- bly reaf ' ^ Pernambuco, after leaving Baihadoes ; referring, also, to the influ- ence o: ..iimate upon it in its dama^v-d condition, it cou d not have arrived at its primary destination without its character qoa fisL I iisg changed, or in other words, without its total dettruction. If the Jury designed to expfc~s an opinion that from the effects of sea damage during the gale, the c: rgo must have been destroyed before it could reach I'eniambuco, even thoug.< the vessel had not ru. 'or Barbadoes, but hr.d prosecuted the original voyage, vheir finding, of course, in that view of it, is still more decisive for the plaintiff. It follows then that the loss was total, and that all the acts, after abandon- ment, done by the Master, were done by him in the character of agent for the undcrwritf^rs, and as acting for their benefit. It follows, also, if I have rightly interpreted the special verdict, and it bo supported by the testimony, that all the material issues raised in this cause were substantially involved in that finding. The lave celebrated decision to whicl; I have adverted is, in my opinion, decisive on the questions raised by this verdict ; but the case of EoMnson V. the Cmnrtwnwealth Insurance Company, reported in 3d Sumner 220, in which case, by the way, there was no proo.' of damage to the cargo from .i August 6, 1856. — 'Before Halliburton, C. J. and Bliss, J. ^ BOUDROT V DONOVAN. Wlien there has been only a part payment, a plea of payment and satisfaction is false. Lenoir for plaintiff moved to set aside plea. Action was for recovery of money paid to defendant for a vessel sold by defendant without authority. Also for money paid out in defending suit in respect of such purchase. There were also the common counts. Ritchie. The first plea meets the allegation in the plaintiff's first count ; that count is ambiguous, and the pleader has met one of the constructions of which the count is capable. The pleas to the common counts are true. If a pleader puts in those counts when there is nothing in dispute under them, he cannot move to have the pleas set aside as false which answer them. As to the plea of payment, a part of the amount has been paid, and therefore that plea is true. (Bliss, J. No — a part payment does not support a plea of payment and satisfaction. The plea ought to state the amount which has been paid.) Rule granted to set aside plea of payment ; but without costs. January 20, 1857. — Before Halliburton, C. J. CREIGHTON v. COOK, et. al Before the passing of 19 Vict. Cap. 24, the Court had power to discharge a person as agent of an absconding debtor, the first term, when the creditor did not give any notice of Iiis intention to mciiiire a personal examination. The agent in such case is entitled to liis costs of motion of discharge. Such motion should be made at tlie tonn in tiie county where the agent resides, when he has given notice of his intention to appear in such county. This was an application by Lynch to retax a bill taxed by Desbarres, J. at Guysborough, by a party summoned as agent of an absconding debtor, and who had given the plaintiff notice under section 10, cap. 141, of the Revised Statutes, that he would appear at Guysborough, the writ being returnable at Halifax. The plaintiff having given him no notice requiring him to submit to a personal examination, the agent, by Counsel, moved for his discharge, which was granted. The costs of the agent, with the costs of the application were then taxed and execution issued therefor. Lynch now contended that the plaintiff was not boimd to require the examination in the first term, — that the application and rule for his discharge w PRACTICE CASES. 79 were premature, and were in fact not necessary, and that the agent should have waited and taken his judgment the following teim, as a matter of course, without motion or rule. A.nu the application, if necessary, should have been made at Halifax where the f\ it was made returnable. Besides, no notice of taxation had been given to the plaintiff. James contra. Tne defendant ought not to be compelled to hold funds, if any in his hands awaitin*] the action of a plaintiff sleeping o/or his cause. The plaintiff must use diligence, and should have given the agent immediate notice, if his written declaration was not satisfactory. He was entitled to his discharge from the plaintiff^s laches. The former law and the j./actice under it, supported the present practice. If entitled to move at all, as the law gave him the privilege of appearing at Guysborough, he had a right to make all motions affecting his rights there. Notice of taxation is not given on circuit and is impracticable. This bill was taxed in the usual course. . lletaxation refused. Jan. 27, 1857. — Before HAi^LiBUBTON, C. J., Bliss, J., and VVilkins, J. McDonald et. ai. marimaud. In moving to set aside an award the rule nisi must contain the objections on which the party intendss to rely. A rule nisi to set aside an award had been grunted. Smith in support of rule. The rule of reference renuiroa ttiat the award shouUl 1)1! uuulo by a certain day, auil ho. thou " ready to bo delivered to the parties." Only one paper was signed by the arbitrators which was filed. It did not therefore come within the terms of the reference which retjuired that each party should have a duplicate original. Ritchie. The rule in this case does not &it clause of the act, and when tangible property is attached, 1 Geo. 3 cap. 8, it is surely reasonable to suppose that the owner will make some enquiry after it and learn its situation before the expiration of the three terms, which must elapse before the plaintiff can pro- ceed further to establish his debt. If effects or credits which are not visible or tangible, are attached in the hands of any person holding the same for the absentee, the same period is allowed for the party in whose hands they ■were attached, to notify his principal, and should he neglect that duty, is it not probable that the defendant himself wiii make some enquiry after his effects and credits in that long period ? In addition to which it is provided in the act that if the principal be an inhabitant or he hath for sometime been a resident within this Province (which language plainly evinces the intention of the Legislature that the operation of the act should not be confined to those only who had actually been personally preisent within the Province) then a copy of the same summons and declaration must be left at his dwelling house or place of abode, last, and usual abode, fourteen days before the sitting of the Court. Then let it be recalled that there can be no judgment by default with us, as it appears was the case under the Tobago Act, upon which Lord Ellenboroug/i, ccinimented so strongly in the case oi' Buchanan v. Rucker. The plaintiff after the expiration of three terms, must, in the lan- guage of the act, bring the cause to trial and prove his debt to the satisfac- tion of a Jury, under the direction of the Court : and before he can sue out execution he must give security for the repayment of all such monies as may be levied by virtue of such execution, in case the absentee should demand a rehearing, and prove the reversal of the judgment at any time within three years after such judgment has passed. That injustice has seldom resulted from the act to enable creditors to recieve their just debts out of the effects of their absent or absconding debtors, may, I think, be inferred from the rarity if not total absence of instances in which absent defendants have claimed such rehearing. My acquaintance with the proceedings in this Court conmieoced 50 years ago. Seldom does a term pass without our having some case under this act ; yet I do not recollect a single case in which a rehearing has boon required. COCHRAN V. DUNCAN. 83 For these reasons I am of opinion that a debtor may be proceeded against, under our acts relating to absent or absconding debtors, although he may never have been -present in this Province. It was next objected that the agent could not have known that the debt was due at the time that he made the affidavit on which the process issued. The answer to this is very plain ; he has sworn positively in that aflSdavit that the defendants were justly indebted to the plaintiff in the sum endorsed on the writ, at the time he had made it, and if that statement had been un*,rue, which it is now clear is not the case, defendant would have been liable to be proceeded against for making it ; but we could not set aside the pro- cess upon any such statement of its untruth by the defendant. Mr. Yi/ung proceeded to make an objection that the debt was contracted in England between two parties resident there, both of whom were liable to the bankrupt laws in that country. If this be the fact, the objection is fatal, and the rule to set aside the process must be granted. Lord Ellenborough very properly asked in the case of Buchanan v. Rutker, before cited, " Can the Island of Tobago pass a law to bind the rights of the whole world ?" It would be both absurd and unjust for any of our subor- dinate Legislatures to claim a right to legislate for those who have never reidered themselves liable to its jurisdiction by a personal residence, or by transacting business through the medium of others within it. Contracts en- tered into between persons in other countries, and connected with transac- tions carried on in this Province, must be decided by the laws of the country in which they were made, and subject to all the liabilities which those laws impose, nor can the laws of this country take cognizance of them unless the parties should remove themselves into our jurisdiction. It is evident that the Legislature, when they passed the act, did not intend to assume so extravagant a power; their object was to enable the creditors here to ioco- ver their just debts out of the effects of persons absent or absconding from this Province, and therefore I think that when both plaintiff and defendant are not resident, and that the debt sought to be recovered did not arise out of transactions carried on in this Provinc" that no proceedings can take place under this act." The Attorney General contended that as the process issued upon an affida- vit made here, that a certain sum was due to the plaintiff for money paid, it must be inferred that the debt was contracted here, and that the acceptance of the bills drawn on defendants by McNab, Cochran ^ Co. in Halifax, shows that the debt was due in Halifax. Mr. Gray followed on the same side, and contended that the inferences that the debt was not contracted here, were not sufficient ; but if they could be drawn they are strong that the debt was due here. I cannot subscribe to these positions. The residence of the plaintiff Cochran, in England is verified by the verdict of G. Young, and that fact 1 t (I'J Tf, liai 'ii II:: 84 OOOniUN V. DUNCAN. remains undisputed by the plaintiff, Without reference, then, to any of the affidavits of thednfendants, which were excepted to, what does the affidavit of J. W. Cochran, agent of L. D. Cuchran, on which the process issued, state. It says that the defendants, both of London, merchants, were indebted to the plaintiff, who resides in Eiigliind, for money paid, laid out and expended by the plaintiff for them, and for money had and received by the defendant, for him. If the contrary be not shewn, is not the inference almost inevi- table that these acts were perlbrmcd by both p.irties in a country where they are domiciled. In the second affidavit by /. IF, Cochran, he states that the plaintiff is a i)artner of the firm of Mv.^ah, Cuchran ^- Co. here, but that the defendant is due to him (not to the partnership) for monies paid, &c., by him, and for n:onics received by defendants for him, and that for securing that debt certain bills were drawn by the house upon the defendants, in favor of the plaintiffs. Why that course was pursued is unexplained, but it does not alter the nature of the transaction. The debt is not claimed as a debt due to the firm here, but to the individual partner who resides in England. He is the plaintiff, and a clerk in the firm here is acting as agent in his behalf. The action is not founded upon the acceptance of the bills drawn by the firm, but the process at the ;■ iiit of Cochran on his own separate account, for money paid and advanced by him for thcni. There is nothing then in the whole com- plexion of the transaction, as exhibited by the plaintiffs agent himself, to support a supposition that the demand arose out of a transaction in this coun- try ; but on the contrary the inference appears to me to be inevitable that the plaintiff's claims upon the defendants is founded upon business transacted between them in England, where they both reside. For these reasons I think that the rule to set aside this process must be made absolute. Hir.L, J. An application was made during the Michaelmas Term, to set aside the proceedings, upon several grounds, one of which was that the defts. never personally resided within the Province, were not absconding debtors, within the meaning of the ab.sconding act, and conse(jueiitly the Court had no jurisdiction. This objection was in the course of the argument, disposed of by the Court, who intimated that personal residence was not necessary to give jurisdiction, and that if the defendants had carried on and conducted business through their agent, having an establishment here, or if the debt, the subject of the present action, were contracted here, that were sufficient to give jurisdiction. The question was therefore narrowed down to the enquiry whether the debt had been contracted in Nova K tia, for it is not asserted by the plaintiff that the defendants were ever resident or carried on business here through their agents. The utmost that the plaintiff states is, that Angus Duncan, one of the defendants was in this Province three or four years ago, for a few weeks, with a view to enlarge the business of his (JOCHRAiN r. DUNCAN. S5 firm. Now, it is the duty of the Court to sco that this statute is not abused, and that f)artios not really within its spirit and inclining bo not held liublo to its operation ; and we ought also in all cases like the present, to see that, wo do not assume a jurisdiction over parties and causes, when the law never in- tcndod to give it to us. With the most scrupulous watching, this u<,'t is too liable to be vised for improper pur[)oscs ; and therefore, let us not open a wider door. From the affidavits on both sides, it is manifest that the parties, plaintiff and defendants, before and at the time of the contracting of this debt, were domiciled in London and carrying on business there. No one therefore could say with a show of reason that they were the objects of our ab- sconding debtors' act. I say, then, with that undisputed fact before us, prima facie, we have no jurisdiction, and it would be our duty so to pronounce, unless the plaintiff shewed us clearly and distinctly that we had. In the very writ the defendants arc described as " both of London, merchants." This fact, then, standing alone and undenied, would, 1 think, be sufficient. But is there not abundant evidence before us to show that the debt here was not contracted within the jurisdiction of this Court ? The affidavit states that the alleged demand of the plaintiff against the said Charles Duncan and deponent, was founded upon two bills of exchange, dated at Halifax respectively on the 3rd day of April last, each for the sum of £500 sterling, drawn by the house or firm of McNab, Cochran ^ Co. on deponent, the said Charles Duncan, at HO days after sight, in favor of said plaintiff or order, and accepted by deponent and said Charles Duncan on the lUth of said month of April. That the said bills did not fall due till the 2Lst July last, and were made payable at the office of Messrs. Jones, Loyd <^' Co., liankers, London." Here is an allegation that the demand of the plaintiff was founded on these two bills directed to the defendants in London, accepted by them in London, and payable at a banking house. Speaking, then, with reference to these bills only, when did the defendants become the debtors of the plaintiff? Undoubtedly after these bills had been accepted, and not before. The debt was contracted in London, and not in Nova Scotia. In connection with the admitted domicile of all parties in London, we have it, I think, most clearly and distinctly made out that this debt was cent mc^ .' 'n London, and it throws it upon the plaintiff' to alter this state of facts f heo.n, and to bring himself within the scope of this act. But it was said ihat though the bills were accepted in London, yet the debt, for the payment ot which they were drawn, was contracted with the plaintiff in Halifax. The original was a Halifax debt. Well if that be correct, an opportunity has been afforded to the plaintiff to show it, and that could have been no difficult task. But this has not been done. There is another consideration which weighs strongly with me ; it is sworn that these defendants were declared bankrupts in August last. This was not denied : but Thomas Cochran, in his affidavit says he be- \m. mm i\ (Pit F «?i^^. IMAGE EVALUATION TEST TARGET (MT-3) % 1.0 I.I niia 12.5 ^ 1^ III 2.2 1^ ISA ilia 2.0 !^ I4£ 18 1-25 1.4 1 1.6 „ ^" ► V] ^^ % o'^ % %' / ^c^^ '^ '/ Hiotographic Sciences Corporation 4^ ^^. 23 WEST MAIN STREET WEBSTER, N.Y. 14SB0 (716) 872-4503 I. c> f/. 86 \ COCHRAN V. DUNCAN. lieves they were not so at the time the writ issued, which was on the 31st July. If tliis be so, any judgment we could give would be futile and of no avail, for the Bankrupt laws would override everything we can do here. Seeing this, then, we ought to b^ clear before we give our sanction to these pro- ceedings where, even if the debt had been contracted, the assignees of these Bankrupts, are entitled oy a law superior to our act, to all the estate of the Bankrupts. In Easter Term, 1 842, in the case of Mitckeson x. Duncan, where the same point arose — Bliss J., delivering the judgement of the Court, said — It is unnecessary to consider the objection taken on the part of the defen- dant, as there is another arising out of the affidavit, which the Court cannot overlook. The plaintiff and del'endant both reside out of the Province, and in the city of London. The debt for which the process issued was contracted in Lon- don. It was for goods sold and delivered by the plaintiff to deft., and a copy of the bill of parcels, annexed to the defendant's affidavit, is thus head- ed : London, 8th June, 1841. Messrs. Duncan & Brothers, Bougut of Wm. Mitch'ison & Son. This then is a case which most clearly does not come under our absconding act. If the process could be supported here, there is no case in which par- ties residing abroad might not be sued here on contracts arising wholly without the Province, if a single debtor of the defendant could be found, who might be summoned as his agent, partner, or trustee. It would be too flagrant an abuse of the process of the Court to permit it, and there is noth- ing in the law to warrant such a construction. It was intended to give creditors a remedy against debtors, who, having resided here, had withdrawn themselves, and so would otherwise defeat the creditors from recovering their just debts, or, at most, to give a similar remedy for the recovery of debts actually contracted here. It would be monstrous if our Legislature had at- tempted to make the Court here the arena for litigant parties residing far from its jurisdiction, to control matters arising also wholly beyond it. They could not do so — nor have they. The rule therefore to set aside the process must be made absolute. H,^ GOULD r. GOULD. 87 » I EASTER TERM, 1842. GOULD V. GOULD. /, r. I Where one of the Jurors slept and breakfasted with the defendant, and another partuuk of a glass of rum, with him, held not a sufficient tampering to justify setting aside verdict in his favor. Hill, J. dissenting. In this case the Jury were permitted to separate for the night, and one of theiu slept at the defendant's house, and breakfasted there, whilst another partook of a glass of rum with him, in a public house. After verdict there was a rule nisi to set it aside on these grounds. Halliburton, 0. J. Aftei- citing the cases of Everett v. Ymiell, 4 B. & Adol. 681 ; Diike of Rkkmond v. PFjse, 1 Vint. 124, and commenting on them, said : , , . . ; ; ^ Now in the case under consideration, one of the Jury, who was connected by nianiage with the defendant's wife, went to the defendant's house and lodged there on the night that the Jury were permitted by the Court to separate, pending the trial. The del'endant positively swore that he had no conversation with him on the subject of the cause. The objection, therefore, entirely rests upon the circumstance of the defendant having given the Juror a night's lodging when he came to his house in search of one. Had the defendant sought out the Juror an^l solicited him to have become his guest for the night, it would have had more weight. But in a country like this, where our little county towns are so crowded during the sittings of the Courtj^hat persons frequently find great difficulty in procuring a night's lodg- ing, I cannot think that extending an act of hospitality so very common through- out the Province to a Juror who sought for it, ought to vitiate the verdict. A party is bound not to do any act to win the favor of a Juror who is trying his cause, but can he be required to do an act so offensive to him as to turn him out of doors when he came to s^ek what I repeat is a most common act of hospitality here, and at a time when it is often difficult to procure such accommodation at the little inns in the country towns. I think it would be straining the point too far to set aside a verdict, which appears to be well warranted by the evidence, upon this ground. Nor can 1 lay much stress upon the other objection relative to the glass of rum, of which another Juror was requested to partake on the following morning befoie the Court met. The defendant in an open room, where several persons were present, had called for a glass of rum for himself One of the Jury came in not by his invitation, but accidentally, and the defendant in accordance with a custom which on other accounts I am happy to say is becoming less prevalent, asks him as an acquaintance to participate in the glass he had just ordered. I cannot think that so very slight and so 88 GOULD V. GOULD. m FM very common an act of civility could have been given from such a corrupt motive, or was likely to produce a corrupt feeling in the Juror's mind. » We were told at the argument that in case of a verdict passing in favour of a party who had been working upon the mind of any of the Jury by sinister means, the Court should set aside the verdict without considering whether the proof supported it or not. I am not disposed to dissent from that position when it is clear that this party had used such sinister means. But • hen all that was done may have been done without any sinister intenti- on, and the verdict is fully warranted, as I think it is in this case by the evidence, I should view the transaction so far in mitiore sensu, and should deem the Jury to have been honestly guided by the evidence, in preference to attributing to them the depravity of violating their oaths for so trifling a temptation. While I view this case, however, in that light, I would warn all parties interested in the decision of a Jury, to beware of any — the slightest attempts to exercise any undue influence over them. The convenience of the Court, the Counsel, the Jury, the parties and the wiiue^ises, is so much consulted by the modern practice of permitting Juries to separate for the night, and to re- tire to the comforts of their homes or their lodgings, in civil cases which occupy more than one day, that no one can wish for a recurrence to the old system, under which the physical powers both of the Court and Jury were frequently so exhausted as to render them incapable of discharging their respective duties satisfactorily. Uut as that separation withdarws the Jury from the eye of the Court, and renders them liable to the attempt of the parties to influence them improperly, the Court will ever lend a ready car to every complaint of this nature, and will resist every such improper attempt with exemplary punishment. I do not think, however, that this is a case which calls for it, and I am of opinion that the rule for a new trial should be discharged. l\- Hill, J. The verdict in this case was for the defendant, and the rule to set it aside has been urged on three grounds : 1st. That the defendant, George Gould furnished at his own cost, spiritu- ous liquors to one of the Jury during the trial and before the verdict was given. 2d. Communications with a Juryman relating to the premises, the subject of the action, — and 3d. Supplying one of the Jurymen with lodging during the trial. The grounds taken at the argument for setting aside the verdict, seemed to be considered as unworthy of serious consideration, and too trifling for grave deliberation. But I entertain, I confess, a very diflerent idea, and consider everything having the slightest tendency to sap the pure administration of GUULD V. GOULD. 89 justice and the trial by Jury, (a most important part of it) as demanding our deliberate consideration. lu support of the rule the affidavit of Robert K. Gilbert states in substance that on the morning of the second day of the trial of this cause, and before the verdi"t was handed in, he, deponent, saw George Gould., the defendant, invite John Robe/ts, one of the jurymen who tried the cause, into Ferguson's inn, near the Court House, in Amherst, to drink spirituous liquors with the defendant. That Roberts accordingly went into the inn, where defendant called for liquor, of which the Juryman partook. The affidavit of Thomas Gould discloses that another Juryman, Martin King, after the Jury had been separated upon the Tuesday, accompanied the defendant, George Gould to hia house, was lodged and entertained there during the night by George Gould, at his costs, and charges, and expense, until the following morning. And Mary Gould, in her affidavit, states, that on Wednesday morning, she saw the Juryman, Martin King, upon the premises in dispute in this case, at- tended by the defendant, who was pointing out the same to the Juryman, and shewing, apparently, and as she believed, the lines and trespasses in dispute, as contended for by the defendant. The affidavit of Jonathan McCully has no bearing upon the case, and, therefore, I shall not remark upon it. It is admitted by both parties that the trial of this cause commenced upon the Tuesday morning, that the Jury, in the afternoon of that day, and before the termination of the cause, were permitted to separate and return to their homes until Wednesday morning, ofl which day the verdict was given. The defendant meets the plaintiff by an affidavit from himself, in which he states that the affidavits of Gilbert, of Thomas Gould, and Mary Gould have been read to him, and that he fully understands them. He denies accompany- ing King the juror to his house, and says he came there unexpectedly. He admits that the Juryman lodged at his house during the Tuesday night, and left on the following morning. He denies pointing out to the Juryman, the premises in question, or their lines, and explains, what took place on the oc- casion. With respect to giving liquor to another Juryman, John Roberts, he says, that on the Wednesday morning before the opening of the Court, he was in the taproom of Ferguson's Inn, at Amherst, taking a glass of spirits, and that Roberts came into the room, and on his invitation partook of a part of a glass with him. He then swears that he held no conversation with King or Roberts, or any other of the Jurors in this case, respecting the merits there- of, previous to the delivery of the verdict, and that he never attempted to influence them in any way in giving the said verdict, and that, except as before mentioned, he did not give meat, drink, or lodging, to any or either of the said Jurors. The affidavits of Mary Niles, Edward Niles, and William C. Pipes, are unimportant, and do not touch the real question. I shall be 12 00 GOULD V. GOULD. MM i SI'! guided entirely by that which is expressly admitted, or not denied by the defendant. From a charge like the present, it would be natural to expect that defen- dant would be anxious to free himself, and to give the fullest explanation on it. He admits that he thoroughly understood it, and therefore he ought to have been explicit in negativing every allegation. Now the facts charged are — Ist. That after the Jury had been sworn, and before the verdict had been given in, one of the Jurors went to the house of the defendant, lodged, and ate. and drank there during the night, at the expense of the defendant, and also on the next morning. It is a matter of the most perfect indifference whether the Juror went to the bouse of the defen- dant invited or uninvited, accompanied or unaccompanied. Of what possible consequence can it be whether a Juryman says, give me £5 and I will give a verdict in your favor, or whether the offer comes from the plaintiff to the Juryman, by proposing to give £5 to him if he would Qnd a verdict in his favour. It is the fact we have to deal with, and therefore if King had pur- posely gone to defendant's house without the defendant expecting him, and proposed to receive a bribe, which defendant gave, would the defendant stand aquitted ?-- surely not. Is, then, this charge denied ? It is on the contrary admitted. The defendant says, *' But deponent further saith that on the Tuesday evening above-mentioned, the said Martin King, unexpectedly to deponent, arrived at his dwelling house, and lodged there during that night." He then describes the catching of" the Juryman's horse on the nest morning. The charge was not only that the Juror lodged the night with the defendant, but that he ate and drank at his expense ; and this is not denied, and tbere- ^nr is admitted. The 2nd charge it, that the defendant had communications with a Juryman relating to the premises — the subject of the action. Let us see how this is met. Mary Gould sw2ars that she saw the defendant and the Juror on the morning of Wednesday together upon the premises, and that the defendant was apparently in conversation with the Juror, and pointing out the same, and the lines in dispute. In answer to this the defendant says : " On the following morning the said Martin King asked deponent to assist him in catching his horse in the pasture ; that deponent went with him and in following the horse they crossed the line between plaintiff's and defendant's farms, at a short distance from the two fields spoken of by the witness on the trial, as the place whereon the trespasses were committed ; but he did not point out the same to the said Martin Kirig, nor shew him the lines and trespasses in dispute as stated in the affidavit of the said Mary Gould." The defendant, it is true, negatives here that he pointed out the lines and premises as stated by Mary Gould, but he does not follow this up by negativing his having held any conversation touching the cause with the Juror at the time he speaks to. After, however, making other statements GOULD V. GOULD. Ot wc have the following : And deponent expressly swears that he; held no conversation whatever with the said Martin King, or John Roberts, or any other of the Jurors in this cause, respecting the merits thereof, previous to the delivery of the verdict. That he never attempted to influence them in any way, in giving the said verdict, and that except as before meptioned he did not give meat, drink, or lodging, to any or either of the said Jurors." If all had been right, and the facts would have borne the defendant out, ho wcakl I should think have been most anxious to have denied his having held uny conversation whatever with the Juror upon the subject of the cause. We do not find here, however, any such denial. One cannot toll oxactly what he may mean by the merits of the cause. The phrase is vague, and appears purposely so, for if no conversation on the subject of the cause had passed between the defendant and the Juror, any professional man would have so framed the affidavit. I am, therefore, irresistibly led to the con- clusion that this cause was the subject of conversation, between the defen- dant and the Juror King. The allegation that he never attempted to influence them in any way in giving the said verdict is equally vague and uncertain. The 3rd charge of giving spirituous liquors to another Juror, John Roberts, is not denied ; and whether the Juryman was invited to go into the Inn to drink, or being in there drank on the invitation and at the expense of the defendant, is quite immaterial. The fact that the defendant treated (as it is phrased in the country) the Juror, stands admitted. But it i,« said all these are little things, too trifling for notice, and that it would be monstrous to set aside a verdict on that account, and particularly so when we see that the verdict is undoubtedly right. Now I take leave to say that if treating, providing meat and drink, or bribing, is a ground of itself for avoiding a verdict, the Court cannot, if any one is made out satis- factorily, enquire into the weight of the evidence for or against the verdict — the sole inquiry invariably is as to the fact. This is not a discretionary matter with us, as where a Jury goes against evidence, but whether what has taken place goes against the verdict in point of law. Where, indeed, anything occurs on the trial of a cause, which though improper is not of itself a sufficient ground for avoiding a verdict, that may and often does form an item for the consideration of the Court ; but where the act itself vitiates the verdict, then whether right or wrong it cannot be upheld. A verdict given by a toss up, may be a very just one in itself and fully warranted by the evidence, but yet would be set aside. As to what has taken place in this cause being a trifle and a small matter, why so it is in one sense — and so is entertaining a man for a week, and so are a few gallons of rum, and so are a few shillings, dollars, or pounds, a trifle ; but these trifles often lead to important things. Where is the true line between these small- and unworthy, and the great things that may be worthy of notice. All VB safe and clear if 92 aOlJLD V, (iOlJLO. i mi I i.-'lili: we admit of no triHes, but I know not when we are to stop, if what has taken place here is to be winked at. If the defendant without saying one word, had slipped a sovereign into the Juror's hand, would that be considered a trifle ? Yes — for according to the argument and the prophecy of one of the learned Counsel who argued the case, one hundred sovereigns given avowedly as a bribe could hot, and ought not to have weighed a feather in setting aside this verdict. Under the influence of this prophetic spirit he boldly declares such ought to be now, and will before ten years be the ruling in England. All that ought to be done, he maintains, is to fine the bribing and bribed parties, and let the verdict stand. Well, whenever this prophecy is fulfilled, I shall abide by the decisions in Westminster Hall, but at present I feel no disposition to uphold what I fear is becoming too frequent a practice in this Province — tampering with and managing Jurymen. I feel a solemn duty imposed upon me, to watch any acts of this nature emanating from either of the parties in this cause, and when I find anything practised tending to create a bias and leaning, where every thing ought most especially to be unbiased, I shall endeavor to punish the person in fault. Now as to the authorities bearing on this case. Lord Coke says — Co. Litt. 227 : " If the Jury, after their evidence given unto them at the Bar, do, at their own charges, eat or drink, either before or after they be agreed on their verdict, it is finable, but it shall not avoid the verdict ; but if before they be agreed on their verdict, they eat or drink at the charge of the plaintifiF, if the verdict be given for him it shall avoid the verdict." And so in the case of the defendant. I do not find this rule controverted in any book of authority, or by any case, since the time of Lord Coke. On the contrary it is repeatedly recognized and adopted. In the Duke of'Richmoyid vs. Wise^ 1 Vent. 125, all the Judges agreed that if a Jury ate or drank at the charge of the party for whom the verdict was found, it disanuls the verdict. In Chitty's Arch. 7th Ed. 1840, p. 286, (a book of no mean authority on this subject) this rule is laid down as still governing. Mr. Chitty makes use of the very language of Lord Coke, and in a note refers to the case of Everett vs. Youells, 4 B. and Ad. 681. In that case I find the rule not disputed but recognized. A Jury had been shut up all night, and about three hours after they had been shut up, a servant of the foreman conveyed a sandwich to him by stratagem ; this was made one of the grounds for setting aside the verdict. The handing a sandwich by the servant to his master would seem to be quite as small and trifling a thing as the lodging and entertaining by the defen- dant himself one Juror for the night, and furnishing a glass of spirits to another ; but we do not find it so treated. Lo7'd Tenterden says — " The delivery of food to the foreman might be a ground for imposing a fine, but it is not a reason for setting the verdict aside. It does not appear that the food was supplied by a party to the cause, nor on which side the Juryman who received it, was at the time. Lord Tenterden here manifestly recog- GOULD V. GOULD. 1)3 nizes the rule in Coke, and had it appeared that the sandwich wa8 furnished by a party to the cause, would undoubtedly have set the verdict aside, for otherwise it would have been absurd to have referred to that fact, and drawn the distinction he did. The reporters refer in a note to Co. Litt. 227, as the governing rule. We do not here find Lord Tenterden making any dis- tinction between little and large quantities of food even when supplied by a stranger to the cause. Courts have ever been jealous of even the possibility of tampering with Juries. Nothing is more important in tho administration of justice than to keep a watchful eye upon parties in a cause, when anything is practised that may have any tendency to improperly warp the minds of a Jury. And for myself I will say in cases of this nature I will never enter into the inquiry with a disposition to palliate and fritter away such attempts. I will never inquire how much has been given, but whether any has been, for I cannot measure the exact influence that any given quantity of meat or drink may have upon the mind, or whether it may have any. I find the rule to be that nothing shall be given. I think the rule based upon sound sense, and if adhered to will conduce greatly to the purity of trial by Jury. Bliss, J. This was a rule nisi to set aside a verdict found for the defend- ant, on the ground of improper conduct in one of the defendants, in treating some of the Jury during an adjournment of the trial, which occupied three The afiidi*/its, on which the rule was obtained, charged the defendant George Gould with having returned home, after the trial on the first day, in company with one of the Jurors, who was lodged and entertained by him that night, and that the next morning the defendant was seen on the land in dispute with that Juror, pointing out to him the bounds and the trespass which were the subject of the suit. The defendant was further charged with having furnished another of the Jurors with spirituous liquor to drink, at an inn, on the second morning of the trial. The defendant has by his affidavit, in some degree at least, exculpated himself from that which forms the most serious part of these charges. He denies that he invited or accompanied the Juror to his house, but states that this Juror came there unexpectedly, in the evening, and lodged there that night He also most fully denies the whole statement relative to his having pointed out the bounds of the land and the trespass, as detailed in the affidavits pro- duced by the plaintiff, and he shews how those probably originated in a mistake. He admits that being in the tap room of the inn, on the second morning of the trial, the other Juror referred to, entered, as he was pouring out a glass of spirits, of which he invited him to partake ; but he expressly swears that he held no conversation with either of these Jurors, or any other of them, respecting the merits of the cause, before the verdict was delivered, and that he did not attempt to influence them in any way in giving their verdict. *M ^ OOULD V. UUULD. If the law be that if any of the Jury, after they are once impannelled, eat or drink at the expense of the party for whom their verdict i'i found, it will vitiate it, — and if the law be of that stringent nature that the Court can exercise no discretion — then, undoubtedly, we should be bound to set this verdict aside — for that such was done here is admitted by the party himself against whom the charge is made. I aui not convinced that the law is at once so inflexibly severe and so extensive in its application. It is necessary, no doubt, that the tribunals of justice should be most carefully and vigilantly guarded from all corruption, and that their decisions should be free from even the suspicion of being given under any undue influence. There are some acts of misconduct in themselves so unequivocal — some in which the criminal intent of the party is so apparent, or the mischievous effect on the Jury so clear, or so highly probable, that the Court cannot hesitate to set aside a verdict which has been found, under such circumstances, for the guilty party. But it does not follow that an extreme rule should be laid down, which would make it imperative on the Court to set aside every verdict found for a party who at any stage of the trial may have incautious- ly, perhaps, given to a Juror the most trifling article of food, as a few figs, a pippin, or a sandwich. Nor do I think that either the authority of Lord Coke on the cases cited from trials per pais, and elsewhere, preclude the Court from enquiring, in some cases, into the criminal intent of the party, or the effect which it has produced. Co. Litt. 227 ; Tr. per pais, 248 ; Vent.; 124. The law, as stated in Coke Litt., 227, is, " if the Jury, after their evidence given unto them at the bar, and before they are agreed on their verdict, eat or drink at tl'o charge of the party for whom they afterwards find their verdict, it shall avoid the verdict." And in all the cases in which the verdict has been attacked on this ground, in trials per pai", in Vent. 124, and in 4 B. and Adol. 631, the furnishing of food to the Jury, was after they had retired from the bar to consider their verdict. This appears to me by no means an unimportant distinction. Not that acts of treating at any other period may not have proceeded from a corrupt motive, nor be less influential, perhaps, in biasing the Juror who receives the favor, but then I apprehend in those cases these matters may be enquired into, whereas if the law precludes all exercise of judgment, and compels the Court to set aside the verdict on account of food furnished to the Juror, it is, I conceive, only where it has been so furnished after the Jury have retired from the Bar. By the law of England, as Lord Coke says in the same passage, " the Jury after their evidence given upon the issue ought to be kept together in some convenient place, without meat or drink, fire or candle, and without speech with any, unless it be the bailiff, and with him only if they be agreed." One of the objects of which appears to be to accelerate their unanimity ; 3 Bl. Com. 375. And it was once thought, that GOULD V. (JOULD. 95 if the Jury had eaten or drank, after they had retired from the bar, though at their own charge, the verdict was thereby avoided. 2 Hale, P. C. 30y. But now, as Lord Coke says, it is only where they eat or drink at the charge of the successful party. It is, therefore, a direct violation of the law in thus eating for which the Jury are finable, and for which the party who furnishes them with food is also punishable, for the oflfonce neither depends on the motive nor the effect of it, but is complete without reference to either. It may be considered too, not without reason, that the very supply of food to a Juror at this juncture by an interested party, furnishes so violent a presumption of a criminal motive, that no denial of it would be listened to : and indeed the influence which it may exercise in retarding that free unan- imity which it is the object of the law to produce, and in bringing about an agreement, not the result of conviction alone, as it ought to be, makes it more necessary for the Court to visit the offence in the manner it does, with this speedy and exemplary punishment. A trifling article of food lurnished though but to one Juror, after he has retiied, may have an influence on the verdict, inasmuch as it may enable that Juror to hold out, and so compel others to give up their opinion to his. But the same result could not bo produced if the food or drink had been given at an earlier period, or on another day. And I can therefore eonceive that a peremptory rule may be laid down with respect to the one case, which is not applicable to others, lu Everett v. Youell, 4 B. and Aid. 681, the complaint was that a sandwich had been furnished one of the Jurors after they had retired from the Bar. The application to set aside the verdict failed, because it did not appear to have been furnished by a party in the cause, nor that refreshment had any effect in carrying the verdict. But there is nothing in what fell from the Court to induce a belief that a mere trifle like a sandwich supplied by the party himself to a special Juror (he is called J. A., Esq.) if it had been on a previous day of the trial, would have vitiated the verdict. I cannot believe a circumstance like that which might have been of a most innocent character, and appear a very trivial matter, would, aa a matter of course, call lor this interposition of the power of the Court, and compel it without further inquiry to set aside the verdict. Some discrimination must surely be made between an act which may be imprudent, and one that is criminal, between a case that furnishes presumption of undue influence, and that where no reasonable mind can a moment suspect it; and, therefore, not deeming myself to be absolutely bound to set aside the verdict, as a matter of course, I look to the facts themselves, to see if they require it. The defendant has purged himself, by his affidavit, from the very grave and serious imputation of having designedly attempted to influence the Jurors. He has shown too that there was no premeditation in what he did — that the one Juror came to his house an uninvited and an unexpected guest, and that the other, with whom he shared a single glass of spirits, entered the tavern m GOULD V. (jiUbLU. i\ 'I ■• ut tliLi uioinunt ho wu8 diiiikiiig, und thut with iieithor of them did he jjold any conversation respecting the merits of the cause then being tried. I cannot say on these facts that the defendaut has so improperly conducted himself, that ho deserves to have his verdict set aside, as a punishment for it, and bo made on that account to incur the expense of a second trial. I do not mean to say that his conduct was free from blame — nor would I pass over it without censure — for no man ought, nor, if he possessed right feelings, would place himself in such situations with one who was a Juror in his cause, uor extend to him those acts of hospitality or courtesy whilst that trial was depending. Such acts necessarily must and do excite suspicion, and in many cases would be sufficient to raise a belief in my mind that the verdict had been influenced by them. Indeed, I nmst say that whore the matter was duubll'ul, and a fair question was open to the Jury, to be decided for or against suuh party who had acted in this manner, I should feel myself com- pelled to annul a verdict, which I could not but see might have been owing to improper influence. Is there, then, anything to rebut this presumption here, and vo remove those suspicions ? I think in a matter like this we are warranted in examining the case itself, in trying the verdict by the facts, not to see if it can be supported by them, but to ascertain if any other could have been given, fur, if not, we cannot any longer suppose that an improper influence was produ- ced on the Jury by an act of the defendant. It appears that the land in respect ot which the trespass was brought, is part of that which had been formerly received by Desbarres in an action of ejectment, and was subsequently conveyed by him to each of these litigant parties. Now the only evidence in which there is any discrepancy, as far as I can discern, was in respect to the locus in quo being within the bounds, as described in the deed from Desbarres to the plaintiflF. The land, however, had been actually surveyed, and the several allotments of the plaintifiF and defendant had been marked and staked out, and according to the lines and bounds thus well established and defined the two parties had been put in possession by Desbarres, and within these limits of the defendant's possession the locus in quo was situated. The defendant was therefore lawfully possess- ed of the land in respect of which the action was brought, and he could not be treated as a trespasser either by Desbarres himself, or by the defendant who held under him, and had taken his own possession according to this decision, and thus acquiesced in. On such evidence as this, which stands wholly uncon- tradicted, I know not how the plaintiflF could possibly maintain his action ; nor, if the verdict had been for him, could it be upheld. Thus viewing the case, I do not think that the conduct of the defendant or the ends of jus- tice require that the verdict should be set aside, and the case be sent to another Jury who would find precisely the same verdict. And yet I must admit that I arrived at this conclusion not without some hesitation, for I MEISNER V. FANNING. 97 would not be thought to regard with indifieronce the probably too frequent attempts to tamper with Jurors, or give room for the belief that any suoh can be made with impunity. If my decision on this matter should lead to this, I can only say that such ought to be the effect of it ; and, when a proper occasion arises, I shall not be found less forward than others to mark in an effective manner the disposition which I feel to correct so great an abuse. It might perhaps operate as a salutary warning to others, if we were to set aside the verdict, but I do not think it therefore right to make that example when the case before us does not warrant it. The present rule for setting aside the verdict must, in my opinion, then be discharged, but under all circumstances I think it should be without costs. MEISNER V. FANNING. The Crown cannot grant the waters of a navigab)« arm of the sea, so as to giT* • a right of exclusive fiyhing therein. Hill, J. — The question arising 'n the present case, is upon a demurrer taken by the defendant to the replications of the plaintiff to the first, seoond and third pleas of the defendant. The action is trespass, and the declaration contains six counts. Upon the first of these no question arises. The second charges the defendant with breaking and entering the close of the plaintiff, covered with water, situate at Deep Cove, in the County of Lunenburg, fishing in that close, and catching and carrying away therefrom many barrels of salmon and other fish. The third count is substantially the same as the second. The fourth count charges the defendant with breaking and entering the general fishery of the plaintiff, situate at Beep Cove, fishing therein, and taking and carrying away there* from a quantity of mackerel and other fish. The fifth count is the same in substance as the fourth, and the sixth count is not touched by the demurrer. The defendant as to the second and third counts pleads. First, that the close mentioned in those counts, at the time of the trespass, was, and still is, and from time immemorial hath been, part and parcel of a navigable arm of the sea, called Deep Cove, and was and is a common and public and navigable arm of the sea, in which the tides and waters of the sea have flowed and reflowed ; and that, therefore, all the Queen's subjects had and have a right to fish therein, pnd that defendant, in the exercise of this right did, at the times stated, fish therein and carry away the fish taken, as he lawfully might. The second plea of the defendant to these second and third counts, does not, in any material part, vary from the first. The defendant, as to the fourth and fifth counts, which charge the defend- ant witli breakip'^ iV"'\ entering the plaintiff's general fishery at Deep Gove, 13 98 xAlEISNER V. FANNING. If .1:: 'v'!! and taking fish therefrom, pleads that the general fishery set out in these fourth and fifth counts, was, and still is, and from time immemorial has been, part and parcel of a navigable arm of the soa called Deep Cove, and then proceeds to justify the defendant in fishing, as in the pleas to the third and fourth counts. So that to this action of trespass for breaking and entering the plaintiflF's close, covered with water, and his general fishery, the answer of the defend- ant is : This close and general fishery was a navigable arm of the sea, and I had a common law right to fish therein. The plaintiff, as to the defenda;it's plea to the second and third counts, replies, in effect, that the close covered with water in these counts mentioned by a grant from the crown, dated the 6th July, 1799, under the great seal of this Province, made to Thomas Cockran, James Cochran and William Cochran, was granted to those persons, and described as follows, viz. : '* The waters round Deep Cove, in Mahone Bay, to wit, the water and the land under the water or the shore of Deep Cove m Mahone Bay, beginning at the extreme point or head at the entrance of the said cove or harbor, until it should come to the other extreme point or head at the entrance of said cove or harbor, and measuring all round said cove, directly into said cove or harbor, 100 feet from the high water mark or line," together with all privileges, profits, commodities and appurtenances, belonging. That the legal representa- tives and devisees of these three parties respectively, by deed bearing date the 5th of November, 1838, conveyed by deed the premises named in the grant to the plaintiff and one John Sealmrg, and described in this deed as follows : '* All the laud, and land covered with water, beach and shore lying around the said cove, called Deep Cove, beginning at the eastern point or head, at the entrance of the said cove, and following the several courses of the shores of the said cove, until it sh'.ll come to the other extreme point or head at the entrance of the said cove, and measuring all round the said cove, directly into the said cove, 100 feet from the high water mark or lino, together with the fishery and liberty of fishing, coirimonly called Deep Cove fishery, therewith usually held and enjoyed, being the same land, and land covered with water and premises, in the said grant hereinbefore in part recited, contained." And the plaintiff then alleges that because, at the several times mentioned, he, the plaintiff, was under, and by virtue of the grant and deed respectively men- tioned, and by the lease and license of the said John Seaburg, in the sole exclusive use, possession and enjoyment of the said close, covered with water in the said second and third counts mentioned, he ought to maintain his action. To the second plea to the third and fourth counts, the plaintiff replies that ho ought not, by anything in that second plea alleged, be barred from his action, because he alleges that the said close, situate at Deep Cove aforesaid, with the uppurtetiaucuc, huth been in the uuiatcrruptcd exclusive use, posses- MBISNER V. FANNING. m sion and enjoyment of hiui, the plaintiff and other persons, under whom he lawfully and rightfully claims the same, for twenty years and upwards, and ha'ili, during all that time, been held, used, occupied and enjoyed by plaintiff and those under whom he claims, exclusively as their property. To the third plea, which goes to the fourth and fifth counts, alleging a breaking and entering the general fishery of the plaintiflF at Deep Cove, the defendant replies and claims the general fishery under the grant to Thomas Cochran, James Cuchrari and William Cochran, and the deed to the plaintiff and Seabiirg respectively mentioned and set out in the replication to the first plea, to the third and fourth counts, and the possession of the plaintiff under that grant and deed, and under the lease and license of Seaburg. To these replications the plaintiff hath demurred generally. The question arising under these pleadings, for the decision of the Court, does not appear to me as involved in any difficulty. The plaintiff complains that the defendant broke and entered his close, covered rfith water, at Deep Cove harbor, and that he also broke and entered his general fishery at the same cove. The defendant says this cove is a navi- giible arm of the sea, which I had a right by law to enter, and therefore 1 am not, and can not be, a trespasser for doing that which the law permits. The plaintiff iloes not deny that this cove is a navigable arm of the sea, and there- fore the fact of the locus being an arm of the sea, stands admitted upon the record. It rests, therefore, with the plaintiff to show by what authority he claims to prevent the defendant from entering and fishing upon this navigable arm of the sea. He claims this right first, under the grant from the crown, which he has set out, and the possession, under it, of the land covered with water ; and, second, he claims under a possession of the cove as a general fishery for upwards of twenty years, without relying on the grant. Now, speaking of rights under documents, it is obvious all the rights of the plaintiff to this Deep Cove are derived from the grant of 1799 to the Messrs. Cochran. They could not convey to the plaintiff that which the grant did not give them. Without, therefore, entering into any discussion as to whether the crown could grant the land covered with th? waters of this arm of the sea, but assuming the grant good as to that, and that the plaintiff might maintain trespass for any injury done to thai, yet that question does not come uj) here. We are called on to say whether the grant in question convoyed to the Messrs. Cochran the waters of Deep Cove, being a navigable arm of the sea. There is no pretence for saying the crown could make any such grant. It might as well grant the air around the cove. These waters, fluctuating and in a covistant state of change, are lot the subject-matter of a grant. But then, says the plaintiff, we are entitled, under the grant and conveyances, to a fishery in this cove. Now, first, the crown could not grant a general fishery — a grant to support that must be as old as the reign of Henry II., and therefore beyond the time of legal memory, for, by Magna Charta. and the 100 MURDOCH V. GRANT. second and third charters of Henry III., the king is expressly precluded from making fresh grants. But, in fact, the crown has not. made such a grant. Now if the crown could not, and did not make such a grant, it follows, of course, that the Cochrans could not convey to the plaintiflF that which they had not. But the fact, even here, is against the plaintiff, for the conveyance Bet out in the replication does not pass a several fishery, which is an exclusive right. The language of the deed is " Together with the fishery and liberty of fishing commonly called Deep Cove fishery, therewith usually held and enjoyed." The plaintiff, therefore, has failed completely to show any exclu- sive right to the locus, and the language of Lord Hale is : "In the case of a river that flows and reflows, and is an arm of the sea, then, prima facie, it is common to all ; but if any will appropriate a privilege to himself, the proof lieth on his side ; for in the case of an action of trespass brought for fishing there, it is, prima facie, a good justification to say that the locus in quo is brachium maris in quo, unus quisque subjectus domini regis habet et habere debet liberam possessionem." But the plaintiff puts his right to maintain his action upon a ground totally disconnected with the grant and conveyances, namely, his uninterrupted exclusive use, possession and enjoyment of Deep Cove, for upwards of twenty years before action brought. Now, supposing this arm of the sea capable of being so possessed, this is the first time I ever heard that twenty years possession of an arm of the sea, would give a party a right of general fishery therein. A prescriptive right to a general fishery in a navigable river may certainly exist, but where we find that twenty years' possession is evidence of that prescriptive right, I know not. The replications, therefore, do not show any right in the plaintiff to the exclusive use of the waters of this arm of the sea, and consequently, are no answer to the pleas. The judgment, then, on the demurrer, must be for the defendant. Judgment for the defendant. MURDOCH V. GRANT. Where the defendant offered in evidence a record roll, in a previous action between the same parties, which had been filed only half an hour before it was so tendered in «yidence> held that the Judge was right in rejecting it. Hill, J. — In this action of trespass, qv/ire clavjumf regit, tried before me at Pictou, in October last, a verdict passed for the plaintiff. On the argu- ment of the rule to set this verdict aside, three grounds of objection have been taken : 1. The improper rejection of a record tendered in evidence. 2. That an award between theso parties touching the lines and boundaries of the locus was not conclusive ; and MURDOCH V. (J KANT. 101 3. That the plaintiff had purchased a title in dispute at the time of the purchase between the defendant and a third party, and therefore acquired no title. Now, as to the first of these objections. It appeared that the plaintiff and defendant owned adjoining lots, and that this action was brought for a tres- pass on plaintiff^s lot. Amongst other testimony to show the right of the plaintiff to the locus and the possession of it, he produced an arbitration bond between him and defendants, respecting the lines of their several lots, and an award under that bond, assigning the locus to plaintiff. To destroy the operations of this award, the defendant tendered in evidence the Record giv- ing rise to this objection. It was stated to be a record in an action brought by the plaintiff against the defendant, upon this bond and award, in which action an issue as to the certainty of this award was raised, and put to the Jury who tried the action, and that they found it uncertain. To the reception of this record the plaintiff objected, inasmuch as it was, in fact, no record. The truth on this point was derived from the Prothonotary of the Court, who stated that the record tendered had been put into his hands at the Prothonotary's table in Court, about half an hour before it was so ten- dered ; that it had never been filed or brought into his ofiice, but that he had been requested to mark it filed when it was given him, which he did ; and that he had never compared or examined it. Upon this I refused to admit the record, I may add that I took up this cause on Saturday, the 23d Oct,, at ten o'clock in the forenoon — was occupied in it the whole of that day — heard and refused a motion for a non-suit — and at six o'clock, having just finished the plaintiff's case, adjourned over until Monday the 25th, when the trial was resumed at ten o'clock, and continued throughout the day. At its close, this record was offered. If, instead of introducing this record collaterally, the defendant had pleaded it by way of estoppel to the action, or to the effect of the award, and there had been an issue of nid tiel record triable p?r recordum, or an issue aa to the existence of the record had been put, as a fact, to a Jury — then, I appre- hend, there can be no serious question raised as to this record being received, even though coining out of the hands of the proper officer, and from the regular repository, because a record having first existence on the 25th October, could not be evidence of one alleged in the plea to be remaining on record on the 25th June preceding — upon an issue joined in June, as to a release dated pre- viously, a release dated in October following, would surely be no evidence. If, therefore, it were a matter of pleading, there could be no difficulty. But it is not so. There is no precise issue on this record, either for the Court or a Jury : the question arises as it were incidentally and collaterally. Thin piece of testimony is now offered to prove a fa'. McDONALD. Ill If I occupy a field by my steward, agents or servants, and reap the fVuits of its produce, though I may never set my foot upon it, still the field is in my actual possession. I take it that the fields which surround the college in question, is in the actual possession of the governors of the institution, and that it will not bo disputed that they nuiy maintain trespass for any injury to them, and yet they are no more actually possessed by the governors than the tract at Iliver John. If it is necessary that all the governors bo actually resident upon the promises, then trespass can never bo brought by a corpo- ration, without showing title, and yet I should imagine that the possession would be rather untenable if we wero to say that every corporation must bo prepared at all times with their title deeds, before they could punish a tres- passer. In the case of an individual, most certainly there is abundant evidence of possession, for a poiioil of upwards of twenty years, by motes and bounds ; and why is not such a possession good in the case of a corporation ? I see neither reason nor case against it. ]3ut it is said that a corporation aggro- gate cannot act except by deed. It is true that it has generally been con- sidered that such a corporation cannot appoint a person to do any act in which their real property is concerned, or to which their rights arc to be assorted, except by deed — as an appointment to make or take livery of seizin, must bo by deed — nor can they appoint, xcept by deed, an agent to enter on land for condition brokiiii, though this has been doubted — but this is only applicable to cases where title is given or received. In 1 Salk. 191, in un anon, case. Lord Holt held that a corporation aggre- gate might appoint a bailiff to distrain without deed or warrant, as well as a cook or butler. But the (|uestion hero does not arise upon tho validity of the appointment, or what may bo lawfully done under it ; it is merely a question of fact. Had the plaintiffs, in fact, possession of these lands by their agents and servants, though irregularly or informally appointed? If tho agents acted under this informal power, and kept possession, in fact for the plaintiffs, that is 'all that is requisite. The plaintiffs themselves, or a private individual, might bo in under a defective or informal title, but that defect cannot alter the fact of possession. So hero. We are not inquiring as to tho validity of the appointment, but as to the possession itself If tho governors of this col- lege were conveying a part of their fields at Windsor, and it became necessary to appoint a person to give livery of seizin, this must be done by deed ; but if they were appointing a farmer to till their fields, and who was to account to them for tho profits, surely they need not appoint by deed. Without, therefore, I come to the conclusion that no corporati ^ ur.ii main- tain trespass unless it shows titlo — a proposition for which I find .10 warrant — I think abundant possession has been shown in tho plaintiffs; and, if this action cannot be maintained on such a possession as is hero proved, then they could maintain none against any trespasser who might bo bold enough to cut <^ '-i f fV 112 dOVEllNOllS OF KING'S COLLEGE v. McDONALD. down the fences surrounding thoir grounds, the ornamental trees thereon, or ovon the very liuildiriga themselves; for the lands at River John, as far as actual possession and occupation is concerned, arc as much occupied by the gather nors as those at Windsor. I urn, therefore, of opinion that the rule ought to be discharged. Uliss, J. — This was an action of trespass, quare claicsum /regit, tried before WUkins, J., at Pictou, in June, 1841, when a verdict was found for the plaintiff. A rulo nisi was obtained to set it aside, and the case was argued betbrc Hill, J„ and myself, in Michajlmas term. The plaintiff, in support of his case, gave in evidence a grant from the Crown of the locus in qno, to " The Governors, President and Follows of King's College, at Windsor, in the Province of Nova Scotia," dated 12th May, 1813. It was contended, on the part of the defendant, that the phiintiffs could derive no title under this grant, which appeared to be made to another corporation, and tliat, without it, there was no evidence to support the action. This is not a case in which there is any variance l)otwccn the true name of the corporation and that set out in the declaration, but the question is : whether a corporation whose name is " The Governors of King's College, of Nova Scotia," can claim under a grant made to the Governors, President and Fellows of King's College, at Windsor, in the Province of Nova Scotia." If we look at some of the old cases on this subject, I think it must be admitted that we should find abundant authority for depriving the plaintiffs of the benefit of this grant. The Courts were at one time astute in marking every variation between ti.c right names of a corporate body, and that which was inserted in grants or deeds made by or to them, which wore deemed fatal to the instrument, though manifestly against reason and justice, for thereby the corporation often defeated its own act. 10 Co., 120. It is no wonder, then, that it was at length discovered that too much importance had been attached to these curious and nice distinctions, and that it was said, in refer- ence to them, " Qicod apices juris, 7ion sunt jxira." A better principle was then adopted — rather revived — and then variances between the name of a corporation and that in the grant, were held to be immaterial, provided they agreed re ct scnsu, and were substantially the same. lb. 124. And yet with this rule, founded in good, sound sense, before them, the Court which had established it appear still to have found it difiicult to carry it out, accord- ing to its spirit. The learning of those days was imbued with a scholastic subtlety — and Judges of deep learning, and of most profound and logical powers of reasoning were, from that very quality of their minds, apt to indulge in over-refined arguments, drawn, not unfrequently, from technical niceties and labored distinctions. A less liberal spirit prevailed, too, in the decisions of those days, and some were given on this point, in which niisnom- .-.-.^ GOVERNORS OF KING'S COLLEGE „. McDONALD, 118 crs of a corporation were held to be fatal, which modern times, I am apt to think, would look upon a» merely verbal, and not at all touching the substance of its name. 6 Taunt, 479. The maxim : " Nihil fncit error nominis cum de corpore constat" is aa applicable to corporations as to individuals; and all that is to be regarded is, that there should be such a description that the person or the corporation can be ascertained with sufficient certainty. If the grant so designates it as to make it clearly apparent that the corporation in question was intended, though its name has not been accurately observed, the misprision will not avoid the grant. Gilb. Hist., C. P. 225. '• The names of corporations," says Chief Baron Gilbert, " are not arbitrary sounds, merely so individuative, but have a certain and significant meaning, and if that be kept to, though the words and syllables be varied, yet the body politic is well named, then there is enough said to show that thejre is such an artificial being, and to distinguish it from others." Nor is it merely by comparing the two names, that we are to ascertain whether they are re ac sensii — one and the same. This may be made to appear by extraneous matter. 10 Co., 725. 4. Thus, in a case cited as the Mayor v. Burgesses of Lynn, the Abbot of York was incorporated by this name : " Abbas monasterii beatae Maria Eboraum" an 1 a bond was made to the abbot by this name : " Abbati monasterii beatae Maries extra mums civitatis Eboraum." The abbot brought his action of debt by his true name, and in his declaration said the bond was made to the plaintiff, per nomen, &c., which implies an averment that the abbey was within York ; and the writ was awarded good, notwithstanding the variance, because, in truth and sub- stance, as appears by the averment dehors, all was one in effect. The bond was good, and yet the name on the bond doth not import of itself the true name of the corporation, without averment dehors ; *' And therefore," adds Lord Coke, *' in pleading, or in a special verdict in many cases, if, by express averment or by finding of the Jury, it shflll he made apparent to the Court that the true name of the incorporation and the name in the lease, grant, &c., are all one in effect, it will much enforce the matter, although, in words, there is some seeming difference." With these guides, then, let us consider the case before us. The grant is to the " Governors, President and Fellows of King's College, at Windsor, in the Province of Nova Scotia." The plaintiffs are the " Governors of King's College in Nova Scotia," but that college is also at Windsor, for the Act by which they are incorporated was passed for the support of a *' College at Windsor." 1 vol., pp. 268. (17S9.) They agree then, accurately, in the character and design of the corporation, as well as in its locality : Is not this the substance — the all-important matter in the description — by which it may be best designated and known ? Can the mis-description in the name occasion any uncertainty ? The only verbal difference that remains in the name itself, is that the " President and Fellotm " are introduced in the grant. 15 ■? ' T;? 1 '^ i ii \ J »ll f T tt"^ i " ^ » 1 \i r it 1 P-7J "1 ,2 ^ ii ■ 'f ' ifl 1 1 114 GOVERNORS OF KING'S COLLEGE v. McDONALD. iyi- In 1 1 Co., 18, it was held that the addition of this very word Fellows, (SocUr) was not material : " For, notwithstanding the addition, the college is certainly en. ugh described that it may be distinguished from every other." There ist then, no reason why the insertion of the word " President " should not be equally harmless, especially when it appears that the president is actually one of the governors. T.ie grant is made, expressly, " To and for the use of the said college," i. e., King's College, at Windsor. The plaintiffs are that same college, incor- porated under their name; they, alone, claim these lands — have exercised acts of ownership ou it — they, too, are in possession of the grant itself. Are wo, then, without any evidence, in such a case, to suppose thut there are two King's Colleges at Windsor— two incorporations of the name kind — two institutions in the sauje place, with almost the same names ? The natural presumption would be all the other way, and so is the legal. And it is for the other side, according to Lord Coke, to show that fact which would deprive an actually existing eorporation of the benefit of the grant. 10 Co., 126. lie says ; " That it is reasonable to drive him who would avoid a writing, demise, grant, &c., made by a corporation or to it, by reason of any verbal or literal misnomer, to show that there are two corporations in the same city, borough or town, &c., one by the true name, and another by such name as is contained in the deed, and so leave the deed good by or to one of them." In the present case no such evidence was offered by the defendant, but, on the contrary, the plaintiffs have given us evidence on this point themselves, and shown that there is no college of the name but the one in the Province. It appears to me, therefore, clear that the design of the grant being to give to the collegiate corporation at Windsor — and the plaintiffs most fully answering that description in substance and effect, and almost in the name used iu the grant, while there is no other corporation to whom it can apply — they must have been intended to take by it, and "'i)l do so, or the g'ant will be inope- rative. 8 Co., 167. And " When a grant of the king can be taken to only one intent of effect and good, and to another of no intent and void, it shall be taken and construed according to such intent that the grant shall take effect ; and this, in judgment of law, stands with the intent of the king, for it was not the intent of the king to make a void grant. ' 17 Vin., 152. I have given my opinion on this point, because it was that on which the argument chiefly turned ; but I am also of opinion that the verdict is fully sustained by the evidence of a possession independently of the grant. It is now -.nuecessary to go further into this subject, but, without referring to the particulars, I may say that a stronger case of possession to support trespass, could not well be made out. The rule to set aside the verdict must, therefore, be discharged. i^---: EASTER TERM— 1843. RICHARD SCOTT v. JAMES HENDERSON. When a person is in possession of Crown land, the Crown cannot grant the land so oofiupied to another, without first ejecting the occupant. Bliss, J., and Hill, J., dissenting. Halliburton, C. J. — This was an action of tre.spass, quare clausumf regit, for breaking and entering plaintiff's close, and taking and carrying away stones, tried before me at Amherst, in June, 1842, in which verdict passed for the plaintiff. A rule nisi to set that verdict aside was granted on motion of Mr. Stewart, for defendant, upon several grounds : 1. That plaintiff did not prove the abuttals as he set them out, or any trespass within them. 2. Misdirection in stating to the Jury that if the proof established that at the time the grant passed to defendant, (under which he claimed to own the locus}, the plaintiff was in the actual and exclusive possession of the land in ques^tion, the Crown could not grant it until it had removed the plaintiff, and, therefore, the defendant could not justify the trespasses under that grant. 8. No proof of the "boundaries of the plaintiff's grant, under which he olalmed. 4. Misdirection i« telling the Jury that if they were not able to decide, under the proof, whether the line claimed by the plaintiff or defendant was the true line, they must find for the plaintiff, for, as he had quarried the stones which defendant took and carried away, it was incumbent upon the defendant to show by what right he did so. 5. Discovery of new evidence. The question has been mainly argued upon the 2nd g-round, which has called upon the Court to reconsider a position which has been held to be sound law, in this Province, for nearly half a century. If, however, it can now be shown that that position is no longer tenable — that it is not supported by law, and is an infringement of the prerogatives of the Crown, it beco mes our duty to abandon it. It will not, I suppose, be disputed that, if the king has the power to grant lands in the adverse possession of another, it must be by virtue of his prero- gative, for, between subject and subject, the law is certainly otherwise. A student who has read no further than Blackstone's Com., must have learnt this, for, in vol. 4, p. 185, that admirable commentator upon the laws of % I 116 RICHARD SCOTT v. JAMKS HENDERSON. I Englund, states " That the purchasing of a suit or right of suing (Champerty) is a practice so much abhored by our law, that it is one main reason why a chose in action on a thing, of which one hath the right, but not the possession* is not assignable at common law, becuuso no man should purchase any pre- Xence to sue in another's , right ; ' and, in Coko upon Littleton, ("J 847, p. 214), " It is said nothing in action, entrie or reentrie, can be granted over, for so, under cover thereof, pretended titles might be granted to groat men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth, ' As men, to grant before th'y be in possession.' " This offence (Champerty) was punishable at common law, and the 32nd Hen. VIII, ch. 9, after reciting the great evils which arise from buying of titles and pretended rights of persons not being in possession, prohibited the sale of any lands of which the seller had not been in possession for one year before the sales, and punished both the buyer and seller by a forfeiture of the whole value of the lane's so bought and sold. This being the state both of the common and statute law, we must now turn to the prerogative, and inquire whether the Crown is exempted from the operation of a principle which it was deemed so requisite to uphold between subject and subject. In doing this I shall endeavor to ascertain : 1. Whether there is any positive rule of common law which exempts the Crown from the operation of this principle. 2. Whether there is any statute to that effect. 3. Whether, from its analogy to other prerogatives, it might be deemed an inherent right to the Crown. Upon the 1st point it is a position laid down by all the sages of our law, that the king can not be disseized ; that what would amount to a disseizin between subject and subject, shall not be so rendered in the case of the Crown, to whom no laches shall be attributed. That the party who would gain a possession against a diseizee, and a (ee simple against all others by the Act of Deseizee, shall, in the case of the Crown, be deemed a mere intruder who can gain no rights against the Crown by any length of possession under the common law, nor, as it was formerly held, could he maintain trespass against any stranger who interfered with his possession ; but this latter position has been somewhat shaken by the obser- vations of Bayley, J., in Harper v. Charlesworth. 4 B. & C, 586-7. But are we to infer that, because the Crown can not be disseized, and that he who would gain certain rights against a subject by taking possession of his land, can gain no such rights against the Crown, but is a mere intruder ; that the Crown, while such intrusion subsists, so that the intruder is, in point of fact, in possession — can grant the land over to another ? I think not, for two reasons : ' RICHARD SCOTT v. JAMES HENDERSON. ii: 1. Because it would sanction the commission of an act, on the part of the Crown, which is deemed inimical both by the common and statute law, on the part of the subject. 2. Because the law has provided an ample remedy against the intruder by. an information of intrusion, under which the offender can be both punished for his intrusion, and removed from the possession. It is said by Tindal, C. J., in delivering the opinion of the Court in the case of Watt v. Morris, (2 Bingh. N. C, 197,) " It may be doubtful whether the general expression that the king can neoer be put out nf possession by the wrongful entry of a subject, did, at any time, intend more than that the remedies given by law to the king for such a wrong, were remedies which supposed him to be still remaining in possession — such as an information of intrusion, which waa in the nature of an action of trespass, quare clausum fregit, or the right to charge the trespassers in action as his bailiffs for the profit of the premises of which the possession was so wrongfully taken. At all events, however, giving the fullest extent to that common law principle, since the statutes 21 Jac. 1, ch. 14, and 9 Geo. 3, ch. 16, it seems impossible to contend that there may not be an adverse possession to the Crown in point of fact, whatever may be its construction in point of law ; for the former statute begins by providing a remedy wherever the king hath been out of possession for the space of twenty years, which, he subsequently says : " Is a legislative admission that tliere may be an adverse possession in fact against the Crown — however, in point of law, with respect to the nature of the remedy, the possession may still be considered as in the king." The same learned Judge, in giving judgment in this case, recites the 2nd ■^ of the 57 Geo. 3, ch. 97, which authorised commissioners to contract and agree with any persons for the sale of any part or parts of the possessions or land revenues of the Crown which shall, in the judgment of the commission- ers, be desirable to be sold ; and, notwithstanding the act says that the purchaser shall hold the lands so sold in as full and ample a manner as the Crown held them, Chief-Justice Tindal says : • " We think it is only neces- sary to read the clause to be able to see that there is nothing contained in it which points, in the most remote way, to the giving the commissioners any authority or power to sell to the subject a right of recovering the possession of wastes or any property whereof the Crown was not in possession in fact, although, in contemplation of law, it might be deemed to be so for some purposes — whether such recovery was to ba effected by bringing a writ of intrusion, or by the finding of an office, or by any other prerogative process whatever." It is evident that the learned Judge who used this language deemed that the legal adage " That the king is not dissnzed by an actual, adverse, 1 318 RICHAKD S(^OTT v. JAMES HENDERSON. m:i K^hJ:' irrongful occupation of his land" could not change the very nature of things; that a party who hud so possessed himself of tiie king's land was, in fact, in possession of it, and that the law only considered the legal possession to be still in the king, in respect to the nature of the remedy which it afforded to him to remove the wrongful possessor. That remedy, it appears to inc, he confines to some prerogative process — under which term a grant to a stranger certainly can not be included. An information for intrusion is the usual process by which the Crown seeks a remedy for this wrong, and it is a remedy so simple and so powerful that I fear it might become very dangerous to recognize a right in the Crown to convey it, directly or indirectly, to a subject — for it is laid down in 7 Coniyn, 81, Prerogative D, 74, that at common law, upon an information of intrusion, the king, by his prerogative, might put the defendant upon showing his title specially, and, if he pleaded not guilty, he should be immediately put out of possession. This prerogative is founded upon the maxim that all the lands in the realm were originally in the Crown, and the law therefore acknowledges the king's right to call upon his subjects to show under what title they claim to hold that which was formerly his. So long as the exercise of this power is confined to the Crown, little danger is to be apprehended from it, because, even in cases where a strict legal title could not be shown, if the possessor showed a reasonable equitable claim, it is to bo supposed that the king, as parens patriae, and the fountain of justice, would, in such case, rather confirm than disturb the possession of his subject; but, if he can convey a right to any subject by granting to him land of which another subject is then in possession, to show by what right he held his land, the consequences would be very different. The justice or the kind indulgence of the king as parens patricB, could no longer be appealed to. The grant, if upheld, conveyed all the estate of the Crown as grantee — individual interests would urge him on to assert his strict legal rights — and if, without showing the prior title of the Crown, the grant is to be sustained upon the maxim before mentioned, that the Crown was once the owner of all the lands in the realm, then every man whose title was not armed at all points, might be turned out of possession, and he who was, would be subjected to harassing and vexatious litigation. Intrusion • ■■■. the king's demesne is called a purpresture by Blackstone — 4 Com., 167 • ! Coke Litt., 277-9, for which Glanville is cited, where the offence is detitied and the remedy laid down — Lib. 9, ch. 11 : " Dicitur auttm perprastfira propri quando aliquid super dominum regent injuste occupatur." After describing the several kinds of purprcstures which may be committed, he says : " Placitum hide ad coronam, domini regis pertinet. Inquiruntur aulem hujusmodi purpresturee eel in capitali curia vel coram justiciis regis, ad tales inquisitiones faciendas, in diversas regni partes trammissis per jdratam patria sine viceniti." KIOHARD SCOTT v. JAMK8 HENDERSON. 119 It thus appears that as early as the days of Glanville, intrusions lipon the king's demesnes were not considered us trivial matters which could be dis- posed of in the summary manner now contended tor, but were grave subjects to be inquired of by the country. And in the case of the Attorney General v. Richards, 2 Anstruther 606, which was an information for intrusion by the erection of wharves upon a beach near Gosport, tried in 1795, Sir John Scott, afterwards Lord Eldon, said " all nuisances maybe abated by the mere act of any individual ; but in the case of the Crown, the more proper and decorous mode of proceeding is by information in a Court of Justice, to ascertain the right ;" he adds, " In the case of a purpresture the same mode of proceeding has been held proper. In case of a decree for the Crown, an inquiry is directed, whether it be most beneficial for the Crown to abate the purpresture or to suflFer the erections to remain and be arrented." This was the language of that great iiiun, when he was advocating the rights of the Crown ; and it is in accordance with the principles for which our ancestors contended in by-gone days. In the Charta Forrestae obtained from Henry III. it is said in ch. 4th " Those that from henceforth do make purpresture without our license shall answer unto us for the same." In answering to the Crown the subject may feel secure that he will not be harshly dealt with. But he would be deprived of that security, if the Crown can transfer to another the right to call him to account for an intrusion, or to oust him of his possession by the mere production of a grant without shewing any prior title in the Crown. When I first heard that tlr^ position that the king cannot grant land of which another is in the adverse possession, which has so long been recognized to be law in this Court, was to be assailed, I did expect from the known talents and industry of the learned gentleman who disputed it, to be referred by him to some decided case or some express principle laid down by some of our sages of acknowledged authority, in support of the contrary doctrine. The only one to which he has referred us, that has that bearing, is to be found in 2 Bacon Ab. 331, under the title disseizin. It is there said, " If the king be seized in fee of the manor of B. and a stranger erects a shop in a vacant place of it, and take the profits of it, without paying any rent to the king, and after the king grant over the manor in fee, and the stranger continue in the shop, and occupy it 3 before, this is no disseizin, for the first entry of the stranger was no disseizin, but an intrusion on the king's possession. If, then, the king is not disseized, his conveyance of the freehold is good, and the grantee is seized by virtue of it, and consequently cannot be said to be disseized by the stranger, who has made no entry upon him after the king's conveyance, but only continued the old interest which he had before the grant, and so remains an intruder f)till, and liable to an action of trespass or ejectment for it." i 120 lllCHARU ddOrr V. JAMES HENDERSON. [n .support of this position Bucon cites Hollo's Ab. G59, Hobart, B22, Bro. Disseizon, 4, none of which authorities go further than the ackqow- ledgement of the undiHputed principle — that the king cannot be disseized. Bolle cites the case of Adams v. Lambert, 4 Co. 103, where the ques- tion turned upon whether the lands in dispute had vested in the Crown under the 1 Edward VI. ch. 14, which forfeited all lands appropriated to superstitious purposes. The question wh<^thcr the lands had been so appropriated was elaborately argued. The Court decided that they had been so appropriated — that they were therefore forfeited and had vested in the Crown. It cannot be disputed that it is evident from the special verdict that the defendant was in possession when the grant to the lessors of the plaintiff passed : but it must be recollected that the act says, " that such lands shall be in the actual and real possession of the king in as large and ample a form as any incumbent of them within five years had occupied or enjoyed the same If the Crown, then, under the act, was held to be in the actual and real possessioa of the land, in as full and ample a munnur as any posses.sor for the five prior years had been — the possession of the Crown and its consequent right to grant, cannot be questioned ; it was a case under that act, and not at common law. It is worthy of remark, however, that in forfeitures under 33 Henry VIII, ch. 20, where the words are that the forfeited lands shall be in the actual and real possession of the king, without office, but does not add, as the act of 1st Edward VI. does, in as full and ample a manner as they had been possessed for the five preceding years ; that Buller, J"., in the case of Ogden v. Folliot — 3 T. R., 734 — stated his opinion that a seizure of the lands by the Crown was still necessary, and that the effect of the act was only to avoid the necessity of an office. In support of this opinion he cites Stone v. Newman, Cro. Car., 427-460, where, in answer to an exception taken to the pleadings that no service was alleged in the queen, it was answered, "That the queen, being entitled by the general Act of Parliament, and also by a special Act of Attainder — 1 & 2, P. & M. — the land was in the queen without office ; that the queen granted it and the grantee entered and was seized until P. F. Wyatt entered, and so the grantee had the prior possession." Mr. Justice Buller observes, upon this : " It was so material in that case, (in order to sustain the grant,) to give an answer to the objection (of want of seizin,) that the Court answered it by the fact of the case, namely, that there was an actual seizure." So in Dontie's case, 3 Co. 11, it was resolved that, although by 33d Henry VIII the king should be in actual possession without any office, those words shall be construed that the king shall be in possession as if an office had been found ; but possession shall not be in the king, under the act, where a stranger is in possession, because, when a stranger is seized at the time of the office formed, the king shall not bo in possession till seizure. RICHARD SCOrr c. JAMKS HENDERSON. 121 If, then, in a case where the Act expressly says that the forfeited hinds fehall be in the actual and real possession of the Crown, an exception to the Crown's right to grant before seizure could not only be entertained, but, in the language of Mr. Justice Bulltr, was conhidered as so material that it was necessary to answer it by showing an actual seizure — does it not follow that the law does not recognize the right of the Crown to grant land that it does not possess, and that this grant was upheld on the ground that there was no adverse plena possessio at the time that it passed, and therefore the grantee could and did enter and take possession ? There is, however, a case in Dyer referred to by Brooke, {Dyer 9 and 10 Eliz. 266), which is stronger than that of Adams v. Lambert, and it is probably the foundation of the assertion in Bacon, although it is not exactly as he puts it. It is thus : " The king is seized of the manor of Beverly iu right of the Crown ; a stranger erects a shop in a vacant plot of the manor, and takes the profits without paying any rent to the king ; then the king grants the manor in fee to the Earl of Leicester, and he made no entry on the shop or received any rent for it, and afterwards the occupant of the shop died and his son entered. The question was, whether the son was in by descent or not. W/iidden, Saunders, Dyer and Catlin, thought there was no descent, but Manwond and Wray, Serjeants, thought otherwise." It is very probable that this question may have arisen in an action of ejectment brought by the Earl of Leicester against the son, although the reporter does not tell us so. Be that as it may, it does not appear that the right of the Crown to make the grant was mooted, as the son seems to have rested his defence upon the descent cast, which would have barred the entry. If that right was brought in question and upheld, it appears to me that a different decision would have been made in the present day, for this is precisely the case of the lessee of Watt v. Morris, before referred to, chang- ing only the name of the manor of Tweed for the manor of Beverly, and there the grant of the manor was held not to convey waste lands (stated in the case to be part of that manor), of which another was in the actual occu- pation at the time. It is true that in Watt v Morris, the Court lay stress upon the benefit which accrued to the occupants, who had been twenty-three years in posses- sion, from the 21 Jact., ch. 14, which passed subsequent to the decision in Dyer ; but if the Crown had the right to make grants of what was in the adverse possession of another before that statute, I can see nothing in the language of that act that would divest it of that right. The only difference it would make would be that the grant alone would not be sufficient to sustain the claim of the grantee ; he would be bound to show the king's title against an occupant of upwards of twenty years' standing, and such occupant would retain the possession until that title was established. Independent of this, I do not think that the language of Chief -Justice Tindal conveys any idea that 16 1 - -*- 1 WOT 122 lUCIIAllD SCOTT V. JAiMES IlENDEllSON. 4, i-; ■...■ 1' he moiuit to confine bis obHervations to adverse possessions of upwards of twenty years, for it was in alluding to the argument which the Counsel had based upon the legal position that the Oown cainutt be put out of possession by the wrongful entry of a subject, upon which jtosition they contended that, notwithstanding the actual enclosure of part of the waste, the king, at the time of making the contract, was as fully in possession of that part enclosed, as he was of that part unenclosed. It was, I say, in alluding to this argu- ment that the Chief-Justice made the observations I have already cited : " That he doubted whether this position at any time intended more than that the renK'die,< given by the law to the kin<:j were remedies which supposed him to be still remaining in possession, such as an information in intrusion, &c." Ijanguagc such as this, used in such a case, impresses my mind with the con- viction that that learned .fudge did not recognise the right of the Crown to grant lands of which the adverse possession was, in point of fact, in another, whether that possession had been held for a greater or a less period than twenty years. Mr. Stewart did also cite an American case — Ward v. Barthulotneiv, G Pickg. 415, in which the Court say : " The general principle is that a person held out of possession can not pass a title, as it would tend to excite law suits : but we have always understood that this principle does not apply to the Government ;" no authority, however, is shown to establish this exemption, except an observation that " The very circumstance that in England and New-York statutes have been passed to limit the right of the public, show it." I have not seen the New-York statutes, but I can not understand how the 2lst Jact., oh. 14, can be so interpreted. It merely restricts the royul prerogative in actions of intrusion, and allows the subject to plead the general issue, where the king has been twenty years out of possession. No allusion whatever is made to any power to grant within that period. I entertain a high res[>ect for the opinions of the learned Judges in Massachusetts, but I should like to know upon what ground they understood this, before I bow to their authority on this occasion. In deciding another point in this ease, they cite the authority of Chitty Saunders and his com- mentator Serjeant Williams ; but this important objection is passed over with the simple observation, that " We have understood the principle does not apply to the Government." Having thus tailed to discover any rule of the common law which exempts the Crown from the general principle that a party cannot convey land that is out of his possession, I will now inquire whether there is any statute to that effect. After a search of some diligence, I have met with none such. Statutes there arc, like those to which I have before adverted, which say that upon forfeitures incurred the king shall be in the actual and real possession of the ibrfcited lands, without office ; bu* as has been seen, even in such cases it has been held that an actual seizin is necessary to enable the Crown to grant. UIOIIAUD SOOTT r. .lAMVS HENDERSON. 128 The statute law, on the contrary, is against such exemption. The 32n(lof Hon. VIII, ch. 9, before cited, condemns the buying of titles and pretended rights of persons not being in possession, in the strongest language, as greatly hindering the quietness, rest, peace and good concord of his majesty's loving .^uhjeets; and can it ho. .supposed the Orown would retain the power (or knowingly exercise it) to do what it so strongly condomns as mischievous. Fn Wdis'j7i V. Berkdy, Plow. 248, Brown, J. says, in sjicuking of the act do Donis : " It is a difficult argument to p"ove tliat a statute which restrains men generally from doing wrong, leaves the king at liberty to do wrong. And as to what has been said that the king shall not be restrained by the act unles-s ho is specially named in the act, if I should bo inclined to admit the law to be so, yet here he is named, for the act says : ' Wherefore the lord the king, perceiving hov) nerexsary and useful it is to provide a re7nedy in the casfs aforesaid, hath ordained that the will of the giver shall, from hence- forth, be observed ;' so that the king is named, and effectually named, as one that perceiveth the mischief, and saw that it was necessary and profitable to provide a remedy, and therefore he ordained a remedy, and when he ordained a remedy for the mischief, it is not to be presumed that he intended to be at liberty to do mischief." This language is just as applicable to the 32 Henry VIII, as it was to the statute de Donis, which was held in Wellson v. Berkely. to extend to the king. The preamble of the 32nd Henry VIII, runs thus: "The king our sovereign lord, calling to his most blessed remembrance that there is nothing that conserveth his loving subjects in more (juietness, rest, and peace and good concord, than the due and just ministration of the laws, &c., which his most royal majesty perceives to be greatly burdened by maintenance, &c., buying of titles and pretended rights of persons not in possession, for the avoiding of which," &c. Now, in the language of Brown, J., it cannot be presumed that the king intended to be at liberty te do the mischief he thus characterizes. Of course it is not even surmised that the penal clauses in the act extended to the (]rown, but it cannot be supposed that the king would claim the reser- vation of a right to convey lands of which he was not in possession, when he so strongly condemns such a practice in his subjects. If it is suggested that such practice would be less liable to mischief in the Crown than in the subject, I would say, in answer, that it would be more so. The prerogative of the Crown, that it cannot be disseized, and various other prerogatives, are conferred upon it on the ground that the king is so much engaged in his public duties that he has not the leisure which his subjects have, to attend to his personal concerns, and therefore no laches shall be attributed to him. He is, on that account, more liable to be imposed upon by the misrepre- sentations of artful applicants, and might make a grant which he would not M ill 1 MM "!- 1^^ ■!i rSh J B^m |! 1^ ' 1 jjSSj 1 t^ ^N \1 #i r ^^1 i^m ;j im 124 RIOHAKl) SCOTT r. JAAIKS HENDERSON. 'j ; ( have made had ho been aware that it would operate injurioHsly to another of his s'l.bjcctH. How niuiiy cases have conic under our consideration in this Court, in which, had it not been for the principle which \n now assailed, manifest injustice would have been done ! Indeiid, in the very case now before us, I feel convinced that if the Crown had been aware of the facts which appeared in evidence on the trial, it would never have made a grant which would have given any color to the defendant to disturb the plaintiff. As it respects the Crown being bound by acts of Parliament in which it is not expresiily named (as, according to the view of Brown, J., it must bo by the 32nd Henry VIII,) we may also refer to the case of ecclesiastical persons in Co., 15. where it was decided in the high court of Parliament that the l.'Jth Eliz., ch. 10, disabling ecclesiastical persons from making leases, gifts, grants, &c., in any other form than that statute prescribed, prevented the Crown (although not named) from taking any such lease, &c., and there it said : " Although the queen, by the common law, hath ability to take, yet, for as much as the Parliament hath disabled them (the ecclesiastics) to make estates, the estates made to the queen, against the act, are void." If this principle is applied to the 82nd Henry VIII., the converse of it would be that if the king, by his prerogative, hath ability to grant, the grantee, by the act, is disabled from taking. It is also said, in the same case : •' In divers cases the king is bound by act of Parliament, although he be not named in it, or bound by express words ; and, therefore, all statutes that are made to suppress wrong or to take away fraud, or to prevent the decay of religion, shall bind the king, although he be not named." The report of this case closes with these words : " The king, being the head of the commonwealth, cannot be an instrument to defeat the purview of an act of Parliament made pro bono publico. In the case of Magdalen College, 11th Co., 72, the same svatute (13th Eliz.,) was again held to bind the Crown, though not named, and the reason given is : " That the king shall not be exempted by construction of law out of the general words of acts made to suppress wrong." Both common law and statute law therefore, are, in my apprehension, against any exemption of the Crown from the general principle that no man can grant or convey land of which another has the adverse possession. Upon the third point — whether from its analogy to other prerogatives it must be deemed an inherent right in the Crown — it may be urged that, as the Crown could always assign a chose in action which, formerly, the subject could not, it can, upon the same principle, grant lands to which it has the right, but not the possession. If we were to admit, in opposition to all that has been urged, that, by virtue of the king's prerogative to assign a chose in action, he may grant land not in his actual possession — the reply is : that such assignment must be specially made, as of a chose ht action. It is laid down in Ford ^ Sheldon's case, 12 Co., 2, " Inasmuch as by the law things lllDirAlU) aCOTT V. JAMK8 IIKNDKIISON. 12.- in action cannot ho granted over, for that roason, hy tho king'n jfcnoriil grant, things in action (whicli only he may grant hy his prerogative!) without nponial words, pass not — for what he can grant only by his proro<;ative, can never pass hyj^oneral words." See, also, 17 Vainer, Prerogative M. 6, 17. — Note. — The king may grant action after ho has cause of action, as df debt and things certain, but not of trespass and things uncertain. It was said for law that the king may grant a chose in action whicli is personal, as debt and damage, &c., or a chose mixed, as the ward of the body, but not a chose real, na action of lands, rights, entrees, actions, &c. The king may grant a chose in action, but not without special words. The king, therefore, by tho usual and ordinary grant, to which the language excepted to in the charge is applicable, cannot grant land in the adverse possession of another, even if, as a chose in action, he could specially assign it. But when we turn to the numerous cases in which, where tho right of the Crown to the land has been established or is undisputed, the Crown cannot grant until it has reduced the right to possession, we shall find all analogy against the exemption claimed. In 16 Viner, 79, we find thf>t : " By the common law, where the land belonged to nobody, the king's ofiicers might enter, because, by the law, the land is in the Crown — for the law entitles the king, where the property is in no man ; but if anybody else is in possession the land cannot be divested without matter of record." In the same book, 83 : " If tho king grants for lifo.and, after, the patentee dies, yet the king cannot grant it over till the death be found by ofiice, and this hy statute 18th, Henry VI." So in Dontie's case, before cited : " When a stranger is seized at the time of the otRce found, the king shall not be in [ios.se.ssion till seizure ;" and in that case it was decided that tho queen, having but a right which she had not reduced to possession, that right did not pass by her grant. rio in the Sadlers' case : " When the king's tenant dies in possession, without heir, so that, in that case, possessio est vacua, and in nobody, the law will adjudge the king (in whom no laches shall he reckoned,) in actual possession immediately ; but when another is in possession and seizin at the time, so that pnssessio pleria est et wm vacua — there the king shall not be adjudged in possession till this seizin and possession is removed." But all this, we are told, applies only to those cases where it i.s evident that the king had previously parted with his title, and is claiming to come in under a new right ; but it is not applicable to intruders upon land, to which it does not appear that the king has ever parted with his title. I should like to hear some sound reason for this distinction. I think it is contrary to the maxim that " ubi eadem est ratio, eadem est lex." If I am told that it is founded upon the doctrine that the king can neither part with \ It '■ li V: i ,;:i I ;^ I2rt UICHARI) S(X)TT v. JAMEri HENDEKSOiS. nor take anything but by matter of record, I would ask why, then, his rights are so nuich ufi'ectcd by the facts, not of record, of 7;Ze?ia or vacua possessio. it his tenant dies in possesblju without heir, he is at once adjudged in posses- .sion if, in point of fact, not record — possessio est vactia — but if the fact be otherwise, and possessio est plena, then even an office establishing his title does not perfect it until he has proceeded to recover the possession. And why is> this strictness? It is because ihe possession of no man shall be dJHturbod by the (!rown, without giving the party an opportunity of defending it. The principle ]ai In, ■ .f\ ii? i i 1^8 iUUHAilD SOOTT v. JAMES HENDERSON. MK he c iuld exempt him from the protection of the general rule that the Crown cannot grant land which is in the adverse possession of another. I have arrived at this couclu.sion without reference to the statutes 8th and 18th Hc'ijry VI. not that I eonour in tiie Ufisertioii that those statutes have no bearing upon any cases but those in which escheats were necessary to establish a new title in the Crown. I conceive that they were both passed to protect the possessors of land, and to prevent those possessors from being interfered with by other?, until they had an opportunity of bringing their claimfi under the consideration of the Crown. The first entcted that no lands or tenements seized into the hands of the king upon inquests taken before escheaters, should be let or granted to faini, until a month after the return of the inquest, for the express purpose of enabling those who felt thorns ilves aggrieved by the escheat, to come into Chancery with their res- pective cases. But this provision was found insufficient to protect posses- sors against tho cupidity of divers subtile persons, who sued to obtain grants before any inquisition or title found for the king, pretending that such grants were not prohibited by the statute; to remedy which the 18th Henry VI. ch. 6, prohibited the making of any such grant before inquisition of the king's title be found and return thereof made one month before the issuing such grant, unless the king's title of the land so granted be found of record. And this title of record, be it remembered must be of his particular title to the particular land he undertakes to grant : not merely :ounded upon the fiction, as Sir Martin Wright, in his tenures, terms it, that the king was once the owner of all the lands in England. The claim for this exemption, therefore, is not only not supported, but is defea;ed by the analogous cabcs in England. If in that country the Crown cannot grant, even where its title is found by office, if there is a plena pass- essio against it, surely the mere presumption of the Crown's title, arising from it having cce owned all the lands in the Province, which it has long ceased to do, ought not to empower it to grant here, where there is an adverse possession held against it. If such grant would be void in one case, so ought it to be in the other. The utmost that could be urged in behalf of the Crown would be, thau it might have a possession in law, which it could not make a possession in deed by a grant, because the 18th Hen. VI. is to the let thereof. (12 East. 112.) Ch. J. Tindal has referred to the 10 Geo. IV. to shew the clemency and tenderness of the Crown towards intruders on the Crown lands in England. Our Provincial statute 3rd Vic, ch. 12, displays similar feelings in a great degree, for it declares that it is just and proper that those subjects of Her Majesty who have gone into possession of lands belonging to the Crown, and improved the same, should be enabled to acquire a title to such lands, on paying a reasonable purchase money therefor. " This statute passed long since the defendant obtained his grant. I only alluded to it to show that RICHARD SCOTT v. JAMES HENDERSON. 129 intruders, or ' squatters,' as they are sometimes contemptuously called, are not deemed such outlaws as some would have us suppose." For these reasons, I am of opinion that the Jury were not. misdirected when they were told that : " If, at the time that the grant to the defendant passed, the plaintiiF was in the actual and exclusive possession of the land which the defendant claimed under that grant, the Crown could not grant it until it had removed the plaintiflF, and therefore the defendant could not justify the trespasses under that grant." Having thus given my opinion upon the second ground, the importance of which must be my apology for the time I have consumed, I proceed to the others. As to the first, that the plaintiff did not prove the a'luttals or a trespass within them, it appears to me that the proof was sufficient upon both points. Theobject o •• t.'irjout abuttals either in a declaration or a new assign- ment, is to coii(n)^ ^1 oth of the trespass within the bounds set out. To do this the plaintiif must certainly prove that thpre is a piece of land bounded as desc :ibed in the pleadings, and that a trespass has been therein committed ; but I do iJOt think it is necessary for him to show that a surveyor has run all around it. McNab's testimony showed that the lines he traced from the lower quarry, would include the place from whence the stones were taken, within the bounds claimed by plaintiff under the grant to McKenzie, conveyed to him by the Smitfis. This place is within the abuttals set out in the plead- ings, and, although McNab did not run all round the lot, yet he described the abuttals with sufficient accuracy to satisfy the Jury that the locus was within them. As to the third objection, that the plaintiff gave no proof o^ the boundaries of the grant under which he claniod, i should say that almost the whole of the proof was directed lo it. ^,W-u\^l■■.£ it was sufficient to establish that the bounds should begin at the lo.'fcj; '.lu r:; y or not — upon which the whole case turned — was for the Jury to decide, aid it was left quite open to them. As to the misdirection upon the fourth ground : In telling the Jury " That if they were not ablu to decide upon the proof whether the line claineJ by the plaintiff or defendant was the true linn, they must find for the plaintiff : for, as he had quarried the stones which the defendant took uway, it was incumbent upon the defendant to show by what right he did so." I am at a loss to dii cover upon what this objection is founded. It iva& proved beyond al ^nvht that these stones were quarried by the plaintiff with'v a lot of lanU «. , .'i ''"' clMJied a right to possess, from which place the m'^' dant removed .", n and sold them for his own benefit. Ho (defendant) cl airbed the right to do so upon the ground that the locus was hia, an'ji ^v.fi Jury were told that if he established that fact to their satis- ffxtiuu, tho : 'lict should be in his (defendant's) favor. The verdict, how- fver, wan iigainst him.; and we must, of course, Infer that he did not satisfy 17 iffn. ■— rr. 130 IIIOHARD SCOTT v. JAMES HENDERSON. them upon that point. I concur entirely upon the propriety of this verdict upon the very ground on which we decided to set a>side the verdict in the case of the Lessee of Reindress v Henderson. That was cjoctnieiit. JJy bringing that action the plaintiff' admitted the defendant to be in possession, :i:id it was therefore incumbent on him to prove that he had a right to turn hiui oui ot possession. The Court decided that he could not do this by sliowing that many other persons held lands under the grant which he claimed, and il the base line by which they held was continued to his lot, in the course which it ran by the grant, it would give the land in dispute to him. We thought that, before he could disturb the possession ot the defendant, he must show that that was the true base line, by beginning at the bound -bsre the grant commenced, and running its course from thence so as to includ ?.ied with him, and, after all this, he unites with his brother in procuring grants to divest the plaintiff of his possession. I think the rule for a new trial should be discharged. In delivering this long opinion, I omitted to advert to the case of Miller v. Lanty, and the authorities there cited, which had been decided in this Court a few terms before. I refer to it now because it was founded on a principle which it is the interest both of the Crown and the people to preserve inviolate, for its infringements might occasion improvident grants to bo sus- tained, to the injury of the public, or mischievous grants to be upheld, to the prejudice of an individual. That principle is that the king's grant must take effect as it is intended to take effect, or it cannot take effect at all. Now the king's ordinary grant is intended to convey huul to the grantee, and not a law suit. The king never gives livery, and therefore his grant is intended to convey the title and the possession, and, if it cannot convey both, it conveys neither. ; I? % Hill, J. For the first time we are called upon to consider deliberately at bar the right of the Crown without office or without removing a party in possession, to grant the waste or Crown lands in this Province, when at the time of passing a grant the intruder was actually in possession. The length of possession does not come into question, in the case before us, because the Chief-Justice laid it down without qualification as to time that an actual exclusive possession would operate to render a grant of the Crown nugatory. Several cases have been discussed and decided heretofore, in which the vali- dity of grants came into question when the possession of the parties was congeable and rightful, and under the authority of the Crown, tho' without grant, or where it appeared that the Crown had parted with the possession by a previous grant. In these the Court have held office and a removal of the parties nc '^- ,ry. Wheelock v. Kown, (Easter 1835,) Miller v. Lanty, (1841,) may be mentioned among others as decided upon the ground of the -'I:: i rfS 184 UICHARD SCOTT i'. JAMES HENDERSON. !,X m'i -4 possession prior to the grant being rightful and not gained by intrusion, and upon the fact tliat the Crown had parted with its possession by a prior grant. An opinion has certainly very generally prevailed that whene\er a party had an actual possession of Oown lands, the Crown could not grant to another without office or a removal of the party in possession. Whether this dis- tinction obtained by reason of no distinction being drawn in the early cases on this point, between tho rightful and the tortious occupier of Crown lands, or to some hasty and not well measured expressions of the Judges on circuit, or to no case of sufficient importance having arisen to bring the question up, or how else, it is not necessary to intiuirc : the fact is so, The question, however, being now before us, does seem to my mind one of little difficulty. It cannot bo denied that her majesty is seized in her demesne as of fee of all the vacant waste or Crown lands of the Province, The moment Nova Scotia became a British Province, all the lands in it passed to and were held by the Crown, in the only way it can hold them — Jure Coronae. If the record of her majesty's tenure is demanded, tho answer is that it is inscribed on her Crown. When we are prepared to demand the record of her right to the Crown, we may then require the other record. Surely, then, her tenure is the best of all imaginable tenures, and it would be but a waste of words to elaborate this position. It is equally clear and beyond dispute, that all lands in this Province, as in England, are held mediately or immediately of the Crown : that is a principle of the con- stitution familiar to us all. Now, then, the queen being so seized of all the lands in the Province, let us bear in mind another position and principle — that consistently with the royal dignity the Crown cannot divest itself of its title, except by matter of record. But the argument for the plaintiff is founded and built upon the assumption that her majesty has not in this case so divested herself by matter of reconl, but on tho contrary that the plaintiff has intruded upon her and so possessed himself (without showing howi as to prevent her majesty granting against his possession without ofiice or his prior removal. The queen, then, not having parted with her possession by matter of record at the time of the intrusion of the plaintiff, such intrusion cannot operate to prevent a grant — for she »vas in possession notwithstanding the intrusion. For the (Vown cannot be disseized. In the case of a private individual there may be intrusion or wrongful entry upon a vacant possession — or disseizin — a wrongful putting out of him that is seized. Not so in the case of the Crown : there can be no disseizing ii.. Coniyn. Dig. Seizin F. 2 ; Cro. Jac. 54 ; Co. Litt. 277 a. Indeed, the doctrine is found in every book treating on the subject of prerogative. If, then, tho queen carmot be disseized, she in virtue of her legal ubiquity is always in possession, and as a necessary consequence, it seems to me, can grant, u.iless restrained by some act of parliament from doing that which tho conmion law authorized. I find In > RICHARD SCOTT v. JAMES HENDERSON. 135 no authority giving countenance to the idea that the Crown (except when restrained by act of parliament) cannot grant while an intruder is in posseu- sion of Crown lands. A great deal was said respecting office found, which does not appear to ine applicable to this case. To be sure office is neceesary where the Crown claims by a new title — as upon a forfeiture condition broken, or because the party last seized died without heirs or the like In f-uoh ciisos office is recjuisitc that the queen'.s title may appear of record ; but if her title appear by other matter of record, or the law casts the possession upon her, office is not necefsary. But here the queen claims upon her original title. She has never parted with her possession to any one, in the only way which she can part with it. The plaintiff is in as u mere intruder U[)on lands actually in the possession of the(Jrown, and to rei|uiie an ofiioo in such case, does appear to me inconsist- ent. All the cases und authorities in the books relative to office are referable to the endeavor of the Crown to repair and reinvest itslf with a possession toilh to/iich it Lad previously parted by matter of record — to repossess itself, ill fact, uf the huul of the subject. The rule appear.'^ to be that where a sub- ject shall not have possession in deed or in law, without entry, the (|ueen will not he entitled without office found, or other matter of record. Thus a jierson disseized cannot, without entry, convey, because he is not in possession. So the ((ueen, where she has once parted with possession, cannot gain that pos- ^^I'ssioii without office or other matter of record. The statutes 8 and 18 Hen. \ 1 , were passed for the protection of the subject against the power of the Crown, and as a barrier against their lands being harshly and improperly seized into the hands of the Crown, and regranted to interested and rapacious individuals, ever ready to avail themselves of their influence. They were enacted to protect the rightful posi^essor and occupier, not the tortious intruder. To prevent the Crown without due consideration and upon false suggestions regaining a posscsiion with which it had previously parted, not to hamper and restrain it in the use and disposal of its undoubted right. It seems to me. therefore, that it would be a perversion of the express object of these statutes, if they could bo culled to aid this plaintiff or any other person endeavoring, not to prevent the invasion of their own rights, but to enable theni to invade those of the Crown. We are not now called upon to say what bearing the statute of 21 Jac 1, cap. 14, may have on this subject, or whether its provision ought to be held as extending to this Province. Without mean- ing to give any decided opinion, my impression is that it ought to operate with us. At common law, and prior to that statute on an information of intrusion, the Crown could put the defendant on showing his title specially. He could not plead not guilty or non entrusit generally, for then nothing but the mere fact of intrusion would be in issue, and the defendant would be turned out of possession, for a title, for the king appears upon the information, if uo i 136 lUCHARD SCOTS v. JAMKS HENDERSON. If III title appear on record for the Jcfendant. Chitty, Prerog.. 333. The infor- mation of intrusion i,s filod by t!io Attorney (jeneral, and its language is, that he gives the Court to understand and be inibrmed " Tiiat certain lands ought to be in the hands and possession of the queen, in right of her Crown of England." Nevertheless the defendant, with force and arms, intruded upon her possession. Now at common law, to this information the oubject must have shown his title specially, no matter how long his possession or occupation. To remedy this and to restrain the (Jrown, in certain cases, from compelling parties, after a long po.ssession, to show their titles specially, was the object of the Stat, of Jame.«. Under this act I think a sulhcient protection is afforded the subject, for, after a possession of twenty years, after time and toil and labor have been expended upon the cultivation of the soil, he has a right to hold the possession till tli'j title he adjudged ibr the queen. The Crown, therefore, can neither grant or reniuve. Time is afforded for an application to the honor and favor of the Ciown The very pavssage of this act shows tliat pv oiously an intruder had no right whatever as against the Crown, and that it was considered as an act of grace and favor to permit an occupier of twenty years to stop short of specially showing his title, when called on. With consequences we have, strictly speaking, no concein ; but, if the present decision should be in accordance with the opinion I have briefly and imper- fectly expressed, I cannot but anticipate beneficial results. It would have a powerful tendency to check and prevent a practice, too extensive, I fear, of " squatting," as it is called. This leads to injurious consequences, not only as respects the rights of the Crown, but also the very parties pursuing, for we all know wh;it a fruitful source of litigation this has been. What can we expect but confusion and disorder, from the indiscriminate seizin of the Crown lands ? Bliss, J. — This was an action of trespass, quare clausum fregit, tried before tbe Chief-Justice at Amherst, in June, 1842, when the plaintiff obtained a verdict A rule nisi was granted for a new trial, which was argued at great length at the sittings after Michaelmas Term, by Stewart, in support of the rule, and Young, contra. The plaintiff claimed the locus in quo as part of a lot originally granted by the Crown in December, 1809, to William McKenzie, through whom he derived his title. The defendant claimed it as part of an adjoining lot granted to him by the Crown in February, 1828. In leaving the case to the Jury, the Chief-Justice submitted this to them, among other questions : Whether it was established by the proof that, at the time the grant to the defendant passed, the plaintiff was in chc actual and exclusive possession of the land which the defendant claims under that grant, telling them that if he was so actually possessed of it, the Crown could not RICHARD SCOTT i;. JAMES FIENDERSON. 137 grant it unti) it had imovcd the plaintiflP, and that, therefore, tiic defendant could not justify the trespasses under that grant. This, it was alleged, was a aisdirection on the part of the learned Chief- Justice, and was one of the grounds, and the main one, on which the rule nisi for a new trial was grunted. Several other questions also arose under it which it is unnecessary for mo to notice, as I am of opinion that the charge, in this respect, cannot be sup- ported, and that a new trial must, on that account, be granted. The point, before us, then, for our consideration, is this : Whether the Crown, never having granted or parted with its right to certain lands, is pre- cluded from granting them to an individual, where another person is, at the time of such grant, in the actual possession of such lands. I am not aware that this Court has ever passed any opinion on this point — that any case has ever been brought before it, in which it became necessary to be decided. In several, indeed, the right of the Crown to grant where it was out of possession, has been questioned, but in all these, as far as I am acquainted with them, where the Court has decided against such right, the Grown appeared to have parted with all its original title, and then, undoubt- edly, it has been held, and most correctly so, that before it could take the land from one who was in the possession of it, and grant it to another, it must resort to the means which the law has provided to reinvest it with the right — inquest of office. In Miller v. Lanty, the only case in which I have been called on to give an opinion on this subject^ such appeared to have been the fact, and I find, on referring to the opinion which I then delivered, that it was predicated, in these facts, that the king had previously parted with his right, and that another was in the full enjoyment and possession of the land, when the grant was made to Miller; which I, therefore, with the rest of the Court, thought, under these circumstances, was invalid. And such, too, was the case which was referred to at the argument from Annapolis, and decided by the late Chief-Justice. It must be admitted, however, that it has been long and pretty generally considered, as it was laid down at the trial of this cause, that the Crown was incapable of granting, where the land appeared to be already held by another in possession, and, although the question may not have beea brought before the full Court and there considered, it has, I believe, on more occasions than one, been so ruled on the Circuit. I am quite free to confess my own participation in this error, as I now conceive it to be ; it could only have arisen from the subject not having before required or received any particular attention — for, once that it has been argued and deliberately investigated, it appears to me free from doubt or difficulty. It is a fundamental maxim of the laws of England, (derived from the feudal system), that all lands within the kingdom were originally granted out by the Sovereign, and are therefore held, mediately, or immediately, of the Crown. 2 B. Com,, 51. 2 Plow., 498. Bac. Law Works, 131. The highest title 18 I 138 lilClIAKU rfCOW V. JAMJiS llENDEUSON. 0:>t\ which a 8ubjcct can have, is that of u tenant in too aimplc, and he ia called u tenant because he holds of the Crown. Co. Lit. 1. All lands being thus vested in it can only, according to another principle, bo divested out of it and pass from it, by matter of record ; and, on tho other hand, having been once divested — its orignal title having been parted with to a subject — the Crown can only retake such lands (in general) by matter of record also. This doc- trine too necessarily prevails in the colonial territories of tho Crown We require no argument or authority on this point, but we happen hero to possess the very highest — a legislative enactment on tho subject. The act of 33 Geo. II., c. n, recites that "This Province of Nova Scotia, or Acadic, and the property thereof, did always of right, belong to tho Crown of England, both by priority of discovery and ancient possession, and that no grant of property or any of the lands or territories belonging thereto, is of any validity, or can give the possessor thereof any legal right or title to any part thereof, unless derived from thence." The king, then, holds originally by a higher title than any record can give. It is coordinate with the sovereign power and authority of which it is a branch ; when, therefore, it ia said that the Crown can only ac(|uire lands by matter of record, this expression seems obviously referable alone to those acquisitions of tho Crown derived back from its own mediate or immediate grantees, and is wholly inapplicable to the high and paramount title by which it originally holds. From the well-established principle that the title of the Crown can only be divested by matter of record, it followed as a necessary consequence equally well-rccognized, that the Crown cannot be disseized nor dispossessed, since no laches can be imputable to the Crown, for not entering. Co. Lit. 41 b. ; 57 1. The title and possession once in the Crown, they remain so till it is legally divested and dispossessed. Bac. ab. Disseizin 4. Whoever, therefore, " Enters upon any of the demesnes of the Crown and takes the profits, is said to intrude upon the king's possession ; and " All intruders are trespassers upon the kingj and if he will, he may charge them by action of account, as bailiflfs," or he may proceed against them by information for intrusion, and " Every intrusion supposes the possession to be in the king," Hob. 322 ; 17 Viner, 217. Nor could any continuance of the intruder, however long, at least at common law, give him any right, or divest or dispossess the Crown, but he was still liable to be proceeded against as such. Plow. 546. And it is said that the king, in intrusion, can, in no case, allege continuance absolutely, for that shall be supposed against none but him who shall gain an estate by wrong (which an intruder cannot), and that the king can only allege the con- tinuance tZiucrsis dieiws et vicibus. 17 Viner 219, cites Moor, 375 — see the dictum of Manwood, Ch. B., Leo. 48. PI. 1, 49. The information of intrusion, it has been held, was not a real, but a personal suit, and to be resembled, in all points, to trespass, for it supposes the king in possession as lUOHARD SOOTT o. JAMES HENDERSON. 130 action of trespass supposes u subject, and the land is not demanded nor recover- able, but damages only, as in trespass, and the defendant is to bo fined si con- vincatur de intrusione, as in trespass, if ho bo found guilty of entry vi et armis. The judgment on intrusion is only quod committantur et capiantur pro fine, and thereupon goes an injunction for the possession, and there is no judgment quod recuperet sehinam, nor does an habire facias possessionem issue in such cases. Ilale Gh. B. Hard, 460. These propositions, clear and undeniable, appear to me to settle the point now before us. When the Crown made its grant to the person through whom the plaintiflF claims, it parted with nothing more than was comprised within that grant ; the title and possession of the adjoining lands still remained in the Crown If the plaintiff entered upon any part of the land not comprised in bis grant, it was a wrouglul entry — an intrusion on the possession of the Crown, and ho might at any time, and therefore at the time when the grant passed to the deft of the land then intruded on, havo been proceeded against by information. If such were the case, and the Crown, at that time, was both seized and in the contem- plation of the law so completely in possession that it is likened to the possession which the subject st have, in order to enable him to bring trespass — upon what principle ci o maintained that it had not the fullest right, under these circumstances, to make a grant of the land to the defendant ? or why should it be thought necessary that the Crown must be first put to an inquest of office? 16 Viner, 79; Office B. 3 PI. Com. 229. Whore the Crown had only a right or title to lands, this was necessary to vest the estate and possession in it, and was thence called the office of entitling, and when this office was found the king was thereby put in immediate possession, without the form of an entry, and until this office was found he could not grant, for, until then, he was not in a situation to grant — he wanted an essential quali- fication for that purpose: the possession of the land — lex nihil frustra facit. But to what end would it be to resort to office wherever there was but a wrongful entry on the possession of the Crown ? The law could not require it on behalf of an intruder, to protect his possession, for it holds that he has and can acquire none, nor can the law consider it necessary for the Crown, in such case, to take any proceedings to entitle itself, when it views it as already clothed with both title and possession. Inquest of office would here be useless and nugatory. Plow. 229. In WiUion v. Berkly, it is stated by Anthony Brown, J., that if the king's tenant for life dies, the freehold in law is pre- sently in the king ; and so, if the king's tenant dies without heir, the posses- sion in law is presently in the king, without office ; " For, he said, " an office is not necessary but when the king shall take by it ; here the freehold is in the king before office, and thus it is idle to have an office to convey that to the king which the law has conveyed to him before office found." It appears, however, from the passage in Stanford, Pro. 54, cited in Doc v. Redfern, 12 East. 104, that, when the possession is cast upon the king by I4a RICHARD SCOTT v. JAMES HENDERSON. descent, reverter or remainder, which was the case in Willioji v. Berkly. PI, 220, though it requires no office to give it effect, yet the king cannot make it a possession in deed by his grant, because of the statute of 18 Hen. VI., cap. 6, which avoids all letters patent made of land, before office found, and this might, at first, appear somewhat opposed to the right of the Crown to grant, in the present case. But the possession thus cast upon the king, giving him what is called a possession in law, as distinguished from a possession in deed, takes place only in those cases where a legal possession has previously existed in some other, from whom it returns to the king. Here, however, we have not to do with a possession in law, cast upon the king, but with a possession that has never been out of him. The Crown hero claims, not after any legal interruption of its right and possession by its tenant or others, but "The sovereign lord and original proprietor of the land," (3 Bl. Com.,) of which, unalienated as it is, tho full right and possession remains in him in deed and in law, as effectually as before the intrusion. Com. Dig. Prer., 67 -70. It would seam, indeed, to be laid down that office is always nacessary except when the king's title appears by matter of record, and the difficulty — /: difficulty there can be on this subject — appears to have grown out of this, sbr it having been assumed, as I think correctly, that the title o'' the Crown here is not by record, it is hence argued that office must, ihevefore, be resorted to. But these expressions in the books, as those, also, which state that the Crown can only derive title by matter of record; hav£ no reference to lands held as these are — Jure Coronae. It is only when the Crown has parted with this, (its original title and possession,) and claims the land again, that the doctrine respecting office has any place, and the reference to it is to be understood. This appears to me clear, from its entire inapplicability to any other state of things, and from the incongruity which would otherwise exist in the law. It is quite impossible to reconcile the principles I have stated with any other view of the case. And in Knight's case, cited by Lord Ellenborough, in Doe v. Redfern, (Moor 209 ; 17 Viner 82, pi. 8,) it was held by three Justices — Rhodes, Pirryam and Anderson, that the statute 18 Henry VI., c. 6, '• Did not extend to the grant of any lands but those which came to the king bj new title, as wardship, mortmain attainder, and the like, (' In which,' says Lord Ellenborough, ' is included title by escheat,') and, while the queen has seizin by other means than new title, no return of office was necessary before grant, neither by the Icttar nor the intent of the statute." Nor have I been able, after a pretty diligent search, to meet with a single case in which office appears to have been held necessary or to have been resorted to, except when the lands have come to the Crown by new title ; and all the instances and examples given in the books arc of this dc^-cription aloiK'. It was not, indeed, to bo expected, according tD the view of the I RICHARD SCOTT v. JAMES HENDERSON. 141 I subject which I have taken, that any authority should be found to' show that inquest of office was necessary in those cases where the Crown has never parted with its original title ; but the absence of any such authority and even of a dictum to that effect, strongly corroborates the opinion which I have formed. Since the argument took place we have been referred to the case of Doe e. d. Watt v. Morris, (2 Bing. new cases, 189,) the facts of which arc these : The king was seized of the manor of Iscord, and the wastes within the same, in his desmcsne, as of fee in right of his Crown. In 1803, part of these waste lands were, without leave of the king, enclosed and held, up to the time of the action, without any acknowledgment or rent, by the occupier. In 1826, the lessee of the plaintiff purchased the said manor from the king, which was convoyed lo him under the statute 57 Geo. III., cap 97, by the commissioners of woods and forests, and the question was : Whether the lessee of the plaintiff was entitled to rooovcr from the defendant the waste lands thu? hold and occupied ? Th*" i.;ourt decided ho was not : that, as there had been an uctual though wrongful possession adverse to the Crown for upwards of twenty years, the intruders were protected by the statute 21 Jac 1, c. 14, even against the Ci'own itself, until a judgment in intrusion, and that the commissioners were not authorised by the statute 57 Geo. III., c. 97, to sell any property of the Crown so circum tanced. !<■ is true that in giving the judgment of the Court, Chief-Justice Ti?idal, referring to the general and acknowledged principle, as he calls it, that the king can never be put out of possession by the wrongful act of a subject, says that " It may be doubtful whether this general impression did, at any time, intend more than that the remedies given by the law to the kin^' for such a wrong, were remedies which fiupposcd him to be still remaining in possession, such as an information of intrusion, which was in the nature of an action of trespass, qua. cl. fregit, or the right to charge the trespassers in accouct as his bailiffs for the profits of the premises of which the possession was so wrongfully taken ;" from which he would seem to imply that there might still be such an adverse possession against the king as to render him incapable of granting. He, however, has assigned no reason, nor referred to any authority for this doubt, nor has he made the decision of the case before him to rest in any degree upon it, though if such an opinion were well founded, it could have been a short answer to the case. But he proceeds to show that, giving the fullest extent to the common law principle there must be, (since the statute 21 Jac. 1, cup. X4,) .such a theory as an adv -ye possession to the Crown, in point of fact. Now the very statute itself appears to me to show strongly how full and complete the possession of the Crown is, to all intents and purposes, except as it is thus affected by the statute, and that, prior to the passu)g of this, and of another statute to which I shall also refer, there was no such ;hing known to the law as an adverse possession which could, in any way, irtorfero with the right of the Crown, Before that statute, if to an information of intrusion tm niOlIARD SCOTT V. JAMES HENDERSON. ■;.;■ 'W;.:(i |t f fit' the defendant pleaded not guilty, he lost the post'eesiion ; he was, therefore, obliged to plead specially, and show the title by which he claimed ; when he was, therefore, simply an intruder, and had no title to set up, he lost his lands as a matter of course, however long his poss'' «ion might have been. 4 Inst. 116. But by the statute 21 Jac. 1, c. 14, "When the king or any claiming under his title shall be out of possession or not have received the profits of the land, &c., within the space of twenty years before any infor- mation of intrusion be brought to recover the same, in this case the defendant shall plead the general issue, if ho think fit, and shall not be pressed to pleud specially, and shall also retain tho possession thereof until the title be tried, found or adjudged for the king." The principle, then, that the king can not be put out of possession by the wrongful act of a subject, is, as far as relates to the remedy for such wrongful act. left wholly untouched by the statute ; for tl'c king way still, after the twenty years possession in another, proceed by information of intrusion, which is wholly founded upon the possession being still considered in the Crown ; but, as far as regards his right to resume that possession, and treat it as one de facto, the statute has interposed and restricted it when the intruder has been twenty years in possession. But this shows that, prior to the statute, the possession of the Crown was not considered one of law merely, for the purpose of a remedy, but was an actual possession for all purposes ; and since that statute, no adverse possession short of twenty years can abridge or interfere with the right of the Crown, just as by the analogous statute of 21 Jac. 1. cap. sixteen, passed at the same time — which stands next but one to it on the statute book — the entry of a person claiming right was barred after twenty years, but by no shorter period. So, until the full twenty years shall run out, the intruder is left in the same situation in which he stood before this statute passed ; until then, the possession of the Crown, and the right of the Crown which results from that possession, remain in full eSoc* If we should hold that an r.dverse possession can be had in point of fact, against the Crown, by anything short of twenty years, so that it is rendered, thereby, incapable of granting lands upon which an intruder has entered, where is the limit to be assigned to such a doctrine ? The Crown must be equally incapacitated to grant laud after a possession of one year, or even less, as when the possession of the intruder has been twenty years. Can such a doctrine accord with the general principles of the law ? " The law," says Manioood, Ch. B., in Fitich v. Throgmorton, (Moor, 295,) " requires every owner of land to make his claim or entry, or otherwise the law cannot be more vigilant for him than he is for himself, but in the case of the queen it requires of her no attention, and does not impute laches or folly to her, but commands her subjects to take notice of her title — to avoid the possession when the queen is entitled." The possession being once fully vested in the Crown, when dues it so far cease to have that possession that it ceases to have the power of granthig? Is it tho instant that the intruder has RICHARD SCOTT v. JAM3S HENDERSON. 143 ted ses las entered ? In the case of a private person, be would atill be considered in possession, and could treat sucb intruder as a trespasser. At wbat period, then, after the intruder has entered, is this right of the Crown so materially affected thereby ? There is no reason, no principle, no authority, (which I have been able to meet with), from which I can collect that such a right — a right of the Crown, too — can be obstructed or impaired by the wrongfuf act of a subject. The law has carefully guarded the possession of the Crown, and nothing can change or limit that possession, or intcfere with or prevent the plenary exercise of its right resulting therefrom, till the law itself is, in this respect, changed ; that has been done by the statute already mentioned, (21 Jac. 1, cap. 14,) which has broken in upon the common law principle, and recognized an adverse possession against the Crown rafter twenty years, and in all cases which fall within the operation of that statute, that is, where the adverse possession has continued for twenty years, the Crown cannot now grant until it has first proceeded against the intruder. In all other cases the common law principle that Ihe po^ession of the Crov/U cannot be disturbed by an intruder, remains in full force ; and, consequently, its right to grant, not- withstanding the possession of an intruder, cannot, I think, be impugned. There is a case in Dyer, 166 b., which closely resembles the case of Doe, c. d., Wott v. Morris, (2 Bing., N. C., 189), as well as the present one. The king being seized of the manor of Beverly in fee, in Jure Coronae, a stranger erected a shop on a vacaat piece of the land of the manor, and took the profits thereof, without paying any rent to the queen for the shop. The queen granted the manor in fee to the Earl of Leicester, and he never entered into the shop nor took any rent thereof. The occupier of the shop died in possession of it, and his son entered. It was the opinion of four against two (in the Court of Wards) that there was no descent, (as the better opinion seems to be from the case cited by Viner in the margin. 17 Viner, 217.) It does not appear how long the intrusion had continued, but, as it is stated to have commenced in the time of the king, if King Philip is here meant, it must have been for some years, for the case is in 9 and 10 Eliz. And whether it was over twenty years, it matters not, for it was before the statute of 21 Jac. 1. It is observable, however, that not a question was raised as to the right of the Crown to grant, notwithstanding the possession by the intruder. As to the shop passing under the grant of the manor, on part of which it was built, the only doubt scorns to have been whether the descent cast in this case took away the right of the grantee, which, in fact, concedes the validity of the grant as respects this part of the manor, or that question could not have arisen. The case of Barry v. Goodman, cited in the margin of Viner, (17, 217,) is to the same effect. " Where A. intruded upon the king, who granted it over to B,, and A. continued in possession and died seized, the best opinion was that this does not take away the entry of B." 144 RICHARD SCOTT v. JAMES HENDERSON. r'\ m In Plowden's Queries, 273, this case is put : The king is seized of a manor. A. intrudes into an acre parcel of it, and builds a house. The king aliens the vianor. A. continues and dies seized. The question is, what remedy the alienee has. It seems that by the intrusion and building, A. has not gained any estate or possession, for he is not able to have an action of trespass against a stranger, and an intrusion does not lie with continuance, ex quo sequitur; that the continuance after the patent sealed and delivered gained an estate in fee, and consequently a descent of the heir, and the patentee cannot have a scire facias upon the patent, nor a writ of right, nor any other action, inasmuch as he had not cspleas nor possession, so that, peradventure, it will be a title, in which case' the descent shall not take away his entry," Now here, again, the whole of the law thus stated and the reasoning, is built upon the assumption that a grant by the Crown, of land wrongfully occupied by another, is valid ; and that the land so held by the intruder will pass by such grant ; the only question being as to the proper remedy which the grantee had against the heir of the intruder. In t'ae same year in which the statute 21 Jac. 1, c. 14 was passed, another statnce, 21 Jac. 1. c. 2, was exacted, by which the right of the Crown was still further limited with respect to land, restraining it from suing or claiming by reason of any right or title accrued for sixty years previous to that time. This statute was amended and rendered more eflFectual by 9 Geo. III., c. 16, which put the same limit to the Crown in respect of any right or title accruing sixty years before action commenced by the Crown — a statute generally known as the nullum tempus act, and which has lately been passed here also, 7 Wm. IV., c. 93, (1837.) In Lord Coke's commentary on the statute of James I., 4 Inst. 188. He states that, " Before the making of this statute, in respect of that ancient prerogative of the Crown, that nullum tempus occurrit regi, the title of the king was not restrained to any limi- tation of time, for that no statute of limitation that ever was made, did ever limit the title of the king to any manors, lands, tenements or hereditaments, to any certain time. And when many records and other muniments, making good the estate and interest of the subject, either by abuse or negligence of officers or by devouring time, were not to be found, by means whereof certain indigne and indigent persons, prying into many ancient titles of the Crown, and into some of later time concerning the possession of divers and sundry bishoprics, deans and chapters, and the late monasteries, and of persons attainted and the like, have passed surreptitiously, in letters patent, often times under obscure and general words, the manors, lands, tenements and heridataments, of long time enjoyed by the subjects of this realm; now to limit the Crown to some certain time, to the end that all the subjects of this realm, their heirs and successors, may quietly have, hold and enjoy, all and singular manors, lands, &c., which they, their ancestors, or any other by, from, or under whom they claim, have of long time enjoyed, this act was RICHARD SCOTT v. JAMES HENDERSON, 145 made and moved from the House of Commons." By one of the clauses of this act, every person, their heirs, successors, and all claiming by or under them, shall quietly enjoy such manors, lands, /iic, as they now claim and enjoy, (whereof the Crown had not been answered the rents within sixty years, nor the same had been duly in charge or stood insuper ol' reqord with- in sixty years), against all persons claiming any estate or right, Sfc, in or to the same by any letters patent, or grants upon suggestion of concealment or wrongful detaining. And upon this Lord Coke remarks : " This part secures the subject against the subject, viz. : against patentees and grantees of concealments, defective titles, or lands not in charge, and all claiming under them. A beneficial law both for the Church and the commonwealth, in respect of the multitude of letters patent and grants of these natures and qualities, and many of them of large extent and in general words, that had passed through the hands of many indigent and needy persons ;" " And they were called," he says, " letters patent of concealment, because, either they had a clause before the habendum — QucB quidem maneria nuper fuerent a nobis concelata subtracta vel iNJUSTE DETENTA, or to like cflfect, or elso a proviso after the habendum, to the like effect." Now from this statute and the commentary upon it, we learn most clearly that it had been prevalent to pry into and seek out the ancient titles of the Crown to manors, lands, &c., which had been, of long time, in quiet posses- sion of the subject ; and the title of the Crown being thus unlimited, they obtained grants and letters patent of such lands under a pretence that they had been concealed or wrongfully withheld from the Crown, and this was the mischief which the statute professed to remedy. The Crown, then, was in the constant habit of granting lands which were, so to speak, in the adverse possession of its subject, and these grants were never considered illegal, or they would have been checked by a very different kind of statute. Lord Coke certainly could never have considered them so, or he would never have failed to remark it, for he is warm and indignant against those who obtained such grants, for he calls them " Harpies and hell-worms ;" nay, he allows these grants to be legal, for he says that " Hitherto the title of the Crown had^-ien restrained to no limit," and this statute was expressly made to restrain its right and title for the future, and was entitled " An act for the general quiet of the subject against all pretences and concealment whatsoever," that is, against these very ^ants and letters patent of lands which were in the possession of others, and alleged to be concealed and detained from the Crown. In Arthur Legates case, (10 Co., 109,) which Lord Coke calls " A case in subversion of pestilent patents of thievish concealers," the facts appear : The king and queen, Philip and Mary, were seized of the manor of Wimondham, in the county of Norfolk, in fee, in the right of their Crown 19 r 146 RICHAUD SCOTT v. JAMES HENDERSON. of England, and by their letters patent granted to Sir Geo. Howard, omnes Mas duas ptcias terra vocatas Nettlehamstead v. Wikemans, modo vel nuper monasterii deW. pertinentas, qua guidem omnia praemissa a nobis concelata el detenta fuerunt. It was proved by the special verdict that the manor of which these lands were part, was not concealed or detained from the Crown, but that the rent and profit, (saving of these lands called N. or M.,) were answered to the king before and at the time of the s. 'T letters patent. The question was : Whether these lands passed by those Ibt -rs patent. It was held that though these lands were occupied by an intruder, yet as the king and queen were in receipt of the rents of the manor itself, these lands which were part of it, could not be said to be concealed ; and that so the recital in the grant, that they were concealed, which was to be taken as the suggestion of the patentee, was false, and the grant, therefore, void. Not a question, we see, was here made as to the right of the Crown to grant lands which were withheld from it — of which it is thus plain, I think* that no doubt can exist. And so it is expressly stated in Com. Dig. Pre. D' 65. " If lands belong to the king by attainder or other title, though they are concealed for a long time, i^nd not in the king's possession, the kin^ may grant them to another, for no time runs against the king." But it is added, <* Nothing shall be said to be concealed land which comes to the notice of the king by matter of record, as if land be expressly found by office to have come to the king, or be granted or surrendered to the king." Cro. Eliz. 507. And he refers to the Queen v. Vaugkan, where it is held that concealment is only where lands are in the queen by attainder or other title, and that iiothing shall be termed to be injuste detenta from the queen, but that whereof the queen had but a right only, and never had any possession; and this seems, from the reasoning of the Judges, to result from that principle of law which I have already so much dwelt on — that, having been once in posses- sion, the Crown continues always still in possession, and therefore there can not, in such case, be a detainer from it. But all this appears to me more conclusively to confirm the position which I am endeavoring to support. By the grant of land described as concealed, and wrongfully detained from the Crown, no land passes of which the possession has once been in the Crown, because such lands still remain in the Crown's possession, notwithstanding their wrongful occupation, and are, therefore, not concealed or detained ; but lands of which the Crown never had the possession, but only a right, and of which, for long time, the possession has been in another, may be granted by its letters patent. Surely & fortiori then, the Crown may legally grant lands, where the law still considers it to have always had both the right and posses^ sioQ : It cannot grant them by the description of concealed or detained lands, but it can grant them generally, as it can its other demesnes. I will mention one other case to illustrate this right : A lessee of land cannot, in general, assign or grant over his term, where he has been put out of possession, RICHARD SCOTT v. JAMES HENDERSON. 147 until he has first reentered. Cro. Eliz. 18. " But, if the queen's lessee be ousted by a stranger, yet, although he may be out of possession, he may assign over his term, for the reversion being in the queen, he cannot be put out of possession but at her pleasure." Cro. Eliz., 275. Again I say, ik fortiori, then, if the queen's lessee by reason of her continued possession, is capable of assigning, though ousted by a stranger ; the queen herself must possess the power of granting, for the same reason, though a stranger has entered into possession. I have gone thus at large into the consideration of this question from its importance in this country, and because I find an opinion widely different from my own, is still entertained by two of the Bench. My respect for those with whose views I am, unfortunately, unable to agree, has made it the more proper for me to examine the subject with attention, and to seek out every authority which I could find, that had any bearing on the point. This I have done to the best of my power. It has impressed me with a very strong con- viction, the grounds of which I have just given, that where the Crown has never parted with its original title, it retains the full power of granting lands, notwithstanding another may have possessed himself in the mean time, and be in occupation of such lands, except where the power of the Crown has been restrained and limited by statutes. In the present case no statute has that operation and effect ; and without entering into any consideration of the policy of the law, where it is my business only to state what I conceive to be the law, I am of opinion that the direction of his lordship the Chief-Justice was in this respect incorrect, and that the rule for a new trial should, there- fore, be made absolute. Thomas C. Halibcrton, J., concurred in the opinion given by the Chief- Justice. GENERAL RULE. MICHiELMAS TERM— 1856. Counsel, when addressing the Court, are to read their authorities from their briefs, and not from their books. H» #1' !'i.;l . fi; i }'] nt^X ■i'ii.\< • \ . /, v.. .1 V 1. .;>'. ■'» 1 r.i iv' ill- i-'i ..I ^ I r CASES ARGUED AND DETERMINED IN TllK SUPREME COURT OF THE I r »'.> i;..'i'i PROVINCE OF NOVA SCOTIA. EASTER TERM 1857. KEITH ?.'. CUNNINGHAM. ''..'"" '.''/L.. To entitle plaintiff to enter suggestion on the record of the judgiuont more than six years old, when defendant is out of tlie Province, the rule must be published thirty (lays in the Royal Gazette. ('. Twininfi asked leave to enter a suggestion on the record of a judg- niLiit more than six years old, in order to issue an execution under section 11 G of the New Practice Act. . - - . Ry the Coukx. — As the defendant appears to be out of the Province, your rule must be published thirty days in the Royal Gazette. ' Rule nm granted. KNODEL V. BEST, an Absent Debtor. Whcit! the affidavit on which an attachment was grounded was made before a Justice of the Peace, and it appeare'iiil,ln. Esq., of River Philip, fjpri IW Hilton, of I'ugwash, and Sh-phm Fulton, Esq., of Wallace, arl)itrators to finally settle the same, and to whom it is hereby agreed that said disputes are hereby referred, and that their award, or any two of them, shall be final in the premises, provided the same be made in writing, ready to be delivered on or before the lOth day of June, 1856. Now the condition of this bond is such that if the said Srinuid F. Jlnrliridi/'' shall well and tndy fulfil, keep, and perform any award so to be made in the premises, then the same shall be void." It appears that the arbitrators met on the 11th of Jime, 1856, and having all three of them hoard the statements of the parties and the testi- mony adduced by them, and learning from them both that no further testimony would be offered, the arbitrators, before separating, considered the whole case, and determined, in their own minds, as to the award which they would give in the premises : and then and there, before sepa- rating, informed the parties that they had so determined, but, as they had not time that evening to draw up the award properly, two of them would meet on the following day for the purpose of signing the award, and the the third should sign it on the day after, being within the time limited in the submission, Friday, the 18th day of June ; that the parties agreed to this arrangement, and the award was so signed accordingly. The award is as follo-ws : We, the undersigned, being mutually chosen by .iinns PiirJi/, of Wal- lace River, in the County of Cumberland, and Saitntd F. Hurhvidge, of Pugwash, in the aforesaid county, to settle all disputes between the afore- said parties, touching a quantity of saw logs sold by Amoa Pardy aforesaid, to Samuel F. Hurhrlrh/r, in the year of our Lord 1852, do award as fol- lows: That SavDiel F. Hitrhridf/c do pay to ^Imos Pnrdi/, his heirs, executors, administrators or assigns, the sum of £120 currency, three months after the date of the beginning of this award ; and also that Samuel F. Hurhridijo do pay the sum of £10 13s. 6d., being the amount of wit- nesses fees, as per bill annexed, and that Samuel I". Jitirhridr/e and Amon Purdji do pay the sum of £4, for arbitrators' fees, equally between them. (Signed.) ROBERT DONKIN. (Signed.) LEVI W. EATON. (Signed.) STEPHEN FULTON. Pre WASH. -Tune 12th, 1856. PURDV ,'. lirUlUlllKiK. 14W The defendant, after the award wiw Nif^ned hy two of thi- urLitrutorH, wlio are authorized by the submission to make an award, on the 1 JJth of ■lime, the time limited for the award to be made, addrcsHcd the fnl' owing note to the arbitrators: i , • •* % ' ' " GiiNTi-iiMKN : Ah the evidence given by Ihnid Piin/i/ on Wednesdiiy, was not correct, I wish you to dehiy giving your award, as I wisli ati opportunity to-(hvy to prove what I have stated above, otherwise I notify you to make no award whatever. , , " I remain, &c., "vSami'ki, F. UniBRTnoK." Tlie defendant swears rUat the witnesses he wished to examine on the l.'Uh June, were tvo persons named Jamcn Forsifth and (honjc Forsifth, one of whom the plaintiff swears resided at the time in the United States, iind the other in Horton, so that their attendance on that day was impos- sible, and the arbitrators were limited to that day to make up their award, by tlie submission. The objections to the award, were : 1st. That material . vidi ^ce was tendered to the arbitrators, before the award was signed by all of them. 2nd. That the award was not signed by ail the arbitrators, in presence of each other. ;5rd. That the award is not final — does not direct the suit to be discontinued. 4th. That the arbitrators had no right to determine upon the cost of tlie witnesses. Now, when we consider the general disposition of the Court to sustain the decision of judges of the parties own choosing; that in this particular case the attention of the parties was turned to one subject-matter only, viz., the dispute which had arisen between them relative to the sale and delivery of timber ; that the decision of the dispute was decided in favor of the plaintiff by all the arbitrators, and no objection was made to their decision until the very day on which they were bound to make their award, and that there is not even a suggestion of any improper motive inducing arbitrators to decide in the plaintiff's favor — the defendant's Counsel must not be surprised if the ('ourt are disposed to look narrowly into his objections. Still, if they are well founded, they must prevail. Now, upon the first objection, I would observe that the offer to give additional evidence to the arbitrators M'as not made until the day when, 154 PrUDV ,>. HI UHIUDUK. ll' I ■«'»■) it m hy the srhmission, tlic arbitrators wore limited to give in their award, the ianguage of the submission being : '• That the award shall be made in ^>^Titing, ready to be delivered on nr hrj'orc the 18tli day of June, 185G." That before it was made the arbitrators had made up the award, and two of them had signed it together, and, by the terms of the submission, any two of *^hem were authorized to make the award on or hi'forr the aaid 13th of June, and the arbitrators swear that, prior to making the award, they had learnt from both the parties that no further testimony would be offered. 1 think, therefore, that this objection to the award should not prevail. 2. in respect to the second objection — That the award was not signed by all the arbitrators in presence of e. en other — I would observe that two of them signed tlie award in eacli other's presence, and, as two were authorized by the submission, 1 think that is sufficient; and, to say the least, that their act is not vitiated by the subsequent signature of thetliird, an arrangement to avoid the trouble of a journey from Pugwash to where the third arbitrator resided, and to which, it is sworn, that the parties had assented. It is true that the Courts, to whose authority we are bound to submit, have decidtnl that arbitrators must sign an award in presence of each other, because, up to the last hour, one of them may change his opinion, and the parties are entitled to the benefit of it. Wade \. Pnirlini/, 28 Eng. L. fe E., R. 104. I confess that I do not feel convinced that this argu- ment is sound, because 1 think that, before the Court act upon it, they ought, at least, to have bi en convinced that the fiai of a change of o] anion had taken place, but 1 bow to the authority, and, if it were ap])licablc to this case, should yield to it ; but this award, having been signed by two of the arbitrators in each other's presence, who were authorized by the submission, is, 1 think, sulftcient, without laying any stress upon the con- sent of the parties to tlie subsecpient signature of the third. 3. In respect to the third objection — That the award is not final, and does not direct the suit to be discontinued — it is a decision upon the very matter in dispute. The submission, which is by bond, states: "Th)' whereas, there are divers disputer, between the parties touching and concerning a quantity of logs purchased by the defendant from the plaintiff, for which the said plaintiti' has brought an action against the defendant, which is now pending in th" Sujjrcmie Court at Amhfrst, and they have chosen iioh' >i l>o"ki)i, iV-c, to settle tiio same." And tlie award, after stating that the arbitrators were chosen by the parties to settle all disputes touching a (juantity of logs, sold by plaintiff to defendant, do award as Follows, «fec. The action wouhl not be di>jcontinuod as n matter of ^-^ourse. iiocaur-:c the I'l'HDV Hi:RURID(iK. 165 plaintirt', by the terms of the submission, was ompowere I to inakqiturulc of C'Onrt, and might, consequently, enter up a judgment upon the award in his favor. 4. A i to tlie fourth objection — That the arbitrators had no right to ilccide j)on the payment of tlie witnesses" fee.'. — their having done so docs not vitiiite the award, and it may be rejected. 1 think the rule to set aside the award should be discharged. W 11. KINS, ,/. — All tiiat adjudicated cases demand relative to the authentication of awards, is tlie conc\irrence in judgment of the number of niiiifis re(|uire(l by the submission, and that verified by the simultaneous siiriiatures, in the ])resen(e of each other, of thn persons who have exer- cised that judgment. />Hth' v. AcirUni, 2 M. & G., ;3(J0. Sliilii:orth v. Tuns, la Mees & Wcls, 4()6. Wnrh- v. fhwlh,;/, 28 L. & Eq., 106. I'l'ler^on v. J///v, 80 li. &i, Kq., .53o. This award has both thes'' conditions. No authority requires more than these, and theifforc, oven if Fullon — who did not sign the award until the day succeeding that in which Donkin and Fjaion had subscribed it — h.id dissented, and had not subscribed at all, still the award would hare been that of the two other arbitrators, M'hich was all that the submission rendered necessary. As regards the objection that material evidence Avas tendered and refused, the affidavits of defendant do not show, as they should have shown, to make the objection available, not merely that the evidence was material, but that it was tendered to the arbitrators before they had made their award, and that the production of it was practicable under the circum- stances. Hesides, the materiality is contradicted, and plaintiff has sworn that I he evidence was not prepared before the award was made, and that it could not possibly have been presented to the arbitrators. As to the alleged want of finality, and that the award has not disposed of the action, it ajipears that the arbitrators had but one substantial mat- ter of diffe-ence referred to them, viz., that which formed the subject- matter of the suit at law. The a\s'ard, then, after reciting that the arbitrators had been chosen to settle tUl dis})utcs between the parties touching that which was the subject in controversy and in suit, and that the award of any two of them should be final, proceeds to award payment, by defendant to plaintiff, of a certain sum : also that the former should i)ay to the latter the amount of witnesses' fees, as per schedule annexed, Avhich thereby appeared to be the expenses incurred in respect of witnesses on both sitles, at the arbitration ; it also specifies the amount of arbitrators" fees, and directs thorn to be borne (■•pially by the parties. ir:5 1 of, JM'RDV lUJMilUlXJK. Now there are, i)erhai)s, two ways of viewinA i, ; 158 GRAY r. WHITMAN. ft f H. Troop, had agreed to purchase a tract of land from the plaintiiF for £110, and was to give a note with a security for part of the purchase money, and a bond and ir.ortgage for the residue. This agreement was not reduced to writing. The deed, however, it appeared, had been made out and remained in the hands of the plaintiflF's attorney. It appeared, also, that there was a person in possession of the land who claimed to have purchased it, and to have paid part of the purchase money to a former owner — but there was contradictory evidence on this point. The Chief- Justice charged the Jury that, if the agreement as to the sale and purchase of the land was such as had been stated, that the note was given in part payment as a deposit, and if defendant had shrunk from fulfilling his agreement for the purchase without sufficient cause, their verdict should be for the plaintiff. Verdict accordingly, for the plaintiff. A rule nisi for a new trial, was taken out and argued. Halliburton, C. J., said : Upon mature consideration I am of opinion that the view which I took of the case at the trial, was erroneous. I considered the note altogether in the light of a deposit made on account of a purchase of land, and I thought that the depos5^or could not recover the deposit back from the party who was acting in good faith, and willing to fulfil his part of the agreement, although it was not obligatory upon him, in consequence of its not having been reduced to writing. I am not quite so strong even in that opinion, since I have looked into the case, as I was at the trial, although I think that, in an action for money had, &;c., the plaintiff could scarcely contend that, under such circumstances, he was entitled, ex equo et bono, to recover it back. But the maxim : Potior est conditio defendentis, might be urged in favor of the defendant then. In this case, however, the plaintiff, who has sued the defendant upon this note, must shov; that the law entitles him to recover. While a note remains between the original parties, and has not been negotiated under the statute, if the consideration is impeached the plaintiff may be called upon to prove it, and in such case, I think, he must prove a legal conside- ration ; without which the action cannot be sustained upon the mere naked promise in tlie note, I well remember when the case of Wuln v. Warltera, (5 East. 10), which was decided in 1804, took the profession by surprise. But the decision of Lord EUenborough at Nisi Prins, was sustained by the whole Court of Kings Bench, and it has ever since been considered as a soimd, wholesome exposition of the Statute of Frauds. In that case the plaintiff declared upon a promise made by the defendant that, in consideration, the plaintiffs would forbear to sue A. B. upon a bill of exchange for £56 16s. 6d., which they held, and on which they had employed an attorney to bring an action, defendant would, by half-past 4 o'clock on that day, pay GRAY V WHITMAN. 159 10), lit the whole onnd, aintitt' jn, the 6 168. icy to y, p«y plaintiff £56 and the expenses which had then been incurred ; that plain- tiffs did forbear, and that defendant did not pay, &c. At the trial the plaintiffs produced the following written agreement, signed by defendant : " Messrs. Wain & Co. : I will engage to pay you, by half-past four this day, fifty-six pounds and expenses on bill — that amount on Hall;" and then offered proof of the facts stated in the declaration, to show the consideration of defendant's promise, without which it was nudum pactum. Lord EUenhorouffh, upon view of the Statute of Frauds, which avoids any special promise to pay the debt of another, unless the agreement upon which the action should be brought, &c., should be in writing, decided that proof of the consideration by parol was inadmissable, because the statute rendered it indispensable that the agreement, of which the con- sideration formed an important part, should be in writing ; and non-suited the plaintiff. I think the principle upon which that case was decided is decisive of this. It may be said that in Wain v. Warlters, the action was brought upon an agreement which the statute expressly avoided, and that, in this case, it is brought upon a promissory note, on which actions may be sustained. But where the plaintiff is put to prove a consideration, the naked promise in the note is as much nudum pactum until that conside- ration is proved, as the promise in Wain v. Warlters. Had it not been for the statute, the consideration set out in the declaration to forbear suing A. B., might have been proved by parol, and would have been a sufficient consideration ; but Lord EUenborough decided that the statute prohibited the admission of other than written evidence to prove it. And, upon the same principle, I think I ought to have refused any other than written evidence to prove an agreement relative to the sale of lands, which alone was set up as the consideration for which this note was given; verbal agreements for such sales being rendered void by the same statute. ^1 . 160 QUEEN r. CHIPMAN, c^ al. QUEEN V. CHIPMAN, et.al. The commissioners and sessions cannot lay out a road substantially different from that petitioned for by the freeholders. This was a rule nisi to set aside proceedings to open a road at Clement's- Port. There was a petition signed by above twenty freeholders, praying General Sessions to lay out a public road, " Commencing at the main post road, at the west line of lands owned by Thomas Jones, and running northerly to the bank of Moose River, and thence round the bank of said river, easterly, to the main post road." The sessions directed a precept to three commissioners, which was required to be returned fifty days before the next session, in October. The Report of the commissioners was dated the 30th October. They recommended a road wl :ch ran only half the distance asked by the petition, and instead of two termini being on the main road, one only terminated there, the other being at a landing-place on the bank of the river. In order to take advantage of a private road that ran along the line they recommended, they laid out the new road forty-nine and one-half feet wide. There was a certiorari, and, upon a return of the proceedings, a rule nisi Ritchie, in support of the rule : It does not rest M'ith the sessions to lay out any road they may think proper. There must be a petition pre- sented to them signed by more than twenty freeholders. They can only confirm or disallow the road prayed for in that petition. They have no right to make any modifications therein. The law requires that the report of commissioners should be filed at least thirty days before the meeting of the next sessions. Rev. Stat., cap. 62, § 2. The sessions met the 4th Tuesday of October, and the report was not signed till the 30th day of the same month. The road is required by the statute to be not less than fifty feet wide. 1855, cap. 39 Young, Q.C. The petitioners merely indicate the road they desire in general terms. Its exact course and termini are left to the commissioners and sessions, who are made the judges of how the object of the petitioners is best to be gained. The main reason for the application for this road was, that there might be convenient access to the river. The petitioners required that this access should be a line striking the main road at two points. The commissioners thought that the convenience of the public would be sufficiently consulted by giving them this access on one side. The landing place, which forms one of the termini, is sworn to be a public one, and this is enough to make it a good terminus for a public road. 3 Kent's Comm., 442. As to the road being only forty-nine and one-half, instead of fifty feet wide, this is one of those cases in which the legal maxim ought to apply, de )iiinimis non curat lor. The rule taken out in this case does not specify the grounds on which proceedings are sought to be set aside. V liUlllllTT i. HATFIELD. 161 sire in sioners itioners road tioners at two public side, public 3 e-half, 3 legal out in ghtto Ham.ibuktox, C. J. — The road laid out is an entirely different one from that asked by the petitioners. I do not say the sessions are bound to pursue the very track indicated in the petition : they might vary a few feet ; they might, perhaps, within a short distance, limit the termini ; but the road must be substantially the road for which petitioners have asked. Desdabres, J. — The public have petitioned for one road, the sessions have laid out a different one. We must not extend the authority of the sessions in this particular. The power of entering into the property of a private individual and laying out roads, is liable to great abuse, and the legislature have, therefore, framed strict provisions, to guard the public interests. Those provisions must be complied with. WiLKiNs, J. — The legislature, looking on the one hand to the interests of the country, and on the other to the rights of individuals, have enacted certain provisions relative to the laying out of roads. These provisions ought to be observed in all their strictness. The law requires the free- holders to petition — a committee to examine and report upon the propriety of the application — and the sessions to approve or disapprove thereof. The commissioners and sessions have, however, in this matter, exercised their own discretion, and have laid out a road not in accordance with the vieM's of the petitioning freeholders, but with their own ; this, they had no authority to do. Rule made absolute. BURRITT, et al. Overseers of the Poor for Yarmouth, HATFIELD, d.al. Overseers of the Poor for Argyle. Overseers of the poor are not liable for money due by their predecessors in office. The suit was brought for the recovery of a sum of money paid by the j)laintiffs" predecessors in office, for the support of a pauper chargeable on the township of Argyle. The office of overseer is an annual one. An agreement had been entered into between the plaintiffs' and defendants' predecessors in office, by which the pauper was not to be removed from the township of Yarmouth, but the overseers of that township were to be repaid the sum expended by them for his support. This occurred three or four years since. On these facts the Judge ordered a non-suit. West now showed cause against a rule nisi to set aside the non-suit. The overseers of the poor are annually elected, and are only liable for their own acts. They cannot be made liable for the acts of their predecessors, as they can only assess for liabilities incurred during their own tenure of ifi Ifi2 RURRITT r. HAT?1ELD. office. Ilov. Stat., cap. 89, § 2 — 26. James K., 83.5. 4 T. R., 778. 2 T. R., 395, They have nothing to do with any other accounts of the township than those of the year in which they are in office. 6 T. R., 159. Nur can the successors in office sue for a debt due to their predecessors, save in those exceptional cases where power is expressly given them by statute, as in 54 Geo. 111., cap. 170, § 8. Rev. Stat., cap. 91, § 10. ClarliC; in support of rule. — Overseers of the poor are, for certain pur- poses, deemed corporations. Ang. on Corp., 19 — 566. 4 Burns Just., 25. Add. on Cont., 389. Cliitty on Contr., 91. 8 Mod., 339. Our statutes have also given them i)owers which render them quasi corpo- rations. R. S., cap. 89, § 20 — 27. R. S., cap. 91, § 10. IIalmhuhton, ('. J. — This action is brought against defendants as overseers of poor for the township of Argyle, to recover an amount expended to support a pauper belonging to that township, some years before the defendants came into office. 1 think the action cannot be maintained. If it could, we should hold the defendants liable for an act with which they had no concern and could not have prevented, which would be manifestly unjust. It is neither a non-feasance or a mis-feasance of theirs. The third section of the act for the settlement and support of the poor, (ch. 89, Rev. Stat.), renders the township liable to the maintenance of the poor who have gained a settlement therein ; and, if they neglect or refuse to perform such duty, our books are full of cases in which they can be called upon, at the suit of the crown, to perform it ; but, if we give judg- ment against these defendants, we render them liable for the amount of it, and leave them to seek their remedy against the township. The thirteenth section of the same act declares : " That every township shall be liable to pay any expense which shall necessarily be incurr -:Ci for the relief of a pauper by any person who is not liable by law for hit. sup- port, after notice and request made to the overseers of the township, and until provision shall be made." The township, when sued, may dispute its liability and resist the claim ; if it be liable, the Court will give judgment against it. But that is very different from giving judgment against these defendants, and rendering them liable, in the first instance, for a claim with which, as I before observed, they had no concern. It may be said that, in this case, the liability of the township was admitted, and a promise made by the then overseers to pay the amount due for the support of the pauper. To this it may be answered, that a promise to pay is not payment, and if a suit become necessary to enforce it, it should be brought againot the township, who are made liable by the BUftftl'l T V. HATKIKLl). 1 (i."> act. It is true that if the township has a defence to the action, it is the duty of the defendants to make it ; but no action can be brought apainst them unless it be for doing what they were not authorised to do, or for omitting to do what they were bound to do ; and these defendants have neither done the one or omitted to do the other, for they were not in office at the time. DKsnARRKs, J. — This is an action for money paid and expended by the overseers of the township of Yarmouth for the maintenance of a pauper whose settlement is in the township of Argyle. It is not for money paid by the plaintiffs at the request of the defendants, but it is for money paid by the predecessors of the plaintiffs, for the maintenance of the pauper before the defendants were appointed to, and assumed the office of, over- seers of the poor for Argyle ; and the question is, whether the action will lie under these circumstances. My opinion at the trial was, that the action would not lie, but I gave judgment for the plaintiffs, subject to the opinion of the Court, because it was asserted that, in a case tried in Tusket village, it had been ruled otherwise. The inhabitants of the township of Argyle being under a moral obligation to pay this claim, I have since looked into and considered the case, with every disposition to support the judgment, but I have not been able to find any authority upon which it can be upheld. That an action may be main- tained by those who were overseers of the poor for 1802 against the then overseers of the poor for Argyle, for the maintenance of the pauper between the spring and fall of that year, may not, probably, be disputed, (though, as to that, it is unnecessary, in this case, to give an opinion), for there is evidence of an express agreement made between these parties for the support of the pauper for that time ; but I cannot see how an action can be sustained by the plaintiffs against the defendants, between whom there is no privity of contract whatever, for money paid for the maintenance of this pauper as well before as for that time, by persons who are entire strangers in this cause. Overseers of the poor are appointed annually by the Courts of Sessions, on the recommendations of the Grand Juries, to discharge the duties belonging to their office ; \vhich, I believe, are not considered difficult or burdensome by those on whom they generally devolve. In the discharge of these duties they may occasionally be obliged to make advances and incur liabilities for casual poor ; but, when they do, they must take care to protect themselves by exercising, while in office, the powers of reimbursement with which they arc clothed, to relieve them- selves of burthens of this description, which neither they nor those they represent are expected to, or ought to, bear. The law provides that all monies required for the support of the poor 'l3 KM HURKITT r. HATFIELD. of their own township, shall be assessed upon and collected from tlie inhabitants ; but where overseers are obliged to make advances for the relief of paupers coming from and belonging to other townships, it gives a remedy that ought always to be promptly pursued. That remedy is by the removal of the pauper to the township where he or she has obtained a settlement, and by calling on the overseers of the poor of such township to pay the necessary expenses of the removal. K. Stat., chap. 89, § 4 and 5. Now the overseers of the poor for the toAvnship of Yarmouth have neg- lected to pursue that course, and liave thought fit to incur an expense for the maintenance of this pauper for several years, which is now sought to be recovered in the names of the plaintiffs, who have paid no part of that expense, against the defendants, who have never authorized or promised to pay it, upon the ground that overseers are corporate bodies, and that the plaintiffs have, therefore, a right to sue for this expenditure. This position, it appears to me, is altogether at variance with the statute under which these public officers are appointed, which distinctly shows that they are only annual officers, responsible and bound to account to the Courts of Sessions for all their acts and proceedings ; which Courts have the power either to allow or disallow these accounts, as they think fit. The control thus given to the Courts of Sessions over these officers, is inconsistent with a corporate existence, and cannot be exercised over an incorporated body having the power of managing its own affairs, and making bye-laws for its own government. It is only necessary to consider what are the ordinary incidents of a corporation, to see that overseers of the poor have not, and were not intended by the legislature to have, any corporate privileges, except for the limited and special object expressed in the law, to which I shall presently refer. They have no corporate name by which they can sue and be sued, nor can they purchase and hold lands and chattels ; they have no common seal, nor can they make bye-laws for their own government, and it will not surely be pretended that they have perpetual succession, without which they cannot be a corporate body. They have not, in fact, any one of the incidents essential to a corporation, and cannot sue or be sued for or in respect of any contracts or obligations but their own. It is declared in section 20 of chap. 89 of the Revised Statutes, that where the inhabitants determine to erect or hire a building for a poor- liouse, and vote money for that purpose, and for the annual repairs and expenses connected therewith, and the overseers shall proceed to hire or erect such building as directed, the title and interest therein, when con- veyed to them, " Shall vest in them and their successors in office as a body corporate.' BUIIRITT >K HATFIELD. 165 1 admit that, for the specific object here expressed, limited corporate privileges arc conferred on overseers of the poor ; but, to entitle them to have and enjoy such privileges, they must comply Avith the reqiurements of the law ; in otlier words, when the inhabitants have determined to erect or hire a buililing for a poor-house, and voted money for tluit ])urp08e, the overseers of the poor must actually proceed to erect or hire the building, before they can become vested with, or exercise, corporate powers. It does not, liowever, appear that the overseers for Yarmouth have ever erected a huildinj^ of this description, and therefore it is impossible to say that the plaintiffs, even tor the special object expressed in the law, are |.HWsessed of corporate powers, much less that they are a corporation for all purposes relating to, or within the scope of, their office. If they were a corporation, this action, which is brought in the individual names of the plaintiffs as overseers, could not, even tlien, be sustained ; for, in that case, it ouglit to be in its corporate name — an objection of itself fatal to the whole proceeding. In every view which I have taken of tliis case, I have failed to find any principle of law on which it can be su])ported. It is an action without a precedent, and I think the rule for setting aside the judgment must be made absolute. Wii-KiNS, J, This cause was tried before Mr. Justice Desbarres, at Yarmouth, in September last. The action appears to have been brought, to recover the amount of certain charges, alleged to have been incurred by the plaintifls, as over- seers of the township of Yarmouth, in maintaining a pauper legally chargeable, (or asserted to be so,) upon the township of Argyle. •ludgment was given for the plaintiffs, subject to the opinion of the Court, on the ground for non-suit, taken by Mr. (Jrdfjhtov, Q. C, of Counsel for the defendant, viz. : that the debt was contracted by the predecessors in office of his clients. It does not appear that the plaintiffs, as overseers of the poor, in which capacity they sue, have been indemnified in respect of the pauper in question, there being no proof of any charges incurred by them, on that account, during their year of office, although it does appear that certain disburse- ments were made by those who preceded them, for the maintenance of this particular pauper. No privity of contract exists between the parties who sue and defend, respectively, as overseers of the poor of their respective townships, unless their legal existence in the characters in which they appear before the Court, instead of being limited to their year of office in which this action was brought, continued from and included the official year, in which the iissumed debt was contracted. 3 166 BURKITT V. HATFIELD. '> s In event of judgment being given ugiiinHt these dcfenclantH us overseers, they have no means of compelling the inhabitants of the township which they represent to vote the amount of the debt, which is foundeil upon a claim that arose in preceding years. This is obvious, for those inhabitants — except in cases specially pro- vided for, and which do not affect this (juestion — are limited, in the pro- vision which they can legally make, to " iSuch sum as they shall judge necessary for the support of the poor for the nufvid tjvor,'" See Revised Statute, ci.. 89, § 17. Besides, a Iverting to the fluctuating character of every human commu- nity, wo may remark that the inhabitants of Argyle who, in the year 1856, are sought to be made liable in this cose, are not the same individuals who, in a former year, incurred the liability to which the charge in this action refers ; neither are those who now seek to recover, the same persons who incurred that charge. I infer, from the evidence reported, that the pauper — in the opinion of the overseers of Yarmouth, at least — had a legal settlement in the town- ship of Argylc. If such opinion were well grounded, the difiiculty which has induced this action might have been averted, had — at the time when Yarmouth was likely to become chargeable — the provisions of the law been adoi)ted which have been enacted to meet this very case. Those provisions enabled the overseers of the township threatened with a charge to which it was not liable, to remove the pauper to the township of his legal settlement, and compelled the latter to receive him, to defray all legal expenses incurred, and to indemnify the former in respect of him for the futm-e. (See ch. 89, § 4 & 5.) Tlie learned Counsel who ai'gued tliis case for the plaintiffs, spoke of overseers of the poor as a qii(x>^i corporate body ; but the authorities that he cited entirely support the gi-ound of non-suit taken by Mr. CreiylUon, establishing, as they clearly do, that those officers have no corporate powers or attributes except so far as, for special purposes, they may have been conferred upon them by the legislature. An instance of this occurs in the twentieth section of the Revised Statute already referred to, which makes them a corporation for receiving a conveyance of title in a poor-house, or in the land on which the same is designed to be erected. The tenth section of the Bastardy act, chapter ninety-one, was also referred to by the plaintiff's Counsel as strengthening his argument, but it operates against him because, when the legislature enacted that " The overseers may sue in their own names, upon any bond entered into under the chapter last referred to, whether made to them or their predecessors in office, and that such suit should not abate hy the death or removal from office of mich <>rcrsci:rn, m- ainj of fh'iii ,•" it was tantamount to a legislative m NASH '. Mc(^\RTNEY. 167 declaration that overseers were not a corporation for general puqioseB. Upon reference to our statutes I have not discovered any provisions which f^ivu to overseers of the poor a coHtinuin(j exhtmce in relation to paupers, or to contracts respecting? them, heyond the year of office for which they arc (ifpintitcd. The judgment of non-suit moved for at the trial, and which, I think, must he now given in this case, will he, in my opinion, fully sustained by the views 1 have already expressed, and by the following authorities, which will be found (lecisivc of the question raised for our decision, vi/. : Ajisell and Ames on Corporations, § 5, p. 19 ; and 566, § 8. 2 Kent's Com., p. 309. Ibid 311. Sanden v. Emsloy, 3d Stark, R. 28, per Jidilei/, Justice; and see Harrison's Dig., 5,197. Leiyh v. TmjUir, 7 B. dt C, 491. NASH V. McCartney, an Absent Debtor. A siil)SO(|ueiit iittneher is not entitled to have the proccsH of a preceding attaclier set jwide for an informality in tlie atlidavit on which the attachment was founded. An attachment may issue for an e'iuitable claim. Wir.KiNs, /. dissenting. This was an application on the part of Tohiv, et al., as subsequent attachers, to set aside the process in this case. The wife of the absent debtor was entitled, under her father's will, to a life-interest in the sum of £299 4s., with the remainder over to her children. On application to the Court of Chancery, her husband was appointed trustee of this fund, and a recognizance was entered into by him and his brother, as a security for the faithful performance of his duty. The brother had since died insolvent, and the absent debtor had invested a portion of the funds, in his own name, in a house which was now the subject of attachment. An appli- cation was made to one of the Judges for the appointment of John D. Xaxh as trustee, in lieu of the absent debtor, and an order was thereupon granted for that purpose. Immediately on being appointed, John D. AV,.s/( made an affidavit, stating the facts, and his belief that the absent debtor was indebted to the trust fund in the sum of £299 4s. Upon this, writ of attachment was issued, and the property of the absent debtor attached. \V. I'winiiKj (for the subsequent attachers) moved to set aside the attach- ment on the ground that the affidavit was not sufficient, inasmuch as it did not contain a direct and positive statement of any debt being due, but was merely argumentative, and cited 1 Tidd, 191. 1 Burr, 265. 1 T. K.. 716. 2 B. (!t 1'.. 18. 1 Wils, 121—279. 2 T. R., .^S. 3 T. R., f l! 168 NASH r. McCAKTNKY. 575. N(r (lid it show on what acco.int it became due: 1. H. Bl. 10. 5 T. R., oryl. I Dowl, P. (!., ;U'J2. 4 M. & K., 448. 1 B. & C;., 108. Nor did it show that the money was (hie from the plaintiff to the defendant, nor did ii appear that there was anj- privity of contract between them. An affidavit N\as produced to sliow that ther(! was an outstandiuji; mortf^age for part of the sum, and notv,ithstan(linf.>;, the attachment had l)een issued tor the whole amount. yiuidoch, colli r(t. — Tb's comes within the class of excepti(m8 to the general nde. When a piU'ty sues in (inlrv dmi', the law re(iuires only an oath to this belief in the existence of the debt. 4 iiuiT. 2,28:^, 4 T. R., 17(5. 8 T. n., 418. 1 Wils, 2;i2. The attidavit does sutfici- ently state how tiie debt became due. The out-going trustee, bcin^' divested of his oihce by a competent Court, becomes liable, as a debtor, to the newly-appointed one. The objecticm te the atHiiavit, if good, cannot avail in the i)re'-('nt proceedings. I.y the 8th section of ca]). 141 of Revised Statutes, a subsecjuent atti.cher can only dispute validity of prior attachment on the ground that there was no delit (hie. 1 .fames, N. S. 11., ;J47. Twiiiiii;! and Rilrliif. — It never was the intention of the legislature to prevent subsetpient attachers froui shewing that the affidavit on which the attachment v.'as founded was not sufficient. This is an e(iuitable claim, not a legal <\A)t : it does not come v\ithin th(> provisions of the statute relative to absent debtors. Before the [)()we's of the Chancery Court were trans- ferred to this ('(mrt, no action could have been sustained here by -/«//// /*. Nanli rustee, against the absent debt(n' as trustee. ' I . ' » %m ^i! Halmhukton, i'. -/. — This is a rule '//.•./ to s.^t '..^.iflc an attachment issued under tlie absconding ; ct. on the i'vouud of tlie insufficiency of tlic affidavit on which It issued. It is made by a sul)Ke(ji'en( attacher, and not by the defendant. The subsecjucnt attacher is authorised hy chap. 141 "evised Statutes, § 8, to dispute the validitj and effect of the attachment on the tr-'ound that the sum demanded was not justly due, or that it \,'as not })ayable when the action commenced. Upon the first view of this case, I was inclined to think that it was to be decided upon the same principle which governs the Court in deciding upon affidavits to hold to bail : that their consideration must be confincil to the sufficiency or insufficiency of the affidavit itself; l)ut, upon turning to the act in questi(m, \^\A\ Revised Statutes), I fnid that the C'ourt, on hearin<2 the motion, may direct a tr'.'. M(;(;AKTNEY 169 commenced, the Court shall order the attachment therein made to be set aside, in whole or in part, as jastice may require, but the order shall have no otlier oticct on the prior suit. It remains, therefore, for the Court to decide : ( 1 . Whether the affidavit upon which the attachment complained of was founded, is safficient. 2. Whether tlie subse(]uent attucher has whown a viiri/rr, the subsecpicnt attachers, are entitled to have this attachment set aside, and I think it must be set aside accordingly. Hallibuutox, (.\ 'J. — The opinion just read by me has been read by my brotlier DEsnAUUKs, and has his full concurrence. '\\\i: rule to set iiside the attachment must, therefore, be discharged. MOODY r. iETNA INSURANCE COMPANY. When one of the conditions of a policy requires a certificate from the magistrate most coutipiuouH to the j)l!ice where the tire occurred, stating such tire to have been accidental, &c., the obtaining such a certiticate is a condition precedent to liis right to claim for any loss. A certiticate signed by a magistrate ten miles distant, where there are others within a mile of the fire, will not be sufficient. The Court will not require a rule nui to set forth all the grounds on which the party liopes to obtain a new trial. The plaintiff in this case was the occupier of a store in Wallace. The goo'ls therein wt.e insured for .£750. Some suspicious circumstances occurred relative to the origin of the fire by which they were consumed. By the condition of the policy of insurance, the insured, on sustaining " Loss or damage by fire, are forthwith to give notice thereof to the com- pany or its agents, and, as soon after as possible, to deliver in a particular 4 t t if i 171 MOODY /. .'HTNA INSIKAXCK COMPANY account of such loss or damairo, signed with their own hands, and verified by their oath or affirmation;" they are also "To procure a certificate under the hand of a magistrate or notary public, (most contiguous to the place of fire, and not concerned in the loss as a creditor or otherwise, or related to the insured or sufterers\ that he is acquainted with the charac- ter of the person or persons insured, and has made diligent enquiry into the facts set forth in their statement, and knows or verily believes that he, she or they really, and by misfortune, and without fraud or evil practice, hath or have sustained by such fire, loss and damage to the amount therein mentioned," &c. And, "• If there appear any fraud or false sAvearing, tlie assured shall forfeit all claim under the policy." By another condition. "■ Policies of insurance are not assignable without the consent of tht company, expressed by endorsement made thereon, and, in case of assign- ment without such consent, wlicthcr of the policy or of any interest in it, the liability of the company, in virtue of such policy, is thenceforth to cease." The certificate in this case was made by a magistrate living at a distance of twelve miles from the place where tlie fire occurred, without making any of the enquiries contemplated by tlie policy, while there were magistrates living within a cpiarter of a mile. After the fire had taken place, the policy was assigned, l)y an endorsement without seal, in the following terms : " Fo! vril'ie received, I hcrel)y transfer, assign and set over, unto Messrs. Crrlfjhton, Wisn-dl (t- Co., and their assigns, all my right, title and inte- rest in this policy of insurance, and all benefit and advantage to be derived therefrom. (Signed.) DoxAt.n Moody."' This assignment was made wifliout any notice thereof to the agent of the company. There was also evidence to show that there was a defect- ive chimney in the premises. The agent of the comp^niy had stated that it was not his intention to rely upon technicalities, and, after receiving the preliminary proofs, stated that he had received such evidence a. would compel him to resist the claim on the ground of fraud. The learned Judge, al the trial, put (lie following issues to the Jury: 1. Was the fire accidental, or did it arise from the fraud of the plaintiff, Donald Moody f 2. Did the plaintiff furnish proper preliminary proofs, according to the terms of the 11th condition, referred to in the policy? If not, did Mr. Scott waive its being done ? MOODY V. .ETNA INSURANCE COMPANY. 175 ;j. Did the plaintiff procure an affidavit according to that condition of a magistrate most contiguous to the place of the fire ? Did Scott waive this ? 4. Was there any fraud in the claim of loss made hj- the plaintiff in returning the value of the stock destroyed by the fire : Was the affidavit made before Mr. Mr Lead of the value of tlie stock lost, in any way a false one : !). Was tlicrc any concealment by the plaintiff, wlien he applied for and obtained the policy, of the state of the stove ])ipc and diimney flue ? and, if so, was it the concealment of a nuiterial fact, and of one which ought to have been made known by the plaintiff: (). Had the plaintiff any interest in the policy at the time when the action was brought ? 7. Wliat was the real value of the goods of the plaintifi' in tlic store, wliich were destroyed by tlie fire? and this should be the amount of the verdict, if the Jury, on the whole, find for the plaintiff. m i^m There was a verdict for £2;50, and a rule ?;('«/ to set it aside, and enter up judgment for the defendant, von ohntanlc vcrrdirtn. Shannon, SutlierJand and Nilchic in sujiport of the rule. This is, sub- stantially, a verdict for the defendant. The plaintift"s affidavit states a claim for £771, and the only proof adduced, whicli is that on the part of tlie defendant, shows the amount of loss could not have exceeded £250, for which sum the Jury have found. It is, in fact, a finding by the Jury that the plaintiff has falsely sworn ; and, under tlie terms of the 11th con- dition of the policy, he has, by that act, forfeited all right to recover. 7 Bing. 340. The policy was assigned without consent of the agent, contrary to the 7th condition. 3 Brown's P. C, 497. 2 Marsh on In.su., 802 — 804. 2 Atk.. 555. Cogs-'vell v. Albion Insurance Company. This action is wrongly brought. It ought to have been in the name of the assignee, and not of the assignor. 18 Vict. (1855) cap. 23, § 47 and 48. The want of a proper certificate by the nearest magistrate is fatal, as, without that, the plaintiff has no right of action. 6 T. R., 110. Ang. on Life and Fire Insurance, p. 257. 1 H., Bl. 254. 2 H., Bl. 557. 20 Eng. L. and Eq., R. 541. There was fraud, also, in the concealment of a material fact — that of there being a defective chimney. Marsh on Insu., 701. r, Dowl.. 255. 6 Taunt., 338. 2 Marsh, R. 4fi. I ■^ >. 4; L .y — sj T - -] // f7fi MOODY .ETNA IXSUKANX'E COMPANY. w< Mc Cully, with whom was the Anooiinj-Gniend : There cannot be a judgement non obsta/itf veredicto for the defendant, in any case. The term involves a confession of the jilaintlff's acfion. Archbold's Prac, 289 — 290. It can only be obtained in those cases where, from the pleadings themselves, the Court must arrive at the conclusion that the judgment ought to be for the plaintiff. There are no grounds mentioned in the rule nisi why a new trial should be granted. Halliburton, C. J. It certainly is the preferable practice to have the grounds set out in the rule, but it is not essential, nor can it always be done. Dksbauuks, ,/. There can be no doubt it is the ordinary way in which rules arc made, but I do not think it absolutely necessary. The verdict in this case is not substantially for tlic defendant. It is quite possible that a person might have had a much larger stock in his store than he might be able to prove to have bc?en there at the time of the loss. In this case the Jury have negatived fraud, and here lies the distinction between the present case and that cited from 7 Bing., 349. The agent has waived all objections to the preliminary proof, by stating that he intended to rely upon fraud. The nearness of the magistrate docs not affect the contract. Philips on Ins., § 889. Angell on Ins., § 212. It was the duty of the agent, when preliminary proof was furnished, to have stated his objections to it, and not having done so, he has waived any right he might have had to object to it. If the objection had then been made, it might have been cured. Angeil on Ins., § 247, 248. 8 Moore, 612. 1 Bing., 339. In this case the Jury have found a waiver. As to the condition relative to assignment of interest in the policy, that can evidently only apply to assignments before any loss has happened. Angell on Ins., § 222. If, however, that objection was open, there is no evidence of the policy ever having been assigned. The policy being a sealed instrument, any legal assignment thereof must also be under seal. Burrill on Assignment, 2 — 220. 2 Blackst. Comm., 310, 324, 32G. Ritchie. — The policy is not under seal. Haliiburtox, C. J. This was an action brought on a policy of insurance against loss by fire. The policy covered property to the amount of $3,000. The verdict for the plaintiff was £250. A rule nisi was granted to set that verdict aside, which was argued this term. The following exceptions were taken by the defendant's Counsel ; MOODY .ETNA INSURANCE COMPANY 177 Ist. That the verdict was substantially for the defendant, as bj' the conditions annexed to the policy, and which form a part of it, the plaintifl" has forfeited all right to recover by havinf^ sworn to a loss amounting to t'700, and the Jury, by their verdict, have limited it to £250. But the case of Long v, liaillie, et. al., (5 Moore and Payne, 208), where the plaintiff swears to a loss of £1,000, and got a verdict of £500 only, under circumstances very similar to the present, furnishes us with a much safer course. There Chief-Justice Tihicn. said that, after anxious consideration by the whole Court, they felt disposed to take the opinion of another Jury upon it. 2nd. Fraud and false swearing, contrary to the 11th condition of the policy. 3rd. That the plaintiff had no interest at the time of action brought, liaving consigned the policy without the consent of the assured. 4th. That there was no certificate of a magistrate residing contiguous to the spot, as required by the f^onditions of the policy. 5tl. . Concealment of the condition of the chimney, at the time of effect- ing tha policy. 6th. Notice of loss not given according to the terms of the policy. Distinct issues were raised by the pleadings upon these points, and there was evidence given to tlie Jury sufficient, in my opinion, to have warranted a verdict for the defendant. The case of Wedei/ v. Woo(1, et. al., 6 T. R., 710, goes very fully into the consideration of the effect of the preliminary conditions attached to the policy, and decides that the requiring the certificate of the rector and church warden is a condition precedent, and that no action upon the policy — cvrn where it is wronrifully vnthlidd — can be supported without it. The reasoning of the Court in the year 17D3, when that case was decided, is equally applicable in the present day. Underwriters are so liable to l)c imposed upon by secret fraud, that they are right to guard themselves against it by requiring certificates from magistrates in the neighborhood ; that, in their opinion, the loss was occasioned by accidental, and not by designed burning ; and if parties do not choose to insure upon these terms, they need not pay the premiums. Now it is in proof in this case, th^t several magistrates resided in the neighborhood, and that the defendant, soveral months after the fire, resorted to a magistrate nine or ten miles dibtuiit. That magistrate was examined at the trial, and his account of I7H WIKH lUSSKTT. i'i tlic iiiiiniici' in whicli lie nI^ikhI it, mul his ri-UHun.s ibr .su iluiii|{, are fur iVoiii Muli,s(att()ry. Hut \vi' uri- told that the dct'ciKhintH, by their aj^cut, lias waived all this. 1 caiiiiot find any proof of an art ainoiintini^ to a waiver, and snre 1 am tiiat if, under the cireunistances of tiiis ease, Mr. Scalt hud so waived it, he would not have done his duty to his principals. As we cannot, however, comply with the defendants' retpiest, to j^ivc jiulKmont for them ikhi nhnldiifc i ii-fillcla, we shall set this verdict aside, unci, if the ])laintiH' is well-udvised, we shall liear no more of tiie case frii3 ^ ^^^ t';5,'{.j H '» Hi Imrrels 2 " lOj 42 IIOJ " ;'i SpriiiR.do. . ll ;37 ;i 9 r, •' 3 Kail, do . .. 8,1 11 12 (i '"• •?;; , "'. , 1 1 Maekerel, [ llf ICl 11 =5 10 hnli-do. S } "- l'",Tl'' ! •-' '• 1 K^if <»'> i« 1" .J luil1-do. ♦ ♦ ' £(59 1 1:5 1 Mav IH. Hv ;5() barreU Kve Flour, JiiJs. 9d. .i'*)0 12 (i Deduct. . \r> 0.. 19 17 (> £'()44 15 7 Paid II. Lawson £47 •"» 7 Sdl" 100 Note ;) iiios., for balance . .497 10 0. .£644 15 7 The weight, the number of the fish, and the; initials of the inspectorVs name, were marked on the barrels. The plaintiti" saw two or three barrels unhcadcd, and was, apparently, satisfied with the appearance of the fish. Some barrels were sent to Boston, but, on cxaminaticm there, it was found tliat several of the barrels marked No. 1, had fish of No. 2 quality, and tliere were bright and rusty fish in the same barrel. Upon plaintiff's obtaining a telegram to that effect from his agents, he sent a copy to the defendant, and ordered his' agent to sell for what they would bring. The r( mainder of the fish he had re-inspected, and afterwards sent to Boston. An action was thereupon brought by plaintiff against defendant, on the warranty. There was a verdict for the plaintiff. The Jury gave as damages the difference between the price of fish at Boston, of the quality they were represented to be under the hought-note, and of fish of the quality they were actually found to be. There was a rule nisi to set aside the verdict. Fnirhanks^ Q. C, in support of rule. Tht r- c,-tion of warranty or no warranty, was improperly left to the Jury. There • 'as not, in this case,, any evidence of a warranty. By the Rev. StdV , cap. 85, § 6, the barrels were required to be branded with the name of tjie inspector, description of the fish, the number of the quality and the weight, the initials of the christian name, and the whole surname of the inspector. This fixes the quality for the purpose of exportation. The provision was not complied with in this case, the surname of the inspector not being branded in full. '^ '*> «> IMAGE EVALUATION TEST TARGET (MT-3) A ^.-^ ^^ 1.0 I.I 1^ u^ us ■^ Ui2 12.2 m m 111 1 4.0 2.0 m |I.25 1|U ,.6 < 6" ► <^ 0n >> Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) S72-4503 #^ 4^ :| ^ O \ V<^ '^ 180 WIER BISSETT. These fish were inspected by the plaintiflF, who thus proved that he relied upon his personal observation and not upon the bought-note, as to the quality. 3 Kent, 478. 2 East., 314. Story on Sales, 315. 18 Peck, 67. The plain tifiF was not authorized in selling, without notice to the defendant ; by doing so, he has taken the whole responsibility on himself. Smith's Merc. Law, 000— 613. Story on Sales, 386— 390— 393. 11 M. & W., 538. 1 Ad. & pi., 48. 1 Car. & P., 15. 1 Moore, 106. The scale of damages ought to have been the diiFerence between the price of the quality represented and actual quality here, and not in Boston. A Ritchie and McCuUy, contra. The mackerel were purchased on the bought and sold note. The mere fact of the plaintiff subsequently ex- amining a few of the barrels will not take away his right to recover op the warranty contained in that note. 4 Ad. & El. 473. The question whether that note was a warranty, was for the Jury, and not for the Judge. What No. 1, No. 2, and No. 3 mackerel, are, is fixed by stat. When a party, therefore, sells a barrel of No. 1 mackerel, it is supposed to be of the size and quality required by the statute. The plantiff" was not bound to return the fish — but exercised a clear right in selling in Boston — for he had received and paid for them. 2 Saund. PI. & Evi. 1231 ; 2 H. Bl. 17 ; 2 T. It. 745 ; 6 Ad. & El. 523 ; 1 Tauut. 566. As to damages vide Sedgw. on dam. 286 ; 2 B. & Ad. 456 ; 3 Ad. & £1. 103 ; 2 Peck. 214. tiiniMUjt aUI" .hhn^ ^i.mHti't'imi ^ivx.' Halliburton, C." J. This was an action tried before Dodd, J., at Halifax, in Easter Court, in which there was. a verdict for the plaintiff, for £153. ■:- -.. .. .«. ..." -r,.., ,.^... k.,.. *,u.\^A ..-...„, .....J.!* A rule nisi to set that verdict aside was argued here this term, on the ground of misdirection, and that it was contrary to law and evidence, the damages not being warranted by either. It appears from the report that, in the spring of 1854, the plaintiff bought from the defendant a quantity of mackerel, a great part of which he shipped for Boston, shortly after the sale and delivery of them ; that, at the time of the sale, the fish were lying in barrels on the wharf ; that some of the barrels were opened and inspected by the plaintiff, and that he might have inspected the whole of them if he had pleased, but, finding those which were opened and inspected agreed with the description of the fish generally, he did not examine them further, but shipped them to his agents in Boston, for what they purported to be by the brands marked No. 1 and No. 2. {;r». «..:.!. jiH1 I think this rule must be discharged. ' WiiiKiNs, J. — In this case, I think there are, in reality, only two questions raise '. for our decision : , , First. Do the bills of parcels in connexion with the brands, impart a warranty that the mackerel sold by the defendant to the plaintiflf, were statutable fish of the numbers indicated ? Secondly. Did the Judge direct the Jury to estimate the damages by a proper standard relatively to the facts in evidence ? '■ What number 1 or number 2 mackerel are (respectively) in size, con- dition and quality, is defined by section 3 of chapter 85 of our revised statutes. The country dealer who sells to a Halifax merchant fish represented to be mackerel No. 1, or which on the cask that contains it is branded No. 1, does not, in legal contemplation, merely express an opinion as to the character of the' fish, but warrants the article to be of the size, condition and quality described in the statute above referred to. ^ ^-if iHrr»; The argument of the defendant's Counsel, that these particular fish were not sold for exportation but for home consumption, is not, in my opinion, of any force, because No. 1 mackerel are, from the eff'ect of legislative enactment, specifically the same under all circumstances, and irrespectively of the purpose for which they are designed. „a^,<^in'.._.- , That learned Counsel invited our attention to the 6th section of the statute above alluded to ; but, obviously, it was not designed to superadd any new required characters to No. 1 mackerel, when intended for expor- tation, but was, with the sections that immediately follow it, intended by the legislature to afibrd a security to foreigners against imposition, and thereby sustain the Provincial character abroad, in relation to the trade in fish. If the fish in question in this action were No. 1 when sold, the defend- ant delivered to plaintiff" what he professed to sell to him. If they were not No. 1, he did not deliver to plaintiff" the article which he contracted to purchase — for which he paid the stipulated price, and which he en- gaged to sell. This alternative question the Jiury have decided in favor of the plaintiff, and, as there is sufficient evidence to sustain their finding, it ought not to be disturbed unless it be open to objection on some other ground. WIEK V. BISSETT. 183 Adjudicated cases decide in principle that the sale of an article repre- sented to be of particular quality, and for which a price is paid that would not, by a reasonable purchaser, be given but on the faith of the truth of that representation, imparts a warranty in law. There was, then, a warranty in this case, by which defendant must submi'; to be bound, unless the plaintiff by his acts in evidence), absolved him from his liability in respect of it. Now, the acts insisted on, by defendant's Counsel as having this effect, are^ taken most favorably for defendant — ai* approval of the article in question expressed by the plain- tiff after a careful inspection of the fish. With regard to the last point, I am of opinion that, on principle, such acts ought not to operate in discharge of a warranty ; and I have neither heard cited in argument, nor have I found upon research, any authority to establish the position that a warranty can thus be waived. One may conceive cases of probable occurrence in which such a doctrine would operate very prejudicially to the rights of contracting parties. But it has been contended that the learned j^udge misdirected the Jury, as to the measure of damages. The argument used by the Counsel for the defendant, was that the mackerel, having been sold and inspected in Halifax, the plaintiff had no right to sell them in a foreign market, and subject the defendant to loss on a re-sale. It appears to me, however, that arguments ah inconvenienti and ex absurdo that suggest themselves here, entirely countervail the effect of this reasoning, for, are not th^se self- evident propositions, viz. : 1st. That the beller of No. 1 fish contemplates, in legal intendment, that they are, after bought, to be sold again by the purchaser in the best market, whether at home or abroad, that he can command ? and, 2ndly. That in the case of a purchaser of such an article whose particular trade is, as was that of the plaintiff, with foreign iQfur- kets, a warranty that the fish were, when sold, of th« imported quality, would be to him practically useless, if it did not intend to protect him against deception '■~- designed or undesigned-^ on the pfgrt o( the seller, to the full extent of his dealings in the particular trade referred to. The plaintiff purchased No. 1 mackerel for exportation to the Boston market, as defendant knew, or must be tt.Whether there was any rent due and in arrear by the 192 SKINNER r. CLARKE and 1»EART. '•; plaintiff to Shrew, and — 2n(ny. Whether thn defendants had made the distress complained of as his bailiffs and by his command. These were the issues tried by the Jury, and they are precisely the issues which very probably must be tried again if the verdict be set aside, and the plaintiff be permitted us I presume he will be under the circumstances to plead formally to the avowries, yet if section 243, of the new practice act does not apply to avowries, and no issues can be taken upon them without formal traverse or pleas in bar, there has been a mistrial, and the verdict cannot and ought not to be sustained. There is nothing in the act itself which makes any distinction between avowries and other pleas, the former not being excepted in that section, but as the act from its silence in respect of leaves room to doubt its application to the plea of avowTy, and it may be more convenient in practice that this plea which is generally looked upon as being in the nature of a declaration should be answered by the plaintiff more in the character of defendant than plaintiff. I do not wish to be considered as differing with my brethren in their con- sideration of it, viewing the present question important, only in so far as to settle wh t the practice shall be. If my attention had been drawn to the fact that the cause was not considered to be at issue when it was called for trial, I certainly should not have proceeded in it, but no such intimation was given to me by the defendants' Counsel until the plaintiff had gone through his case, when the objection was for the first time taken as a ground of nonsuit. I think the rule ought to be made absolute without costs. WiLKtNS, J. This was an action of replevin tried before Mr. Justice DcsBarres, at Guysborough, in July Term, 1853. The defendants pleaded — 1st. That they did not detain. 2nd. They acknowledged detention as bailiffs of iShreve, under a distress for rent due him by the plaintiff. 3rd. They acknowledged detention &c. as bailiffs of SJireve, and as church wardens of the parish of which he was rector, under a distress for rent due him as above. 4th. They made cognizance, &c. as servants of Slireve. 5th. They avow that the goods were the property of Shreve, and not of the plaintiff. No replications, pleas in bar, or other answers to these cognizances appear on the issue roll. At the trial it appeared that the sheriff of Guysborough had distrained the goods under a warrant dated the 6th January, 1853, signed by defend- ants as church wardens of Christ Church on the 3rd of May then last past. The defendants' Counsel moved for a nonsuit, on the ground that the plaintiff had not pleaded in bar to, or denied the avowries of the defend- ants. The Judi^ri' thinkinif th;il undi v tlic new ]iriirt-icc :iot tu> furtluT SKINNER V. CLARKE and PEART. 19;? pleadings after tlicse cognizances were necessary, refused to nonsuit, an — for the benefit of his soul — and when wills were IN RE'ESTATE OF KAEHTON. 197 Com- much iies of :r thus vas, of a man to the were uuthorised, it was deemed reasonable that the church should be satisfied of the fact of the deceased having made one, and, on this ground, tho probate of wills were first claimed by the Ecclesiastical Courts and has been retained by them. Where no such disposition was made, the church still claimed the right of disposing of the personal property — but after some struggling the question was settled by the statute of distributions, which compelled them to recognize the right of the next of kin to the deceased. But in this country the powers of this Court arc derived from the Legis- lature, which luis given to them the whole settlement of the estates of deceased persons, both real and personal, with an appeal to the Courts of Cliancery and Common Law, and it is essential to the due performance of their duties that they shoidd be clothe 1 with sufficient power to investi- gate, by legal proof, all questions relating to the property of the deceased, and among these it is of the first importance for them to determine whether an executor or a iministrator has given a full inventory of the property of the deceased. If he has through ignorance, misconception or worse motive, omitted any portion of it, it is the duty of the Ju Ige to inquire into it, and to collect the proof in order that this Court, in cases of appeal, may con- sitler whether he has decided rightlv upon it, and this inquiry can be made much more deliberately in the country by the Judge of Probate, than it could be by a Judge of the Supreme Court, in the short time allowed upon the circuit, or by bringing the witnesses from a distant county if the appeal is entered in Halifax. This has been done and I think rightly done in this case, for although there was some conflicting evidence, yet it should be recollected that where luiy claim is made upon the property of a deceased person, founded upon a previous bargain with him btfore his death, the right to take that, which had been his property, from his general creditors, should be established by the clearest testimony, and if any doubt exists it should operate against the claimant. 1 think, therefore, the decree of the Court below should be confirmed, excepting the costs, and chose, I think, in settling this question, sliould be borne by the estate, both in this Court and in the Court of Probate. I did not advert to the circumstance until my brother Dcsliarres pointed it out to me, that the Judge has directed the administrator to return this as part of the property of the deceased under oath. In this respect also, the decree must be modified. It is included in the estate of the deceased, because the Judge of Probate has decreed it to form a part of it, which decree is af^rmed by this Court, and not because the administrator has Hworn to it as part of his property, which, under the circumstance? of the case it would be unreasonable and unnecessary to require. 7 v\ i 198 IN RE-ESTATE OF RALSTON. i It 'i 1: I w n i«Si DesBaruks, ,/, This was an appeal from the decree of the Judge of Probate for the county of Cumberland prosecuted in this Court by Amns Pnrdy and Thomas ItnJsfon, the administrators of the estate of William liahton deceased. It appears that the administrators were cited at the instance of Henri/ G. Plnoo, a creditor of the estate, to rentier an account of their proceedings as duch administrators, and having in obedience to such citation appeared before the Judge and rendered such account, Pineo the creditor alleged that the administrators had omitted to include in it as a credit to the estate, or to return an inventory of twenty-five hundred saw logs lying on the banks of the Wallace river, and belonging to the deceased at time of his death, of the value of £125, and after hearing the parties and examining tke proofs and vouchers on both sides, the learned Judge decreed as follows : " I find and decree that the said twenty-five hundred logs belonged to the intestate at the time of his death and were in the knowledge and possession of the said administrators after his death, and that the said administrators shall within one month from this day file upon oath in the registrar's office a further inventory of the said twenty-five hundred logs, and I do further find and decree that the said administrators do pay to the said Henry G. Pineo out of their own estate the costs of this appli- cation to be taxed." To this decree several grounds of objection were taken and filed in the Probate Court, to which others were subsequently added by leave of, and under a rule of this Court. It is unnecessary to refer to all the ob- jections taken to this decree, as the appellants' Counsel directed our attention at the argument to the supplemental grounds as those on which they mainly relied. These are first that the Judge of Probate has by his decree ordered the administrators to pay to Henry G. Pineo the cre- ditor out of their own estate the costs of the application made, although the administrators had no notion of such application being about to be had in the Court of Probate as provided by the act of 16th Vict. chap. 12, section 10. 2ndly. That the Judge of Probate had no power to examine witnesses and parties other than the administrators, and to make and pronounce his decree, upon such proofs, commanding the administrators to file upon oath, a further inventory of property by which they must violate their oath of office, as well as their oaths respecting the inventory already filed. The administrators of this estate having on entering into office been sworn well and truly to administer all the goods, chattels, and estate of the intestate that should come to their knowledge or pos. ession, and afterwards filed an inventory of the assets verified under oath, are called upon l)y this decree to file a further inventory under oath in the registrar's \ IN RE-P:STATE of RALSTON. 199 been tate of and called strar's office of a quantity of .3g8 which the Judge of Probate has pronounced to be the property of the intcstste at the time of his death, but which the administrators on their examinations and statements under oath, allege to have been sold and transferred by the intestate to, and to be the property of Ainns Fowler, one of the administrators. The administrators complain that the Judge of Probate having acted on the testimony of the witnesses produced on the part of Pinco the creditor, has not only decreed that the logs in question were the property of the intestate, but he has also called upon them to make a further inventory and to swear contrary to what they have sworn before, that these logs actually do belong to the intestate? and therefore it remains for us to consider whether the learned Judge had authority to make such an order, and if it be such as can or ought to be enforced. It must be remembered that the Probate Courts, have a limited juris- diction and can exercise no greater powers than are given to them by statute. The legislature, it is true, has, from time to time enlarged their jurisdiction in many important respects, but there certainly is nothing in the law conferring on the Judge a power so unreasonable, as to compel an executor or administrator to insert in his inventory under oath any statement of property whatever, which he does not believe, uiid cannot conscientiously swear, belonged to the intestate. It is quite possible that an administrator may be mistaken as to the ownership of property, as it would appear the administrators in this case have been, and may omit either through mistake or negligence to insert in his inven- tory, property actually belonging to the intestate, and which of right ought to be taken into possession and administered as assets. But if such omission be made the creditors are not precluded by it, for if it can be shown to have been made, or that the adminiptrator from these or any other causes has wasted and squandered away any of the assets, I need not say that he may be held responsible for such misconduct under the bond which is taken by the Judge to ensure the faithful administration of the intestate's estate. The Ecclesiastical Courts in England by whose practice the Probate Courts in this Province are in some respects governed, do not claim oi pretend to exercise the same authority over administrators in regard to inventories, as is done here. They will allow a creditor to object to an inventory given in by an executor or administrator, and to file an allega- tion pleading omissa, in order that the answer of the executor or adminis- trator may be taken on that allegation, but they will not allow witnesses to be examined to falsify the inventory. That principle was very fully and clearly laid down by Sir John Nicholl in the Prerogative Court of Canterbury, in the case of TU/ord vs. Morisnv, 2 Adams report 329, and i; 2()() IN UK-KSTATK OV K ALSTON. f^; I' u it has been held in the Court of Kinj^s Bench on several or-eaaions. that after an inventory is exliibited, the l-'ccU'siastieal Coiivt can entertain no objections to it, the offtce of the or Unary in rehition to it bein,i>; considered merely ministerial. .'} Hnrr. 1922; o M. tV S. K)() : .') Ad. vV K. 62;}. It must be remarked, however, that the Mni^lish stiitute is different from our own. 21 lien. J', e. 5, § 4. It merely rccpiires executors and adminis- trators to cxliibit inventories, but it does not limit the time within whicii it shall be ilonc, an 1 it appears that according to the modern practice in Kngland, neither the executor or a iministrator in {general cases exhibit any inventory unless ho he cited for that purpose in the Spiritual Court, at the instance of a party interested. 2 Williams on Executors, HJUi. Our statute limits the time within which the inventory shall be filed, to three months after letters testamentary, or letters of administration shall be f^rantcd, unless the Court on petition shall grant further time, and it also provides "• that if any real or personal estate of the deceased shall come to the knowledge or possession of the executor or administrator after he shall have filed such inventory, he shall within a reasonable time file another." In these respects, therefore, there is a marked difference between the English statute and our own, but both agree in one particu- lar, and that is, that the inventory when filed, shall be made and verified on the oath of the executor or administrator. The learned Counsel on the part of the creditor have reminded us that the Courts of Probate in this Province have much larger powers than are possessed by the Ecclesiastical Courts in England, and in order to show that they have, we have been referred to chap. 12. § 12 of the acts of 1851}, which says " that in the settlement of the accounts of executors or administrators, or in any matter pertaining thereto the Court of Probate shall have the same power which is enjoyed by tlie Court of Chancery." The fact of the C'ourt of Probate having a concurrent jurisdiction with the Court of Chancery in the settlement of an administrator's account cannot in the face of this act be for a moment disputed, but that does not seem to me to touch the ])resent subject of inquiry, which relates to what an administrator can be compelled to insert in his inventory as assets in such a case as this, and not to the power of the Judge to make a settlement after the assets have been ascertained and the inventory has been com- pleted. It certainly does not at all satisfy my mind that the Judge has any power over the consciences of the administrators, and that he has a right to order them to take an oath contrary to what they have previously sworn, and contrary to their own convictions, and yet that is what the learned Judge has in effect ordered them to do here. In fact a compli- ance with this order would be nothing more nor less than compelling them to swear that to b" true which they conscientiously believed to be false — and surely there is no Court that possesses such a power as this. v IN IIK-KSTATK OF UAI.STON. 201 With reference to tlic objection that the Judge of I'rohiito had no authority to try the right of property on the logs in question, I Inust con- fess I have entertained some doubts, but on further reflection I am now enabled to say that I' concur witli my brethren in opinion that the learn- ed Juilge being clothe 1 with the extensive power which the a<'t of 1853 gave him, had a right to conduct the investigation he did in or ler to en- able him to discharge in a proper manner the functions of his office, and having that right, 1 may add that in deciding that these logs belonged to the intestate it does not appear to me, from the evidence before him, that he arrived at an unsound conclusion, liut in regard to the objection to that part of the decree which makes the administrators chargeable with the costs of the proceedings against them in the Probate C^ourt, I am of opinion that as it does not appear that ten days notice, or in fact any no- tice was given to them by the creditor that such proceedings were about to be taken, previous to the service of the citation upon them, as required by the act of 16th Vict, to which 1 have referred, the costs were not properly taxable against them in the Probate Court payable out of their own estate. The costs in that Court as well as the costs in this ought, I think, to be paid out of the intestate's estate. The learned Judge having then made a decree which according to my view is in some respects right and in others wrong, my first impression was that it must necessarily be reversed, but as the statute gives this Court the power " to confirm, alter or reverse," I think the decree may in all respects be confirmed, with the exception of that part of it which directs the administrators to file a further inventory nmJer oath, and that the costs shall be pail out ofthrir oi)i), ./. It is altogether in the discretion of the Judge to direct an jic(]uittal or not at the close of the case for the crown ; but he is bound to do HO after the case for tlie defence has terminated. ] A', (i. IffililiinifHi. The sopurution of the Jury and the con(Uict of one of their number in holding conversations relative to the trial with others tliau Jurors during its pendency is sufficient to destroy the verdict. 1 Vaugh. l')2: 1 Hale, 1*. C. 290 ; Corny. R. 525. The Affninoif (tcnrrul and Fairbunks, Q. C. If there has been a mistrial it comes properly before this Court. It is the duty of the Court to see that the prisoner has had a fair trial and that is a question left to their discretion. The mere separation of the Jury is not of itself sufficient to invalidate the verdict. Nor will the simple fact of a Juryman having l>eld a conversation with a stranger have that effect. The Court must be convinced that the prisoner has beei or may have been prejudiced by what has taken place. Here it does not appear that there was any attempt made to influence the mind of the Juror, and the affidavit produced expressly negatives such a presumption. Ritchie. It is the duty of this Court to interpose to prevent the sen- tence from being carried into execution. We are not now moving in arrest of judgment, that motion has been already made. We cannot bring a writ of error, for that only lies where the facts are stated on the record, and here the record states that when the prisoner was asked why judgment should not pass against him, he said nothing. A pardon by the government presumes a crime to have been committed and will not rein- state an innocent man in his place in the community. The only course open to us therefore is that which we have adopted. The mere separation of the Jury is of itself sufficient to destroy a verdict even in cases of mis- demeanor, and if so a fortiori in cases of felony. Archb. C. PI. 178-198 [American edition] in notis ; Rose. C. L. 178, 241. C. A. V. Hallibukton, C J. The prisoner was tried befor.? Mr. Justice Wilkins upon an indictment of murder, the Jury found hi. guuty, and when brought up for judgment, his Counsel urged the facts .;ated in the following affidavit as a reason why sentence of death should not be passed against him : — 8 206 THE Q[JEKN r.s. JAxMES KENNEDY. i' l:b. I'M' iM i 4 " Nathaiiid Hntfon, of Rawdon, in the county of Hants, farmer, maketh oath and saith. that on the third day of June, instant, at about half- past onp o'clock, Alexander I'attersnn, one of tile Jurymen on the- trial of the above cause, came into MarUfUh'i^ public liouse, when l)ejio)icni and Mr. Patterson, aforesaid, mentioned the subject of tlic al)()ve trial. although Deponent did not attempt to influence said Juror. And Depoiiei,! saith there were other persons who also had some slight conversation with tlie said Patte.rso)t as to the subject of the said trial. And Deponent lastly saith that the said Patterson was not in charge of any constable or any other person whatsoever. HIS NaTHANIKI, X BlUTTOX. MAllK. Sworn to before me, this ith day of June, A. I). 18.57. E. E. Haudino, Commissr. I having ])reviously read and explained the above aftidavit. E. F. Hari)ix(;. Mr. .Jnstiee W'Ulins overruled the objection and passed sentence upon the prisoner, but respited the execution of tlie sentence to communicate with the Judges upon the subject, and an argument has taken place before the whole Court upon it. It lias been suggested that the proceedings are altogether irregular, and that if we consider this as an argument calling upon the Court to deliver an opinion upon it. when a (^ourt of com])etent jurisdiction has already decided the ijuestion and pronounced judgment upon the prisoner, we shall assume a power that we do not possess — but I cannot take this view of the siUyect. It presents itself to my mind as an attempt on the part of the prisoner to get rid of tlie judgment which has been pronounced against him, on the ground that the misconduct of the Juror rendered the verdict of the whole Jury invalid, and consequently there was no legal verdict to sustain the judgment, and it is for the (!ourt to decide whether that be so or not. My brother Wilkins thought there was no weight in the objection, and therefore proceeded to perform the painful duty of passing sentence, but where life was concerned, he most properly respited the execution of it imtil he sought the opinion of the whole C'ourt. The prisoner's Counsel contend — first. That this is a mistrial; second, That in capital cases the prisoner cannot be tried again. Upon the first objection there can be little doubt that when a Juror has separated from his brethren, and conversed with others upon the subject of the cause on trial in a way calculated to influence him in forming an opinion upon it, it amounts to a mistrial, let the consequences be what they may ; but it is of importance to consider the reason upon which this rule prohibiting a .lumr to converse with others is founded, and to ask TIIK (il.J'lKN -s. J.UIllS KI'INNKDV. 207 UITTdX. . ommiss r. ourselves the question w lietlier the spirit of it is violated by what is stated to have piisseil in the affidavit produced. We must recollect that much y;reater strictness. I mij^ht say severity, prevailed in dealing with Jurors an 1 conducting trials formerly than in the present day. It is within the recollection of many of us that, even in civil cases, a Jury when once sworn, were cut oH' from all communication with others until they pro- nounced their verdict, and we look back, not without some surprise, at the labors and harshness they then underwent. A more common sense view is m)w taken of the subject, and where the trial of a cause occupies more than one day. Juries are now permitted to separate in civil cases, untd the cause is i^iven them in charge by the Court, and I see no objection to extending that practice to criminal cases, with the usual warning not to converse with others or allow others to talk with them, upon the subject of the trial. This is a great improvement upon the practice which formerly prevailed when exhausted Judges gave instructions to exhausted Juries. Tiie same sound sense prevails in the construing of all rules which are established for the regulation an I government of the coniluct of Jurors, and the solemn course of justice in criminal eases is not now interrupted by a rigid adherence to the letter of a rule while its spirit remains inviolate. liCt us then examine this afhdavit and see if any facts are stated in it which authorise a belief that anything passed between the Juror and others, which were likely to influence his opinion in forming his verdict, and in considering this, we are to remember that it is introduced by the prisoner's Counsel, mIio was not likely to omit anything that woulil strengthen his application in the prisoner's behalf. Now the deponent states that at about half-past one on the day of the trial, and it ai)])ears by the minutes that the Juuge at the end of the pros- ecution had given the Jury leave to retire for half an hour, the Juror, /V(/^>/'.so;i, '• came into Mcllridc'ti public house, when he and deponent mentioned the subject of the trial, but deponent did not attempt to influence the said Juror, and deponent saith there were other persons present who also had some slight conversation \\ith the Juror as to the subject of the said trial" — this is the t^um and substance of the affidavit, — a passing observation that it was a serious charge, — the very mention of the circumstances that such a trial was going on, would satisfy the words of the affidavit, and would it not be trifling with the administration of justice to set asitle a verdict solemnly pronounced for such a cause. If this were the law, a Juror might be purposely way-laid on his passage from the Jury-box to the Jury-room, and a passing observation made to him respecting the trial for the very purpose of bringing forward such an objection to the verdict We not only may, but must infer that the Juror was not influenced by what passed upon this occasion, and therefore as MW f m in i.: ! 208 THE QUEEN rs. JAMES K1'-NNET)Y. IIP m |:f 11 Pll'. I I 1 1 i!l ■ - ! the spirit or the rule was not violated, that objection cannot prevail. This renders it unnecessary to decide upon the second objection. The language of that able lawcr, Mi\ .histirr Sfnrjj, who was an orna- ment to the profession and an honor to his countrj', is very applicable to cases of this nature. In the case of the rnitorl States vs. (hibrlrl Val — ('? Sumner) he says — " It is not every irregularity of officers, which would justify a Court in netting aside a verdict and granting a new trial, or treating the matter as a mistrial. The Court must clearly see that it is an irregularity, which goes to the merits of the trial, or justly leads to the suspicion of an im- proper influence or efl'ect on the conduct of Jurors. AVe must take things as they are in our days. Juries cannot now, as in former days, be kept in capital cases upon bread and water, and shut up in a sort of gloomy imprisonment with nothing to occupy their thoughts. It would probably be most disastrous to the administration of justice, and especi- ally to prisoners to attempt, in these days, the enforcement of such rigid severities, so repugnant to all the usual habits of life." But I do not regret that this case has come under the consideration of the whole Court, for I entertain great doubts whether the facts proved against the prisoner amount to the crime of murder, and I should have been much more satisfied with a verdict of manslaughter in such a case. The whole transaction passed in a few minutes, I might say seconds. The deceased, who complained of being robbed, suddenly enters the house where the prisoner lodged, and asks the prisoner, who is standing at the top of the stairs, if he has got his (deceased) money — to which the prisoner replies, if you come bothering me about your money I Avill do something to you, and immediately threw out of his hand a piece of iron, about 4 or 5 feet long, which (I understand from my brother Wilkim who tried the cause), had been the handle of a frying pan, which struck the deceased on the head, and fractured his skull. This is very like Sarah Jlazi'l's case, mentioned by my brother Bliss at the argument, where a mother-in-law threw a stool at her daughter-in- law for knotting some skeins of yarn she had been employed to sell. which struck her on the temple and killed her, which was argued before the Court of King's Bench, but on which the Court pronounced no judg- ment, and after the prisoner had been confined for the space of twelve months, she received the king's pardon. Now if Lnril Mansjicld^ Mr. Jiisticp. Jhdlpr, and the able men who com- posed the Court of King's Bench in that day, had so much doubt whether the prisoner in that case was guilty of murder, that they preferred recom- mending a pardon to pronouncing a judgment against her, we may well be justified in expressing our doubts upon this case. The handle of a THE QT'EEN rs. JAMKS KENNEDY. ;>0l) frying pan was not more likely to produce death than a stool — -both were thrown with temper, and unfortunately struck the parties in the head and produced death, though neither were, strictly speaking, deadly, but from the effect it appears that they were dangerous weapons. It is evident from the charge of the learned Judge that he viewed tliis as a case in which it was open to the Jury to find a verdict of manslaughter, and Juries are in general so happy to avail themselves of this altc-rnative, and to be relieved from the stern necessity of pronouncing a verdict of guilty in capital cases, that I am rather surprised they did not do so upon the present occasion. Perhaps they were imconsciously influenced by feelings which cannot at all times be prevented from finding their way even into the Jury box, but which it is the duty of a Court cautiously to guard against participating in. I doubt not that the learned Judge, when he reports the case to the Governor, will mention the doubts entertained by his brethren on the subject, in which he himself participates ; and in this case, the capital sentence will not, can not, I should think, be ex- ecuted. The prisoner will not, however, escape all punishment, for although we, as a Court, cannot substitute a conviction of manslaughter for one of murder, yet His Excellency can pardon the offender, who has been convicted and sentenced for the latter crime, on condition of his con- senting to undergo the punishment directed for the former, as the statute authorises a conditional pardon. As it respects the objection that the prisoner, Mai-y Gallmjhcr, indicted with Ke>iiie, tliat the application to a Judge in the course of a cause to direct a vervlict for one or more of several defendants in trespass, is strictly to his discretion, and that dis- cretion is to be regulated, not merely by the fact that at the close of the plaintiff's case no evidence appears to effect them, but by tlie probabi- lities whether any such case will arise before the wliole evidence in the cause closes. There is so ])alpable a faihire of justice when the evidence for the defence discloses a cuse against a defendant already prematurely acquitteil, that such, accjuittal ought never to take place, but where there is the strongest reason to believe that such a consequence cannot follow. And in White vs. HiU, (1. Q. B. il. 490, already cited, Ikittemon, J. refused as the Judge did here, to direct the acquittal of one defendant at the close of plaintiff" s case. Now if it be discretionary with the Judge in a case of trespass, to direct an acquittal or not, in this stage of the cause, and that discretion is to be exercised with great caution, a fortiori THE UUKKN <.s. JAMES KEN.NEDV, 211 will this apply to criminal trials : In a capital case siich as this tliere is scarcely room for supposing that the indictment could have, been so drawn to include a party expressly to shut out his testimony in favor of another prisoner. And the very circumstance of an indictment by a Grand Jury, which should only be found upon at least n pnina/arie case of ^uilt against all, distinguishes the c-ase somewhat from a civil action, and seems to call for a more guarded discretion on the part of the Judge, lest an accomplice in crime escape through an unfortunate and premature acquittal. Even where there is no direct evidence to affect one particular party, there may be much to excite suspicion and lead the Judge to think that all perhaps has not yet been disclosed, that something still lurks be- hind, and may well induce him if not wholly to refuse, yet to delay the acquittal till the last, that the criminal justice of the country may not be defeated. Clonsidering the close and intimate connection which then subsisted between the two prisoners — the one as we may suppose the paramour of the other — and the language which this woman had used after the deceased had been killed, which possibly, might be construed into a guilty knowledge of the intention of tlie other to do that which afterwards took place — I cannot say that the learned Judge did not act with a precedent discretion in rejecting the application at the time it was made. Had it again been addressed to him when the evidence on the jiart of the defence had been all closed, he might perhaps have considered that the danger of an improper acquittal no longer existed, and lif might then have directed it to take place. The application \\ as not however then renewed, antl the objection arising out of this circumstance. 1 there- for consider of no weight to afi'ect the verdict. The next ground of objection to be considered is the misconduct of the Juror in separating from his fellows during the trial, and conversing with others. During the course of the trial, as I understand, a sliort recess took place with the assent of tiie Judge, on which the Jury were permit- ted to retire, and on this occasion it appears that th' alledged misconduct occurred ; the whole facts as far as we have them are stated in the athdavit oi X((fhanlel livittun. This affidavit merely states that during the trial the Juror, not in charge of any officer or other person, came into a public house where he and the deponent mentioned the subject of the trial, though the deponent did not attempt to influence tiie said Juror, and that there were other persons present who also had some slight conversation with the Juror as to the subject of the trial. Now I think we must assume that an affidavit brought forward as this has been, and for such a purpose, has stated the case as strongly as it was ca{)al)le of being put consistently with the fact, and that if it would have aided the prisoner to have had the very purport and language used on this occasion either by I!' ■ ;ll'^ 212 THE UUEKX rs. JAMES KENNEDY. ; 15 Mf'Sfe.v,>'ijl the Juror or addressed to him, it would not have been withheld. I cannot look upon it as a very ingenuous account of the transaction, and I confess it has not the appearance of fairly disclosing all that occurred. The most trivial observation tliat ha I reference to the trial — the most innocent casual passing remark respecting it, would satisfy this affidavit. An inquiry if tlie trial was still proceeding and a simple answer that it was, or other remarks of no more moment or effect, as in the remotest degree capable of influencing the mind of the Juror, may have been all that occurred. Nothing is of more importance, I admit, than to uphold the trial by Jury in its utmost purity. It is for this purpose and to this end that in these capital cases, the Jury is forbidden to separate, lest during the interval any thing should occur, by which an undue bias may be produced in any of their minds. And the violation of this rule, or any other im- proper act or conduct on their part may be visited by suitable punishment. It may also have the eff'ect of altogether vitiating the verdict which they may afterwards give, and I have no doubt that in criminal cases, more especially too when the life of a party is at stake, the misconduct of the Jury or any one of them, may particularly call for this exercise of the power of the Court. But it is to be exercised, as any other of its powers, not arbitrarily, but on sufficient grounds and with a sound discretion. A Juror may ignorantly, incautiously, or from necessity separate himself from the rest, without a possibility of that circumstance liaving any effect on the rectitude of his conduct in other respects, and of the verdict which he gives. It would be too much I think to hold that such an act would vitiate the verdict. If when so absent an unimportant question or remark was addressed to him, and as unimportant an answer was returned, this alone I think should not have the effect of nullifying the subsequent verdict. What then is the rule upon which sound discretion should in such a case rest its decision ? It is this — that the misconduct or irregular and im- proper conduct of Jurors will only have the effect of vitiating their verdict, where it is such that the result of the trial has been influenced by it, or where there is any sufficient, fair, reasonable room to believe that such influence or effect has been produced by it. And this, it appears to me, is the true principle to be collected from the cases in our own Courts upon the subject In the United States they appear to have carried it to an extreme aii nreasonable length; and in their great desire to guard the purity of ju to have lost sight of justice itself. If misconduct on the part of Jurors, short of that influence in its consequences which I have mentioned, is to have the effect of setting aside a verdict, and putting the prisoner again on his trial, giving him one more chance of escape, it must be recollected that the same rule will act also to the prejudice of prisoners, n-. -■ : ':.^ THE UUEEN rs. JAMES KE.N^EDY 213 causinf; them to be put again on their trial with anotlier chance of convic- tion, after they have been already acquitted. For the Crown as well as the prisoner must have an equal right to set aside a verdict vitiated by the Juror's misconduct. And 1 cannot say that if the misconduct, not modi- fied by the rule which I have stated, is to have such results, that it would not be found much oftener prejudicial to, than for the benefit of prisoners. Being then unable from the conchict of the Juror in this case, as we have it disclosed in this affidavit, to sec that the ultimate issue of the trial was 01' could be in any way affected or influenced by it, I do not tliink this ground a sufficient one for setting aside the verdict. A third objection was also taken bv the prisoner's Counsel — though 1 do not know that much importance was attached to it by him. I cer- tainly do not consider it of any weight. My brother Wllkins in passing the usual sentence of death on the prisoner, used tliese words: "that you be taken to the place of execution at such time as His Excellency the Lieut. Governor may direct," &c. Executions do in point of fact depend in this Province, on the fiat of the governor : when or by what authority this became the usage I am not prepared to say — probably under some of the royal instructions. These, however, are not often made public, or put within reach of those whom they most interest, or who at least may require a knowledge of them ; and I tliink it would be always more prudent if full publicity was given to them. In the earlier history of our Courts, when a capital sentence was pronounced, the day for carrying it out was also fixed by an order of the Court itself. And in one case, as late as 1816, 'The Kinc/ vs. McGrath, rl. al. for the murder of Capt. WeHtniouth, the day on which the execution Avas to take place appears to have been stated in passing the sentence itself. Since that I find the practice has been changed — and the warrant for execution is issued from the Court, and the time and place of execution is endorsed on it by the fiat of the governor. When the Judge, then, in pronouncing the sentence, used this expres- sion, he did but declare what was strictly correct. The sentence itself was complete without it — nor did this add thereto or diminish therefrom — it was not essential to it, nor could it affect it. It was but a statement parenthetically made, sis to its time of execution — just as in the case of The King vs. McGrath, which I have mentioned, the very day itself of the execution was stated in passing sentence. But though I have thus given my opinion upon the several points which hjive been brought before us, I must own that I still entertain great doubts as to the Court possessing competent authority to hear and decide them. With respect to the alleged exclusion of the evidence of the jirisoner, M■<,. JAMKS KMXNKDV d() it upon tlic authority which the Court posscsHes of interposing whero it considers justice ho requires, to correct wluvt is wrong and supply ft proper remedy. Now that would equally authorise us to interfere and set aside a verdict when material evidence hat been incorrectly admitted or rejected, or the verdict had been manifestly contrary to the evidence, or upon other like grounds, which the Court has clearly no power to do in any capital case. The only remedy which the prisoner in such case has, being an application to the Crown for a pardon. An inadequate one it may be — but the law gives at present no power to the Court of setting aside a verdict in such cases. We can only do so, then, as I conceive, upon some grounds apparent on the record which renders the whole trial vicious. And if the alleged misconduct of the Juror had here been so set out on the record, and we should have been of opinion that it amount- ed to a mistrial, the effect would be what the prisoner's Counsel by no means seek or desire. 3!r. liif.chie argued that we had nothing to do with ulterior consequences which might result from setting aside the ver- dict ; — that if it was bad from this cause, our simple duty was to set it aside, and then, adopting the maxim that the prisoner could not be tried a second time, that he must be disdiarged. But as we have seen, the very ground of sotting aside the verdict in such a ciisc, is that it is a mis- trial — a nullity — one in which the prisoner was never in jeopardy of his life. He is, therefore, remitted to the position in Avhich he stood before this took place, and he is now to be tried as if for tlie first time. I have stated my views somewhat hastily upon this point, which may be of no little importance iipon future proceedings, perhaps, in om* crim- inal practice, though from what I have already said of this case, we have no necessity to decide at present, whether the misconduct of the Juror."* when there is no other irregularity, will in capital cases be a sufficient ground for directing a renire dc nnrn. As, however, some doubt may be entertained, whether upon the whole evidence in the case the prisoner ought not to have been convicted of manslaughter only, 1 concur with the (!hief Justice, and I believe the rest of the Court in thinking it a fit case for a recommendation to the Executive for a commutation of the sentence under the 1 68 chap, of the revised statutes. I' * It an DesBarres, ./. I concur with my brethren in the conclusion they have arrived at. The main ground on which this application rested — the separation of the Jury — seems to me to have entirely failed. There was nothing in tlie affidavits to show that anything had taken place which could have affected the judgment of the Juror. Indeed the presumption which naturally arises from th« circumstances mentioned in that affidavit, THK QUKKN rs. JAMKS KMNNKDV. 217 is that the conversation amounted to nothing at all. Had it l)een of any importance it would have been detailed. It Ih I think doubtful whether the evidence given at the trial warrants a verdict of murder: the Jury ought in my opinion to have pronounced a verdict of manslaughter. WiLKiNs, ./. The Judge who tried this cause, and who pronounced the sentence of the law upon the prisoner Kfiincdy, reserved for con- sideration of the Court an objection to the verdict which was made by the prisoner's Counsel on the ground of misconduct of the Jury ; and, in the last Michaelmas Term, objections of a sweeping cliaracter, were urged against the judgment, the sentence and tlie record, whilst, however, the particular grounds taken were as follows, viz : — The improper rejection of evidence ; misdirection ; that the verdict is against law and evidence ; and, that the sentence is not in accordance with law. No formal rule v!s! was submitted to the Court, and moved for, though, in strictness, that course should have been pursued. In a capital case, however, a mere technicality should never be allowed to exclude a prisoner from the benefit of substantial defects in the proceed- ings against him if they really exist ; and, without stopping to inquire whether some of the grounds taken can regularly be entertained other- wise than under a writ of error, I proceed to consider seriatim the objec- tions which have been thus taken. It will be most convenient to discuss them in the following order : — tik i!; I Jhp'. k 1. As rosppcta the sentence. 2. The alleged improper rejection of evidence. !}. The misconduct of the Jury in relation to their verdict. 1. That the verdict is against law : and herein of alleged misdirection. As to the sentence : •— The prisoner's Counsel argued that it should have been conformable to the English statute. 25 Geo. 2, c. 17, § 1. But, first, the particular pro- visions of that statute could not be carried out in Nova-Scotia ; secondly, the statute extei.ds to Great Britain, and to Great Britain alone ; and, thirdly, the sentence is substantially in accordance with established and invariable usage in this colony, for the last forty years. This the records which I have inspected show. In one respect, perhaps, it differed from judicial practice, viz : in regard '.'3'i lis •mi", QlllKN >. .lAMKS KKNNKDV. i ill ?f '<: '•« i'-.4f'-4 t.t tin tiuic ol ( MditioJi Wcing, (/( /Ac sriili-iiif, Muulc to depend on tlic pifttsurc of tin* Kxeciitivc, wlicreuH the iisiiul prutticc Iuih been to give judgment of aiis. /ht. roll. j^eneruUy, the Judge respited until the will of the Lieut. CJovernor be signified. Hut time of execution is not mude by statute it/ thr I'nnnire of I lie smtfiirr, therefore, this variance, if it be one, from tin- ordinary form, to which it accords in substance, must be perfectly immaterial. Ah to the refusal of the Judge to order an acquittal of the prisoner (/t(lliii//ii-,\ at the close of the prosecutor's case, in order to render her available as a witness for her fellow-prisoner : — In Arch. Cr. PI. and Kv., p. 102, the rule with regard to acquittal of a co-defendant is thus stated : — " It sometimes happens that the prosecutor, in order to exclude tlic evidence of a material witness for the defendant, prefers his indictment against two jointly. If, therefore, in such a case, no evidence whatever be given to affect the person thiin nnjiistlij made a defendant, the Judge, in his discretion (Holt 271) may direct the Jury to acquit him. in the first instance, so as to give an opportunity to the other defendant to avail himself of his testimony."' Gilb. Ev. (Deft.) 1 vol. 2o0. Bui. N. P. 285 ; 1 East. 313, n. That the Judge has no discretion, if there be the least evidence, though not enough to convict, authorities ancient and modern agree. In the passage above cited from (rillicrt'ii Evidence, the rule is thus qualified : — " But it must be understool that where there is any evidence against one, though in the Jialge's ojjinion not enough to convict him, yet such person can be no witness for tlie other, for his guilt or innocence must await the event of the verdict, for the Jury are the judges of the hct, and not the Bench." If the rule announced in Child vs. Clunnhrrlain (1 Mood. & Rob. 318, S. C. H. L. and P. 213 — "to the efi'cct that the verdict of ac.y.it'ttl of a co-defendant against whom no evidence appears must be t'lkon at the close of the plaintiffs case'") — really was made, and that it was so, notwith- standing Lord Dcnmaii'n declaration to the contrary, 16 Q. B. 491, Wlilti' vs. Hill, see the statement of Alderson, li. {HaiDkesworth vs. Shouier, 12 Mee. & Wels. 48), and that of Colcridi/e, J. ( Wakenuin vs. Lindsnij, 14 Ad. & Ell. N. S. 625), — it was a rule that in terms referred to casi' and trenpasn, and the very latest treatise on criminal law and cvidenco states the rule with regard to the Judge's discretion, as it is stated above from Archbold. With regard to the particular case I think the Judge, under the evi- dence as affecting (lallacihvr. exercised his discretion correctly in refusing THK Ql'KKN rs. .lA.MKS KKNNK-DY 210 to direct her acquittul, at the close of the prosecutor's case. The facts which at that stage of the investigation atiected this prisoner were as foUows : — The homicide wuh commiftc.I in her house in which the other prisoner (hvclt ; she hud left it imincdiiitely before the deceased entered, in fact whilst he was entering, and had denie I that Keitnedif was therein, though she could scarcely have been ignorant of the fact. He was seen in her hcil-room just previously to the entry of the deceased and his companions. There had been an altercation in her house between her and the deceased, on the subject of the lost money, a few hours before the homicide. On the afternoon of that day. a woman and a man were seen "scuffling" close to Mrs. (iailiiifhtr's house, and those two persons were seen to enter Mrs. YdhcWs, by a witness {Martin) who saw the deceased afterwards come out with Smitli and go into Mrs. (inl/o (/tier's — whilst this same Smith testifies that the deceased ritmi- into Mrs. YoncU's and said :u> had lost his money.' Mrs. Gallajihrr, whilst deceased lay at her feet after having received the fatal wound, used these coarse but suggestive words, '* if the b r had minded what I said, he would not have been in this state." This same woman, after the homicide, handed an axe to her co-prisoner, saying " damned fool you'd be not to protect yourself." The Judge's discretion was not again appealed to. Had it been, at the close of the whole case, he would have had to consider whether his per- mitting to enter the box as a witness for her co-defendant, one who, from licr proved connection with the circumstances of the case, had a strong temptation to cover his guilt by perjury, and who might possibly have established her own without perjury, and that after her acquittal would be c.onsomint to his duty. I'ossibly, as no lr;ial evidence against her existed, he would have been luiiind to direct her acquittal had it been then applied for, though I find no autliority for this, except what the analogy of practice in civil cases, may be supposed to afford. But, in those, if no evidence appear against a party, the inference is necessary that he has been put on the record for the purpose of excluding his testimony, whilst it is not so in a criminal case, for the Judge may be morally convinced of a particular defendant's iijuilt, and satisfied that he was properly joined in the indictment, though he perceives no li'i/al evidence tending to his conviction. The facts affecting (Hallaffher, in connection with the place, and the perpetrator of the homicide, warranted the finding of the Grand Jury, and preclude the supposition of her having been arhitrnrih/ made a dc- fi'iidant for the purpose of shuttiiir/ out her testimony. It is true that wherever a co-defendant is ordered to be acquitted in anticipation of the general verdict, his credit is left to the Jury, how strong 1; m 1. Il I 220 TllK lilKllX '-.s. JAMES KKNNHDV. 'l^ 'ii-; •l -ir soever the Mas on liis mind may be : and I entertain not the least doubt that if, on a criminal trial, a Judge were to refuse to direct an acquittal, for tlu' purpose of evidence, of a co-defendant against whom there appeared neitliei' legal proof, nor iiiorcil iinpHcafion, his decision would be considered so repugnant to justice, that a verdict against the other prisoner would be unhesitatingly set aside. I have gone, vmnecessarily, perhaps, into a consideration of what the (hity of the Judge would have been had a motion for acquittal of Gallar/her, with a view to her testimony, been made, at the close of the whole case : but, I have done this from a reflection that, if it would have been cither the duty of the Judge, or a wise exercise of his discretion, to have placed this woman in the box after the whole evidence had been received, it might be a subject of regret, now, that his solemn deliberation upon the pro- priety of ordering her acquittal was not invoked, at the stage of the causa last referred to. I venture to think, hoAvever, that the ends of justice in the particular case ^"ve not suffered from this omission. On the point of misconduct of the Jury, and consequent irregularity in the verdict, and herein 1st. As to the mere separation of the Jury : — The English authorities on the general question are scanty, as well as ffimiliar to the profession ; and we must receive with caution those derived from reporters of the U. S. Courts, from the peculiarity of the laws, and the diversity of practice which prevail in the different States of the Union. In 2 Russell (by Greaves) 786, it appears from a note by one of the learned American editors, " that in the United States a new trial is granted to the prisoner in capital cases, for any cause which would be sufficient in a civil action, or on a conviction for a misdemeanor." A note in Arch. Cr. Prac. and PI. 178-200, was referred to, at the ar- gument, and is as follows : — '* Whether the mere separation of a Jury in a criminal case, is, of itself, sufficient to set aside a verdict, is an open question, and one by no means authoritatively settled. In civil suits and small misdemeanors, the preva- lent authority in I'lngland is, that the separation of the Jury is not sufficient to set aside the verdict, {/i'x x. IVool, et kI., 1 Ch. 401.) In cases of felony, however, the Courts, especially in tliis country, seem inclined to adopt a stricter rule. It is frequently stated in the authorities that in modern times the antiquated strictness of the law has been much relaxed in this regard, and that in no case is it necessarily wrong for a Jury to disperse, with, or without, leave of the Court, during the progress of the trial." I learn also from the text book last referred to. '* that in a note td %n ■ ■ ,•• lit rHK Ql'HHN /.S-. .lAMKS KENNEDY. 221 Smith vs. Thnmpmn (1 Cowen 221) by the learned reporter, all the casea, Enp,lish and American, are collated, and that the conclusion of the review is. that the propriety or impropriety of keeping the Jury together, in each j)articular case, is a matter resting pretty much in the sound discretion of the Court." "It is not every irregulariiy of the officers," says Mr. J. Story, in U. S. V. (iilherf, ef. al., 2 Sumn. 83, " which would justify a Court in setting aside a verdict, and granting a new trial, or treating the matter as a mistrial. The Court must see clearly that it is an irregularity which goes to the merits of the trial, or justly leads to suspicion of improper influence, or ctfcct, on the conduct or acts of the Jurors. " We must," he adds, " take things as they are in out days," and then, anticipating it >vould seem the enlightenment of later and wiser days, he proceeds, " Juries cannot now, as in former ages, bo kept, in capital c ses, upon bread and water, and shut up in a sort of gloomy imprisonment, with nothing to occupy their thoughts. It would, probably, be most disastrous to the administration of justice, and especially to prisoners, to attempt the enforcement of such rigid severities so repugnant to all the social habits of life." In Hex. v. Kiniieur, 2 Earn. & Aid. 462, which was a trial for ronspi- racy, the Court remark, " The proposition that mere separation, in case of a misdemeanour, should avoid a verdict, was startling, because if a separ- ation for a night would have that effect, so would a separation, from abso- lute necessity, for a few minutes, and the eiTect would be to avoid a verdict, at the instance of the Crown, as well as at the instance of the prisoner." /l(',s^ ,/., observed, in that case. " That in the case cited from Palmer, the separation took place affcr thr Jtirij ircrc charged.''^ Lord Cokeys oft quoted rule (Co. Litt. 226) also refers to eating and drinking, &c. after tlip Jnry arc rjonefroin the box. And Mr. J. Story, in the case which I have noticed from Sumner, remarked, " the indulgence, ceased the moment (ho charge was given, and the Jvry were then pnt upon their own solemn and exclusive ddiherations upon the case.'' So that there would really seem to be a substantial distinction in regard to the question under con- sideration, whether the irregularity took place before, or after, that stage of the trial when the Jury are, by the charge of the Judge, " put upon their own solemn and exclusive deliberations upon the case submitted to them." Westminster Hall furnishes no authority for the position that mere separation of the Jury in a capital case, avoids a verdict, and I think that reason and convenience are against it. Secondly. As to the objection, so far as it rests on communications alleged to have been had with a Juror, during a reeess which nmirred Ai tlie trial : 10 i:< 1 ■fi If PHI I 2'i'J THE QIEKN >;. JAMKS KKNNKDV. !i' u i r- f V la If 1 After reading the affidavit of Nathaniel Jinftnn in support of this I would ask. adopting the test of Mr. J. Storif, whether the Court can clearly see " that the irregularity is one that goes to the merits of the trial, or justly leads to the suspicion of improper influence, or effect, on the conduct, or acts of the Jurors," Dvponerit says that Patterson^ the Juryman, " inevtioned to him thv sybjevf of the trial,'' but, in what respect this was done we are not told, though deponent could have informed us : and we may reasonably conclude he would have done so, had the subject been alluded to in any improper, or mischievous, sense. A remark by the Juror " that he was engaged in a solemn trial,"' would entirely satisfy the allegation made by Jirittov. The latter swears ''^ that he did not at- tempt to influenvv the Juror.'' In what respect, then, could this mentioning of the subject of the trial affect the purity of the verdict ? The " slifjhi ronjcrsation '' inhirh, the deponent alleges, some other person present had with the partirnlar Juror above named as to the std)jrct of the said trial," might also have been detailed, though the particulars of it are withheld from U6 ; and I cannot but feel that the argument against the validity of the verdict would have come to us with more force, had the deponent merely observed this Juror engaged with these persons in a conversation the nature of which he cculd not disclose, because he did not overhear it. He could not be in a condition to state as he has stated, " that it tvaa a sliyht conversation," without being necessarily aware of the character, and details of it, which, however, he has not thought proper to communicate. A precedent annulling the verdict, under the facts set forth in the affi- davit in question, in which nothing is shewn, or can reasonably be inferred, to impeach the purity of the Juror's conduct, would, in my opinion, tend to inar the ends of justice, by constraining Judges to entertain specula- tions upon small and remote possibilities of corruption ; and, instead of its having a beneficial influence upon the future administration of justice in criminal cafes., it would, for obvious reasons, injuriously affect it, and might operate prejudicially even to the interests of prisoners themselves. A distinction, indeed, was endeavored to be shewn, at the argument, be- tween setting aside verdicts in capital cases, at the instance of a prisoner, and on behalf of the Crown, but I have not heard, nor discovered any authority in English law, that will support it. The annals of British criminal trials record conditions of social life when such a distinction might have been safely, and advantageously, recognized ; but it is, surely, unnecessary in the enlightened days in which it is our happiness to live, when the Sovereign is the benign parens patrice, and wheii British Courts administer equal justice to the queen, and to the meanest of her subjects. I conclude, therefore, that, assuming misconduct of the Jury, not apparent on the record, but shewn THE QUEEX cs. JAMES KEN.XEUY. 223 by evidence extrinsic to it, could be regarded us amounting to a iiiislrial, there has been no mistrial in this case, and that there is, in respect of the particular point which we are now considering, no ground for setting aside the verdict, and ordering a rvnirc de novo. It is evident, I think, though it is not necessary to decide the point, that nothing short of such an irreg\darity as would, in its legal effect, annul all the proceedings on the record subsequent to the award of the Jury process, would warrant the Court in thus subjecting the prisoner to a second trial. Unless the first trial could be regarded as an ohsolute nullity, the pri- soner's life has been in jeopardy, and it could not be imperilled again. As to the objection that the verdict is against law, and to the point of misdirection which is involved in that objection : The evidenci si'ows that, at the time when the deceased and the two persons tlui! ..V". lied him entered abruptly (if not violently, certainly without auth..' tv ji license) into the prisoner's abode, the latter was seen in Mrs. Galldgher^s bed-room, below stairs, not armed with a deadly weapon, but havmg a fragment of a brick and the back of a chair in his hands. He would then appear to have immediately retreated up stairs. Whilst there, words are addressed to him by the deceased, which he would naturally construe as imputing theft to him, especially as in that very houset on that very (iay, and at a time when he was probably there, an altercation on the subject of the lost money, had taken place between Mrs. Gallagher and the deceased. Under the circumstances, then, of the abrupt and unauthorized entry into his domicile, and of the provocation occasioned by the words, within the space o*' one minute after the entry, the iron instru- ment casually at hand (for ?; nyduK j that appears to the contrary) is seized by the prisoner, and tlie <' ■ t! \vc ..nd is inflicted. To contend that, in s. •\\ t c - • as this, where no act was done showing an intention on the part of tn .'^Cinsed to commit a felony, or to interfere with the possession of the domicik of the prisoner, or even to assault his person, the Judg'3 ought to have told the Jury that the homicide was jus- tifiable or excusable, is a position which has no authority in law. Cock's case, Cro. Car., 537 ; Foster, 291 ; 1 E. P. C, 288—273 ; Rose. Cr. Ev., 770. But, whether the homicide, under the evidence, amounted in law to nuirr.er or manslaughtc is the important question under consideration. No evidence of p^ ..•■i. yived n-alice in fact, exists in the case. The only \«:;;' on is, whethci .. • inilce must be inferred, from the use of the particvaar weapon under the circumstances. Th5s case does not appear to be marked by circumstances less favorable b) the pk'isoner, as reducing his offence to manslaughter, than those which k 224 THE QUEEN ts. JAMEW KENNEDY. ll ' ii'ill: distinguished the case of the bailiff in 1 Hale, 470, and which is also mentioned without disapproval by Foster, 299, and otliir eminent lawyers. In that case, one who really was a bailiff, rushed into a gentleman's bed- chamber early in the morning, without intimating his business, and the gentleman not knowing him, in the impulse of the moment, sio^ him with his sword, and it was held to be manslaughter only. The ground of the decision is stated to be that the prisoner mat/ have supposed that the deceased intended to rob or murder him. East, in his Picas of the Crown, remarks sensibly on this case, but without questioning its authority, that " There was a manifest want of caution in not demanding the reason of such intrusion by a stranger, especially as some interval must have elapsed before the sword was taken down and drawn "' 1 E. P. C, 273. But no facts existed, and no acts were done < ^a^e, any more than in the particular one that warranted the assump )f the Couut, wUSch induced the prisoner's acquittal, in the former case, oi the higher crime of murder. The Court, in that case, considering the suddenness of the homicide, and the possibility of the prisoner being influenced by fear of a felony on his person, when he committed it, instructed the Jury to find him guilty of the lower offence of manslaughter. Foster is supposed to have thought that a provocation by words alone, would reduce homicide committed on sudden impulse to )iia nslaughter, if the weapon used were one not likely to produce death. See note to Meg. V. Sherwood, 1 C. & K., 556. See that case, also, as to the effect of aggravating words as an ingredient in the case. There Chief Baron Pollock threw out an opinion that, though a slight blow would not reduce a killing consequent on it, and inflicted by a dangerous weapon, to manslaughter, yet aggravating words, coupled with a blow, might have that legal result. The view most against a favorable construction of this prisoner's case, that I have found, is an opinion expressed by Roscoe, in the latest Ameri- can edition of his valuable Work on Criminal Evidence. It related to cases of oflicers slain in an attempt to execute an illegal warrant. He says : " In these cases it tvoidd seem to be the duty of the party whose liberty is endangered, to resist the oflUccr v?ifh as little violence as possible, and that, if he uses great and unnecessary violence, unsuited both to the provocation given and to the accomplishment of a successful resistance, it ivill be evi- dence of malice sn()icient to support a charge af murder.'" Roscoe, 760. But he introduces this opinion of his own by mention of the ca.^ee of I Hale, P. C. 470, (the bailiff's case), and Cock's case, respecting which he says : " These decisions would appear to countenance the position that, where an officer attempts to excc\ite an illegal warrant, and is, in the first THE QUEEN rs. JAMES KENNEDY 22.i instance, resisted witli such violence by the party that death ensues, it will amount to manslmighfer only." And he goes on to quote thus, from Alison, who, in his celebrated Work entitled Principles of the Criminal Law of Scothtrul, writes, "■ The English practice makes such allowance for irritation consequent upon the irregular interference with liberty, that it accounts death inflicted under such circumstances, as manslaaghter only." But, supposing even a doubt to exist about the legality of this verdict, — and the authorities to which I have referred, if not decisive against the finding, clearly raise that doubt — the prisoner must, of course, have the benefit of it, and we must consider him guilty of manslaughter only. As to the point of a new trial, and as to the course to be pursued by the Judge who tried the cause, in relation to the prisoner : ■flie ^hole current of authorities, and all treatises on criminal law and practice in England, recognize the position that where a party charged with a capital crime has been subjected to a regular trial on the merits, and his life, therefore, once been placed in jeopardy, he cannot be tried again. Where a refiular verdict has been found against him which is considered against law, the prisoner, in England, is invariably recommended to the Crown for a pardon. The Judge who tried this cause having been advised by his brethren, in accordance with his own opinion, that the legality of the conviction is doubtful, and that the prisoner should be regarded as guilty of man- slaughter only, would be bound by the authority of English precedents to recommend an uiiqnalijied pardon, but for the existence of a Provincial Statute which seems to have been formed to meet this very case, and, in effect, to provide that a criminal, convicted improperly of a crime for which his life would be forfeited, but really guilty of an inferior crime, should not absolutely escape, but should be punished according to his real offence, and in the discretion of the Executive, within the limits, however, of the term of punishment assigned by law to the lesser crime. I allude to eh. 168 Rev. Stat., § 48. The legal effect of a conditional pardon in the particular case, would be to abrogate the sentence already passed by the Judge, and to substitute a new punishment assigned by the Executive, under the authority of the law to which I have referred. It only remains for me to intimate that the Judge who presided at the trial of this prisoner, will feel it his duty to place himself in immediate communication with His Excellency the Lieutenant-Governor, on the sub- ject respecting which the opinions of the Court have been thus pronounced. 122(} GENERAL RULES. GENEKAL RULES. MICHiELMAS TERM, 1867. It is Obskbed, That in future the Court, on the first day of each Term in Halifax, after motions apd other necessary business have been disposed of, will hear arguments upon the cases duly entered, as has been hereto- fore done on the subsequent days of the Term. It is OaiiEBED, That causes entered for argument and continued over the Term, shall in all subsequent Terms retain the places they originally occupied on the docket, and take priority of new causes, and new causes shall be entered as heretofore. ^ r 'if: It is Obdebed, That section 251 of the New Practice Act be herewith thus modified : The notice of trial to which that section applies, in case of continued causes, instead of being given for eight days, fourteen days, and twenty-one days, as herein s*^^ated, shall be given for tioenty days, thirty days, said forty days, respectively. It is Obdebed, That hereafter all continued J .»ry causes for trial be entered with the Prothonotary on the Tuesday preceding the first day of Term, .;- ''.ad of the Thursday preceding, as at present. And that hereafter all new Jury causes for trial be entered with the Pro- thonotary on the Tuesday preceding the first day of the sittings after Term, instead of the Thursday preceding, as at present. By the Court, J. W. Nutting, Prothonotary. 30th November, 1857. ;||.' rRACTICK CASES. Decided at Chambers. September 22, 1857. — Before Bliss, J., and Wilkins, ./. CREIGHTON v, MOORE, et al Where puisne mortgagee forecloses, it must, in the first instance, be referred to a master, to find what is due to prior incumbrance!. This was an application by a puisne mortgagee on a default, for atl order for the foreclosure and sale of the premises. The prior mortgagee had been made a defendant in the suit, and had not appeared. Lynch. The order is for the sale of the premises subject to the prior mortgagee's claim. [Bliss, J. Has any notice been given to him of this application ? ] None except the service of the writ. Bliss, J. I think your order ought to be to have it referred to a mas- ter to find what is due on the first mortgage. If the first mortgagee does not go before the master, and you are unable to obtain a report of the amount due, you may then apply to a Judge for an order of sale, subject to prior mortgage. Wilkins, J. I think that before puisne mortgagee forecloses, he ougiit to give notice to prior mortgagees of his intention to do so. Order granted to refer to master. BEAMISH V, CITY OF HALIFAX. When a party applies to the Court to prevent another from doing an act which will be injurious to his rights, the injunction asked for ought not to require the other party to plead. Theke was a writ of injunction in this case, to prevent the City of Halifax from filling up a dock on the north of the plaintiff's wharf. McGulhj. The claim put up by the plaintiff is so indefinite that it will be almost impossible for the defcrdants to plead to the writ. If the plain- tiffs have a right to one foot, the defendants will be defeated, though they have the right to all the rest of the dock. I therefore ask the Court to Compel '■ti #■ i-r 22R MlKPnV rs. TUaNHOLM. ))laintiff8 to amend their writ, under sections #58 and 59 of the Practice Act. [Bliss, J. I do not see that you are compelled to plead at all.] The writ calls upon us to do so. Eitrhie, contra. This is not an injunction under 18th Vict., cap. 23, § 25. Here there is neither a breach of contract nor any injury sustained, in respect of which an action might be maintained. The writ ought not, perhaps, to have called the defendant to plead. It has now accomplished its object. Bliss, J. 1 do not see that a writ was necessary in this case. The affidavits are in the nature of a writ. The rule must be discharged, but without costs. t t .ir October 27, 1857. — Befoke Halliburton, C. ,/., and Bliss, ,/, MURPHY V, TRENHOLM, et. al When the sufficiency of the affidavit to hold to bail is attacked, the rule is to set e opposite party may know Avhut he is to meet. This has not been done, and the order must, therefore, be discharged, with costs. tH H 1% 'F ^ r. March 16. — Before Bliss, J. NORTHUP V. JEAN. This was a suit for foreclosure and sale. It appears that there was a balance due to the plaintift' after the amount received by him from the Kale of the land. McCnlbj moved for leave to issue an execution for the balance. Bliss, J. I think your application ought to be for an order to show cause why an execution should not issue for the balance, and not an order absolute in the first instance. Order nisi granted. ERASER V. MORROW. A party cannot attach debts of an English bankrupt after tlie fiat of bankruptcy is issued. The defendants in this cause being indebted to the plaintiff, and being out of the Province, the plaintiff caused a debt due by one Purvis to the defendants to be attached under the Absent and Absconding Debtor Acts, on the 23d November last. On the 17th day of November last, the de- fendants were declared bankrupts in England. Sutherland moved for rule nisi to have the attachment set aside. Solicitor General, contra. This is not the proper time or place to make the present application, for by the 9th section of chapter 141 of the Revised Statutes, the party objecting to an attachment is to apply to the Court to set it aside ; and there is no authority given to a Judge sitting -i:. DONOHOE r. RORDEX. 2.13 at Chambers to make such an order as is now asked for. [IlALLintru- Tox, C. J. It is more convenient that these applications should be made here than in Court. ] The proceedings in this case can only be attached by the assignees of the bankrupt, and they must then bring themselves within the scope of the 8th section of chapter 141 of the Revised Sta- tutes. They are only entitled, under that section, to dispute the validity iind effect of the attachment on the ground that the sum demanded was not justly due, or that it was not payable when the action commenced. It cannot be contended on the other side that the sum was not justly due, nor that it was not payable when the action commenced. The English Bankruptcy Act of 12 and 13 Victoria, under which it is contended that the defendants were entirely divested of all their property, does not expressly name the colonies ; and therefore we are not bound by it, nor can the Judges judicially notice it. The debt accompanies the person of the creditor, and the plaintiff, by our statute, was entitled to attach the debt due by Purvis. If the English law and our laws conflict, the Provincial Judges arc bound by our laws, and not by the English laws. Bliss, J ere has been a decision on this very point, on an appeal to the Privy \.-ouncil — Hill v. Ooodall, 3 Murdoch Epit. 149. The case is really so clear that there cannot be a question upon it. The rule must be made absolute. DONOHOE V. BORDEN. When there is an application to set aside pleas as false, and affidavits in reply, deny- ing statements of the pica, are produced, though the Judge will discharge the rule, lie will in general direct the costs to be costs in the cause. This was an application to set aside the pleas as frivolous and vexatious. Lynch moved to have order nini made absolute, on an affidavit of the plaintiff that the defence was false. McCulJy produced affidavits in reply, alleging that the pleas were true. Biiiss, J. The order must be discharged, but the costs will abide the event. I think I have gone too far in giving costs in these cases. "Were many of the causes in which I have given costs on discharging the order to come before me again, I would do as I have done in this case. I think in almost all cases of this nature the costs ought to be costs in the cause. ■ / : :2;Vl MOHSK /•. CilKSNlTT. April 20. — J5kkoiiK Wti.KiNS, J. WHITE V. DIMOCK. When an attorney beneficially intere.stests. To issue aii execution on a Judf^nient more than 20 years old, there must have been !in execution regularly issueil and returneil within a year. Turs was nn order ii'lsi to set aside an execution issiied more than 20 years after the entry of the jii(lfi;ment, ai\d to have the costs paid by the attorney. Dickry. There was nothing; to sliew that any execution had been re- turned within a year after judgment. The attorney was beneficially interested in the judgment, it having been assigned to him in payment of a debt by the ])laintitt', who was absent from the province. The execu- tion was is^'ued for an amount including 20 years' interest on the judg- ment. Mi'Ciilhf produced affidavits in reply, negativing the allegation that the judgment had ever been satisfied, and stilting that an execution hud been issued within a year after the judgmenr iiad been entered, and alias am! pluries executions had been issued and returned. WiLKTNs, J. The execution was irregularly issued, and must be set aside — the costs to be paid by the attorney in tlie cause. MrCiilh/ asked leave to mention the case in Couvt. MORSE r. CIIESNUTT. AVhere })liiintii1\ bavin};- loi.ikod n dethult, wnsticcessfnlly opposes the tiiking it olV, he will be lial>le fur the costs of making the rule iibsolute. Tins was an action for the foreclosin f a mortgage. There was a default regularly marked ; but the defendant came in with an affidavit stating that default had been allowed to be nuirked by a misconception on the part of his attorney, and that he had a defence. MrCiilli/ replied, jn-odi'cing atfidavits denying the facts stated in defen- dant's affidavit to be true, and alleging that he had no defence. "NVii.KiNs. ./. The default must be taken oft', and as tlie plaintifi" Ii;is unsuccessfully opjiosed this order, he must ])ay the co (s. Mm MrCniJij asked leave to have- the case mentioned in Court at the next tcro proof was actually given that the value of this property, if the nvirsiouor wished to sell, was greatly lessened by the act complained of. it would a])poar, indeed, from the ease of yonii;/ v. Sjiencvr, and from 'I'nrl.rr v. Xewiiia,), 10 li. &:, C. Mr), 11 A. & E. 40, that it was in all such cases a question for a Tury, whether the act of the defendant was an injury or not to the reversionary right of the jilaintiff. In the latter case, this question was expressly submitted to the Jury hy Lord J)e7im<(ii ; and in the former, a now trial was granted, because it had not been so submitted, and that it might be. Wc are therefore of opinion that the rule ti) set asidv- the non-suit must be made ahsoltttr. I n m f 4 240 CAMERON V. McDonald. SIMPSON V. rOOTE. Tlio (lelivci'y of a deed gives constructive possession of the land, and the title of the pnrchasei" is complete, though the vendor remains in possession. The lessors of the plaintiff claimed, under a deed from J. McCahe to Edward Fnjor, dated October, 1820, and under -will of Edward Pri/or, dated April, 1830. McCahc was the owner iind possessor of the land at the time of the execution of the deed, and conl/.m/^d in possession until his death, two or three years before the trial. The defendant relied simply on a possession, not setting up any title, but contended that plain- tiff could not recover, — 1st. Because Edward Pri/or took nothing, under the deed, from McGahp, as McCahc continued in possession. 2nd. As Edward Pnjor was out of possession when he made his will, the devisee took nothing under it. Hallihuktox, C J. The ('ourt, ■\^■ithout calling upon the other side, over-rided both objections, stating that it had long been decided in this Court that under our simple system of conveyancing, which was well adapted to the state of the country, actual livery Avas not necessary ; that when there was no adverse possession against the vendor at tlie time of sale, the delivery of the deed carried with it the constructive possession of the land to the purchaser ; and therefore, after McCahe executed the conveyance to Prynv, he held tlie land \inder Prjjor, to whom he had himself conveyed the title. His possession became, therefore, the pos- session of Prynr, and thus the foundation of both objections were removed. CAMERON V. McDonald. Where plaintifT livoujiht tresjiass for cutting wooil on land, In'ld tiiat lie must show an actual possession, or tliat the land is within the boundaries described in his docu- mentary title. This was an action of trespass for cutting and carrying away timber. Plea, general issue. Verdict for plaintiff, 10s. damages. HALiiiBURTON, C. J. I think that allowing a judgment to be entered upon this verdict, would be productive of mischievous consequences. It is of great importance in a country situated as this is, that its inhabitants sliould not be misled into an opinion that tlicy can estaldisli a riglit to wilderness lautl by such h)osc proof as the jjlaintitf has given in tliis case. To maintain trespass, tlie plaintiff nnist be either in the constructive or actual possession of the property trespassed upon. CAMERON V. McDonald. 241 In the eye of the laAV, unless the cr ntrary appears, every man is in the constructive possession of land to which he establishes a legal title. There is no pretence that the plaintiff had such possession in this case, for the proof is that the deeds produced in evidence did not include the lines. What proof has he given of that actual exclusive possession which, unaid- ed by title, would enable him to maintain trespass against another, for cutting trees on wilderness land ? It appears that many years ago he employed a surveyor to run a line, ostensibly of the lot which he had long before purchased from Fraser, but it is quite clear that his deed f'-om Fraser did not convey to him the land when this line was run, and ho had himself frequently pointed out another spot far within the line, as his boundary. After this line was run, plaintiff claimed to hold up to it, cut timber to the eastward of it, and gave permission to others to do the same. But the defendant, who lives on land which adjoins the plaintiff's to the westward, has never acknowledged this line, and he and others liave cut timber to the eastward of it, as they did before it was run. What exclusive possession, then, has this plaintiff proved ? Had ho fenced upon this line and cultivated up to it, that, indeed, Avould have rendered it incumbent upon any person who interfered with that posses- sion, to show his right to do so, for the law deems every man to be the owner of what he possesses, until the contrary is shown. If a man has a hat on his head or in his hand, and another snatches it from him, the law would hold the person so snatching it from the peaceable possessor to be a wrong-doer, unless he showed a riglit to do what he had done. But, if two persons arc seen, eacli with a hand upon a hat, and struggling for the possession of it, the law can presume nothing in tlic favor of either, nor could any mark made by eitlier on the hat pending the struggle, be received as evidence of ownership. This appears to me to be analagous to the case under consideration. Plaintiff, defendant and others cut wood on this land before the line was run. This line was run fourteen or fifteen YCiU's ago, by a surveyor employed by plaintiff, without notice to defen- dant, plaintiff and his grandson carrying the cluiin. Defendants deny the plaintiff's right to the land, and cut upon it as previously, claiming it as a part of the Jiaicic lot. It is, however, unnecessary for them to show their title until the plaintiff establishes his right to maintain the action against them. Tlie evidence in support of that right consists in running tlic line under the circumstances I have stated, and his own declarations that that line is his bomulary. I think it would produce great confusion and much litigation in the country, if we were to sustain the right to maintain trespass upon such proof, and am tlierefore of opinion tliat tlils rule to set the verdict aside should be made absolute. ,»5 1 242 HARRIS r. McKENZIE. HARRIS V. McKENZIE. It is no ground for challenging the Jury that the sheriff is one of tlio parties in the suit. Tins was an action by the plaintiff", the sheriff of Pictou, upon a bail bond. After the Jury had been sworn, the case opened, and whilst a wit- ness was under examination, an objection was taken by the defendant's Counsel that the Jury had been returned by the plaintiff himself. The cause, however, proceeded, and the plaintiff obtained a verdict. A rule iiiiii was subseqiiently granted for a new trial upon the same ground whicli had been before taken, and was argued in Easter Term last. (Nov., 184-1.) Ii"; f I" im 1 ;S 4 ' ',! J Bliss, J. Wo arc all of opinion that this objection cannot prevail. In the first place it came too late, nor was it the proper mode in which it should have been made. If the direction of the Jury process to the sheriff, and the return by him of the Jury in a cause in which he himself was a party, Avcre wrong, as undoubtedly by the law of iMigland it would be, it was a subject for a challenge to the array, " The law," says Ti.ndall, C. J., in linimlciU v. titles, (9 ]5ing., ll}), "has appointed a particidar time and a particular mode for taking the objection, that is, before the Jury are sworn ;" and no special application, he says, can be made to the Court, " unless the fact on which it is founded came to the knowledge of the party at such a time as to render it impossible for him to tender a formal challenge in due course." That case was very like the present ; it was a motion for a new trial on the ground that the seconda- ry, whose duty it was to strike the Jury, was brother of the plaintiff's at- torney, and his partner ; and it was refused. So in Rex v. S/ieppnrd, (1 Leach, C. C. 101,) when the sheriff was one of tlic prosecutors, and had returned the Jury who tried the prisoner, it was decided by the twelve Judges that the objection came too late in arrest of judgment ; tluvt it should have been taken by the prisoner by way of challenge to the Jurors. But we are also of opinion tliat if the proper time and manner for taking such an objection had been adopted, it Avould have been ineffectual. In otlier words, that this would not be a sufticient cause for challenge. The challenge to the array is founded upon the uniudiffcrency or default of the sheriff or other returning officer. Co. Litt., 1;50, a. Hex v. lie I I ^w 21G DANIKL STAim v. JOHN F. MrNCEY. ''li£j jildrr of liiisnirsn ircrr (iJI villi in llic jvrinrlirtlon of llii' Cnini, vn'rihf lircaiit^r lie xlr^if irillioiit it for (i sliorf (iiiic rllJni' oil hiisiiicsH or j'li'fistirc. It v'ould \n) (lifficult to liiy down any {general rule which wouhl decide under vliat circunisduucs iil)si'iu'ti wouhl or would not authori/o such proro('(liu};s ; but I think (he Coiu-t would never debar any jdaiutilf from resortiuj^ to it, indess they numifestly saw that it was unnecessary and vexatious. I cannot view the case under consideration in either lijj;ht. Here is a defendant who formerly resided and carried on business within the jurisdiction of this Court, — who tern\inated that business — sold oif Ills stock — removed with his family to the Maj^dalen Islands; and it is evident, from what has taken place subsecjuently in the face of the Court. (I mean his discharj^c as an insolvent debtor,) that his aflairs were in a state of embarrassnjent that would fidly justify a creditor in resorting; to lejfal measures to secure his debts. The defendant is absent, and ho cannot serve process upon him ])ersonally. Is it not, then, one of the very cases which the statute contemplated, and f(n' which it provided tlio remedy of which tlie plaintiffs have availed themselves : 1 think it woidd be difficult to imagine a case coming more directly under the Act, and am therefore of opinion that the defendant was liable to be sued as an absent debtor. It now remains to decide what effect the defendant, having entered an appearance and filed common bail in the action, should have ujjon this lulc. The defendant's Counsel contend that the whole object of the Act was to compel an appearance, and that therefore, when an appearance is entered, that object is gained, and all the consequences of the defendant's previous absence arc annulled, and the cause is to proceed and be treated as one that had commenced by a personal service in the usual manner. The proceedings under the Act have been likened to cases of distringas, where the issues are returned as soon as an appearance is entered, and to those under foreign attachment in London, where the garnishee is dis- charged on fding .•^jjrritd bail. I do not think that citlier of these cases are so analogous to our pro- ceedings, under tlie Absconding Debtor's Act, as to lead to the results contended for. The first clause of 1 Geo. ',), cap. 8, renders the goods attached liable to respond the judgment, to be recovered under such process ; and the fifth clause renders the goods, effects, or credits in the hands of the agent of the absentee also liable to the judgment, and makes the agent person- ally lialdo if he does not produce them. It must be remembered that until tlic year 1821, the property of persons present, as well as of those who were absent, could be attaclied by ina^iic process ; and such property !ii' ]K'rsons ])V('st;ii( m';is held to r>'\«])()ud tlie judgment, and tlu' plaintiff MURISON V. 1K)Y]). 217 , niif,'lit recover, iilthough the ilefondaiit entered an appenrnncc and contcat- cd the suit. When the legislature piissed the Act, in 1S24, rcstriiining the ihsuc of iittiichmenta, they exeepted the eases of absent or absconding debtors, which therefore remains to be decided upon, as they would have beer, had that restraining Act not passed. Under our practice, prior to the passing of tlic 4 & 5 (}eo. IV., 182 I, neither the filing of the special bail nor the render of the defendant would have d(>j)rived the plaintiff of the security he had gained to respond the judgment uiuler the writ of uttachment> The possession of the goods attached could only be regained by giving security to the sheriff to pay the amount of the appraised value in case the plaintiff should r. 'cover judgment. As the Act restraining the issue of attachments does not extend to the cases of absent or absconding debtors, there can be no doubt that the goods taken under the attachment must likewise be retained to respond the plaintiff's judgment, should he recover in this action. It has been made a qut stion whether the goods, effects, and credits in the hands of the agent shall be equally bound with the goods taken under tlie attachment. If tiir defendant was liable to be proceeded against as an absent or abscoi dinr debtor, — and I have already pronounced an opinion that he was, — then the fifth clause of the 1 Geo. III., cap. 8, solves all doubt upon that point, and entitles the plaintiff to retain the security which he has acquired under the process, which he was author* ized to issue against tlic defendant as an absent debtor. I am therefore of opinion that this rule nisi should be discharged. hJ ii ? I I i. Ml pro- results liable d the agent )porty laintlif MURISON, et. aL, v. BOYD, an Absent Debtor. The Court will permit the sheriff to amend his return to a writ against an absent debtor, so as to state that the property attached was the property of the absent debtor. This was an application on behalf of the plaintifTs to amend the sheriff's return to the attachment issued in this cause. That return was as follows : " Under this writ I have attached a certain schooner called the Midas, which I afterwards sold at public auction for the sum of £96, by order of Mr. Justice Hill, and have the proceeds (after deducting ex- penses) now ready. I cannot find the within named defendant within my precinct, but have left a copy of this writ at his last place of abode in the city of Halifax." The amendment sought by the plaintiff is that the sheriff stated that the vessel attached was the property of the defendant. Three olyections were made to this motion. i \ 248 MUllISON V. BOYD- 1st. That no amendment to any part of the proceedings against absent debtors can be allowed, because there is no person in Court upon whom tiotice of the motion can be served. 2nd. That r. similar rule was refused in the case of Eatc/iford v. Clu'pman, ante p. 23-5. 3rd. That as it is the sufficiency of the return that alone gives the Court jurisdiction, by allowing an insufficient return to be amended, the Court would assume jurisdiction by its o^¥n act in a ca»e where otheiwise it would have none. HALlyiBVKTOi*, G. J. There is a fallacy in statLsg that it is the ghcrifF's return that g: 'es the Court jurisdiction in cases against absent debtors. It is the actual seizure of property hclonging to the defendant nvder the attachment, which is issued under the first clause of the Act, or the snmmoning of an agent Avho has goods, eflfects, oy credits of the defendant, when the proceedings are under the second clause, that gives the Court jurisdictioni. It is true the Court always looks to the sheriff's return to ascertain that either or both of the?e have taken placp, and will not exercise jurisdiction over cases in 'vhich that return does not state that defendant's property has been attached or such agent summoned, liut if either the one or the other has hceti acttially done, should the plaintiff be deprived of the temedy which the law has provided for him in such cmes, because the sheriff has not stated what he did with suffi- cient precision ? This indeed would be sacrificing substance to form, aud rendering a rule of this Court (if any such rule there were) paramount to an act of the legislature. But I know not of any rule that there shall be no amendment in the proceedings against absent debtors. In ordinary nases, where there are two parties before the Court, both of them are entitled to be hoard upon every motion tliat afiects their rcspec- tivp ' ases ; but a» the legislature has sanctioned these ex parte proceed- ings, and directed tis to give judgment against an absent man, would it not be preposterous to refuse to correct any error or omission one of our own officera may have made, because no notice of this subordinate pro- ceeding had been served upon the party ? The Court should undoubtc'V use due caution in such cases, but should not by a fastidious nicety defeat the object of the statute, when they are satisfied — aa I think, from the sheriff's affidavit, they must be — that enough has been done to give them juilcdiction in the case, and Chat the only defect is ir the BheTifi"s state- ment of what he did, which he is noAv ready to remedy. It is said, however, that we refused a similar rule in Eatch/ord v. Chip- man. We certainly refused a similar rnle, but not in a similar ca»c. There the vessel wag in dispute between the attaching creditor and a MURISON V. BOYD. 249 Ch if ix ca»c. and a party to whom the absent debtor had transferred it. The sheriff net only did not know who was the xoal owner, but was at one time oi> the point of returning 7iulla bona ; and it was quite clear that, whether the con- veyance the defendant had made was or was not sufficient in law, in his own apprehension he had parted with all his interest, and there was no probability of his making any further inquiry about her The sheriff, with proper caution, returned that he had attached this vessel as the pro- perty of defendant, which the Court deemed insufficient ; and after all this had been discussed, we were applied to to permit the sheriff to amend his return by striking out the word " as," so as to allow the return to gtate an absolute seizure of the defendant's property, — not upon the ground of its having been inserted by mistake, or of the sheriff having subsequently acquired further knowledge, but because he was indemnified by the plaintiff. This was properly refused. The circumstances in this case are widely different. The vessel was registered in the name of the defendant, and when she was attached, the sheriff received the cer*^ificate of registry without any question of the ownership being in the defendant. No other person, from that day to this, has disputed that ownership ; and from his own knoAvledge of the facts, he, the sheriff, would have returned <^hat the vessel was the property of the defendant, had it oci;urred to him to do so, and that he did intend to return that the vessel was the defendant's property. So far from this being at variance with the decision in Batchford v. Chipman, I find, on reference to the opinion I gave in that case, that I almost anticipated wliat opinion I should give should such a case as this arise ; for I then liald ; *' A question might arise whether any amendment can be allowed in proceedings against absent debtors, because they cannot be served witli notice of the motion. Without acceding to this as an unqualified rule, I think the Court would consider such applications very warily, and never comply with them unless they saw that justice plainly required it." If, in the case now before us, the sheriff had positively shewn that the word "as" had been unintentionally used, — that it was an entire mis- take, — that he knew the property belonged to the defendant when he attached it, and intended so to return it, I should pause before I permitted a mistakf of the sheriff to deprive the plaintiffs of the remedy which the statute has provided for them. I am therefore of opinion that a rule absolute to amend the sheriff's return in this particular should be allowed. Ml EASTER 'J'ERM, 1S4G. ! t MITCHELL, d. al, v. TURNBULL, ct. al When A is intlebtod to li, and C \» indebted to A, and the three parties meet tofleth-' W, and A iv;j;ico.s tiuvt C fshuii |m.y 15 the amount duo by him to A, which C agreca ti) do, A cannot aftenvards tcrokc suci. order. In this case a verdict was taken by consent for tlic plaintiff, for the sum of £121 4s. l|cl., subject to tlic opinion of the Court, whether it ought to be reduced, under the evidence, to £o Ms. 'l^d. The defendant Tnrnhnll, being indebted to jintchcU,tho plaintiff, in the Bum of £121 4s. Id., and Mitchell being indebted to Klrlqiairlch in the sum of £ J 15 9s. yd., a verbal order was given by Milchcll to Tnrnlmll, to pay Kirkpalrick this latter sum. TxrnhuU, it seems, had previously stated to Kirlqudnck that, if he AVoidd gel such an order on him from AlllrhcU, he would pay it. After this, Jvirlq^alrick directed his clerk, 3IcDounld, to call upon Mitchell at Pictou, and ask him for an order on Tnrnhnll for the amount of his, (3ritchi:irs), debt to KifJqintrir]:. To this, Blilchell at first made some objections, that he had not Kirl-patrick's account with him ; but after- wards, on the same day, McDonald having met Mitchell on the wharf, the latter expressed himself willing to give the ol'der, but, heaving no paper or ihk there, said he would go on board a boat where Tnrnhall then was. They went accordingly, and 3[itchell then and there said to TurnhuU, "that al! »vas right, and that any settlement that he, {Tunihull), ^nado with Kirkpntrick, he {.Mitchell) would abide by." Some time after this had taken place, Mitchell was desirous of apportioning among all his cre- ditors the money due to him by 'Tnrnhnll, and offered to pay Kirhpeilrieh £80 out of it, if he woidd be satisfied to receive that sum. Kirlqmtrick re- fused, and Mitchell then forbid Tnrnhnll from paying at all the £115 9s. 9d., to Kirl-patrielc. Turnhnll, however, notwithstanding this, said if Kirkpedrick Would indemnify him, he would pay him. KirJqmtrieh did so, and Tnrnhnll then paid him the sum of £115 9s. 9d., under the before mentioned verbal directions from Miteltell. Bi.iss, J. The question for our decision is, whether the sum so paid by Tnrnhnll can be deducted from his original debt of £121 4s. Id., due to 3Iitehell ; or, to state the question of law which it involves, whether this order given by Mitchell to Tnrnhnll, in favor of KiA-pafrick, coidd be revoked before the money was paid under it. ! C MITCHELL V. TURNBULL. 251 If this had simply been an order or direction given hy Mifrholl to Tiirn- hidl, wlio was his debtor, to pay that debt or a part of it to another per- son, without any assent or engagement on the part of Tnrnlndl given to the appointee that he would do so, the law is clear that the control of Mitchell over his own funds is not taken away from him ; he may revoke tliat order, and give new directions : nor roidd the person to Hhom the money had been directed to be paid, maintain an action for it against TarnbidU because there would bo, in that case, nn privity between them. Wharton v. \Valhn\ 4 B. »fe C. 163; Baron v. Ihishand, 4 B. & Add, (ill. It appears, however, to be equally well established that if the appointee be a party to this arrangement, and the debtor who has received the direc- tions to pay had given his assent to him that he would do so, an exception is thus made to the general rule of law that a chose in ai'tion cannot be assigned. In this case, to use the language of Jlnilc.i/, J., in IVilson, v. Cnti])land, 5 B. & Aid. 231, the assent of the debtor makes him the debtor of the appointee, and liable to an action of money hnd and re- ceived to his use. The case o£ Fa! rile v. Denton, et. al., 8 B. & C. 395, also establishes this principle. The law, then, being thus settled that a debt may, under such circum- stances, be transferred, and the original debtor become liable to an action to liim whom he has thus assented to accept as his creditor, it must follow that the original creditor has now parted with all control over the sum assigned, and lost all claim upon his debtor in respect of it, and cannot any longer recall his order or annul the arrangement to which the others have so agreed. The assent of all three to that arrangement amounts to an extinguishment of tlie original debt. This position is clearly laid down in the case of Ilodr/son v. Andcrnov, 3 B. & C. 842, and in Crow- foot V. (iitrncij, 9 Bing. 372, in both of which it was expressly decided that, " although a creditor had a right to insist on tlie payment of liis debt to himself or to his appointee, yet, having once given an order for tlie payment of his debt to a third person, he had no right to revoke that order, provided there was a pledge by the person to whom the autlu)rity was given, or an assent from him to the appointee, that he would pay the debt according to the authority." The material fact, then, upon which all the cases of this kind turn is, whether the debtor lias come under any pledge or given his assent to the appointee that he would pay the money ; and we must now inquire wliotluT this has been given by TnrnhuU to Kirk jkU rich. If this were a matter of any serious doubt, it would be necessary to send (he case again (o the Jury ; bu( it appears to me that though tlie (■vid( lice may be a lidlc confused, we can have no difbculty (m tliis point. '1 W' SA Hi ) III r 252 MURISON V. MURISON. In the first place, before the order was obtained, Turjihull had engaged to Kirhpatrick to pay the money if he would get the order. When, there- fore, it was sought and procured, in pursuance of this undertaking, if nothing more appeared, a subsequent assent and promise might fairly be implied. Besides, this order was given by AlitcJicIl at the express request of Kirhpatrick, who had sent his clerk for it. The clerk then represented his principal, and it was just as if Kirhpatrick himself had been present at the arrangement. The three parties, then, may be considered to have met together for this very purpose — that Kirhpatrick might give the order to Turnhull. Now, though the evidence does not tell us how it was received by Turnhull, or that he expressly assented to it, yet, if he did not dissent, can there be any doubt on that point, more especially when he had reason to expect the order, and had pledged himself before- hand to the payment of it ? He refuses, too, after this, to pay Mitchell without deducting the amount of this order ; and though he only pays Kirhpatrich after receiving an indemnity, that circumstance does not weaken the case, — and the same payment under an indemnity, it may be observed, is to be found in the two last cited cases. These are both strongly in point, being almcst identical with the p''esent case. We are tliereforc of opinion that the order given by Mitclu-ll could not be revoked ; that the payment of it by Tarnhull Avas proper, and consequently that the amovmt of it must be deducted from the debt which Mitchell claims ; and the verdict will accordingly be reduced to the sum of £5 14s. 4^d. if, I MURISON V. MURISON, Sued as an Absent Debtor. An iittaclinient cannot be sustained for unliciuidiitcd dannifies ; and wliere a claim lor such daniages is united with a demand, for which an attaclnneut could be sustain- ed, it will invalidate the whole proceedings. This was an application to set aside the process and proceedings in this case, which were under the Absent Debtor's Act. The plaintiff's affidavit stated that the defendant was indebted in the sum of £804 5s. Id. for money had and received, and in the further sum of £53 8s. Gd. for interest ; that a quantity of plaintiff's sugar was in the care and posses- sion of defendants at Montreal, in Lower Canada, who, disregarding his instructions, kept them so insecure that a large quantity were totally spoiled by the inundations of the St. Lawrence, and that thereby the plaintiff lost the sum of £G30 3s., making in all plaintiff's demand agahist the defendant £1487 16s. 7d. The affidavit then states that the defen- dant formerly resided in this province, but now in Lower Canada, and that Messrs. M. Tohiii d: ()o. were their agents or factors. This affida- vit was made before ^fr. Juslirc Hill, and iipon tliis an attachment w;i.s MURISON V. MURISON. 253 issued, including a summons for the above-named agents indorsed, " By oath for £1487 16s. 7d." signed "Will. Hill." Another affidavit was subsequently made similar in all respects to the other, except that Terrior & Hart of Arichat are stated to be agents &c. of the defendant, instead of Tohln & Co. This affidavit was made as stated in the jurat, "in the absence of all the Judges of the Supreme Court, before John LiddcU, J. P.": and upon this a summons issued to the said Terrior & Hart, which is endorsed " By oath for £1487 16s. 7d., in the absence of all the Judges of the Supreme Court, and signed by John LiddcU, J. P." Bliss, J. The affidavit upon which the attachment issued disclosed two distinct causes of action. In the first place there is a positive and certain debt sworn to in the usual form for money had and received, and for interest amounting to £857 13s. 7d. ; and then follows a special statement charging the defendant with negligence and misconduct as bailees, from which a loss is proved to have arisen to the plaintiff of the further sum of £630 3s., and the endorsement on the writ is for £1487 16s. 7d. — that is the amount of the two sums together, and for this the writ issued. The plaintiff having thus united the two sums, and the attachment being for their joint amount, it must be good for the whole, or not at all. We cannot separate it into parts, and support for cither one or the other of the above sums ; and therefore though unques- tionably the affidavit would have been sufficient to support an attach- ment for the debt as sworn to, and no objection would have been taken to the writ if it had been limited to that sum ; yet if the latter part of the affidavit or the endorsement in respect of it be insufficient or irregular, the whole process must be set aside. Brook ct. al. v. Baine. 5 Bur. 2690 ; 1 Doug. P, C. 318-631 When the affidavit was for debt in bond, and also for assumpsit, the Court would not allow the defendant to be held to bail on either. The question, then, is, can the attachment be supported upon this special affidavit, and for uncertain damages, as in their very nature these must be. The abs. debtors' Act, 1 Geo. 3 cap. 8, upon which this process is founded, does not appear to me to be applicable to such a case as the present. The very title of that act explains its object and intention : it is " to enable creditors to receive their just debts out of the effects of their absent and absconding debtors." Its enactment is indeed apparently more extensive in its language : it authorizes any person entitled to any action for any debts, dues, or demands against any person absconding or absent out of the province, to attach his goods, &c. But I do not give any greater force or meaning to the words dues and demands than belongs to the word dclts, to which they are joined, " 7ioscitur a socio ;" 14 t 254 MURISON V. MURISON. i m J and by these terms, creditor, debtor, and debt, I understand the legisla- ture to mean what, in their ordinary and common acceptation, these words import ; and their intention, as I collect from them, was to provide a means by which payment of debts might be obtained from those who had absconded, leaving them unpaid. The Act refers to cases of debt, and debt only. The title of the Act speaks of just debts, and of enabling a creditor to receive them, — thus pointedly and plainly, as I conceive, shewing its intention to furnish this remedy where the debt was certain. If we once step beyond this line, there is no possible case of uncertain damages to which the remedy by attachment, under this Act, may not equally apply ; and it could then be resorted to in all cases of breach of contract and trespass, though I do not know that a more extreme case could be put than the one before us. It was even in the limited view, to which I think it must be confined, deviating sufficiently from the law of England ; but I cannot bring myself to believe (and the language of the Act does not compel me to it) that the legislature could authorize the attachment of property of every absent or absconding person, to answer the uncertain damages of any one who might have a possible claim or supposed cause of action against him, and that merely upon his own simple allegation — for at this period it does not appear that any affidavit was required previous to the issuing of an attachment. This Act, 1 Geo. III., cap. 8, was passed in the fourth year after the province possessed a legislature, and appears to have been the very earliest one in which the process of attachment is mentioned. The first Act which gave the form of the writ was the 6 Geo. III. This was amended, however, by the 1 1 Geo. III. ; and it is somewhat remarkable that it is to a temporary Act, long since expired, that the writ owes its origin. The Act of 8 Geo. III., cap. 5, also a temporary one, appears to be the first M-hich required any affidavit to support an attachment. By that the sheriff was directed to attach no more property than the amount of the sum sworn to and endorsed on the writ. Next followed the Act of 18 Geo. III., cap. 6, which is still in force. This enacts that in all cases where the sum shall exceed £3, the sheriff may arrest or attach the pro- perty of any debtor, upon the plaintiff's affidavit that the defendant is justly indebted to him in any sum exceeding £3 ; and the sum specified in the affidavit is to be enclosed upon the back of the writ, thus : " By oath for £ — " (in words at length). This Act is conclusive, in my opi- nion, on the subject. Neither bailable process nor attachment, under it, can be issued except where the plaintiff can swear to a sum certain, the only duty of the Judge being to indorse the sum so sworn to on the writ. This Act authorizes no special order — invests the Judge with no discre- tionary power either to hold to bail or to attach ; and if he cannot indorse WOODBERRY v. GATES. 255 the writ as the Act directs, he cannot indorse it at all. If he can make a special order under this Act, so can a justice of the peace in the ab- sence of the Judges, for the same power is given to the one as to the other, and the latter would then be authorized equally to order a defen- dant to be held to bail in special cases. We can never suppose that this could have been contemplated by the Act. Our provincial Act is sub- stantially like the English statute of 12 Geo. I., cap. 29, which required an affidavit before bailabl'j process could issue, M-hich would have limited that process to cases where the debt or damage was certain, if the Judge had not the power of holding to bail independent of the statute. And so he may do here for the same reason, notwithstanding the provincial Act. But the process of attachment owes its origin and support alto- gether to our statutes, and by these alone it can therefore be regulated. He has consequently no authority, in respect of this, which the Acts do not give him ; and as they have intrusted him Avith no discretionary power, but have limited his indorsement of attachment to the simple case of a debt certain, he can exercise no other. Whenever, then, the case is such that, if bailable process were to be issued, a special order of a Judge would be required, then I consider that the writ of attachment cannot be issued. This case being of that description, it cannot be upheld. If anything further were required on a point which seems to me abundantly clear, the Act of 4 & 5 Geo. IV., cap. 7, might be referred to as com- pleting and closing the case. By the third section of that Act, the writ of attachment shall not be issued in any case except against absent or absconding debtors, and for the securing of debts contracted since the passing of that Act, — thus beyond the possibility of doubt showing that the debts in respect of which the writ was given were debts in theii limited sense, and did not extend to claims or demands of such a nature as that which is disclosed in plaintiff's affidavits. LESSEE OF WOODBERRY v. GATES, et. at Wliea the owners of adjoining lots of land agree to abide by a certain boundary between them, though that boundary is inconsistent with their documentni-y title, their agreement will bind them, and preclude them from setting up any other boundary. This was an action of ejectment tried before the CMef Justice, at Annapolis, in October, 1845, when the defendants obtained a verdict ; and the plaintiffs obtained a rule nisi for a new trial, which was argued after Michaelmas Term last. The lessors of the plaintiffs claim the land in question as part of a lot lying in the Richardson grant, purchased by their father, Fostnr Wood- hcrry, through whom they claim, from Oldham Gates, The defendants 256 WOODBEftRY V. GATES. t' -'I are the sons of Samuel Gates, and grandsons of the said Oldham Gatesy through M'hom they claim. The rear boundary of the Richardson grant forms the front line of the Morton grant. Oldham Gales being the owner of a lot in the Richardson grant, and also of the lot now owned by the defendants in the rear of it in the MoHon grant, by deed dated November 21, 1789, conveyed to Foster Woodbemj the former lot, which, according to the description of the deed, extended from the front bound on the river 1| mile, or until it comes to the rear of the Richardson grant. The rear line of this grant, as was proved, extends some distance beyond the 1| mile from the front, and includes the land now in dispute, being that which lies between the If mile and this rear line. The lessors of the plaintiff had, therefore, undoubtedly, under the deed from Oldham Gates, a clear legal title to the land in question. The defendants, however, nevertheless, insist that the lot of the lessors of the plaintiffs extends no further than the 1| mile, and that it was bounded thereabouts at the foot of a certain rising ground called Farl-nrs hill ; and in addition to repeated declarations made by Foster Woodherry that his land was bounded at that place, on which the defendants relied, they also gave in evidence the following circumstances detailed by Ambrose Gates: He stated that, 27 or 28 years ago — that is, about the year 1818 — being then 14 or 15 years old — he and his father Samuel, the son of Oldham Gates, met Milledge, the surveyor, and a party, including Foster Woodhoi'y, who were employed in running up the line of Wood- bemj s lot from the river towards the rear. When they had reached what appears to have been a little short of Parker's hill, the siu-veyor said, " Here is a mile and a half." Samuel Gates then forbid Woodberry to run further. They did, however, run on till they reached Parker's hill, where a stake stood. Here some further dispute took place. Wo "'berry insisting upon going on, when Samuel Gates, who seemed angry, and the witness, left them, and they ran on. Two or three years after this — that is, about 1821 — the witness and his father were engaged in getting tim- ber near Parker's hill, when Foster Woodberry came up on horseback, and accused Gates of trespassing on his bounds. Gates, on the other hand, insisted that Woodberry should come no farther up than 1^ mile. After some warm conversation between them, Woodberry said, " 3Ir. Gates, we have both been MTong : you want to come too far down, and I have wanted to go too far up ; — here is the stake that was settled between your father (^Oldham Gates) and me, and if you are ivilUng to abide by it, I am." After some further dispute, they both went to the stalie. Gates then agreed that that should be the bound ; and Woodberry, giving tlic witness a stroke with his whip, said, " Recollect, you blockhead, that is the boundary between your father and me, and don't let me catch you over it." WOODBERRY v. GATES. 257 His Lordship the Chief Justice, leaving the credit to be given to this evidence entirelj' to the Jury, directed them tliat, though the deed from Oldham Gates would authorize the purchaser to go to the rear of the grant, yet, if another line at 1| mile, or thereabouts, from the river had been agreed upon and settled between the parties, both would be bound by it ; and that if they were satisfied such a boundary had been estab- lished, they should find for the defendant ; if not, their verdict must be fi.r the plaintiff". Bliss, J. The argument for a new trial proceeds upon the ground that this was a misdirection upon the part of his Lordship, and that the verdict ought to have been for the plaintiff", — the learned Counsel, in support of the rule, contending that the evidence given on the part of the defendant could have no such eff"ect as was attributed to it ; that title having been shewn in the plaintiff", nothing but a conveyance could divest him of it ; that no admissions could establish a boundary diff"ering from that which was shewn by the deed ; or otherwise, as it was argued, such admissions would amount to a conveyance, and be in direct opposition to the Statute of Frauds. It was, however, admitted that, if the plaintiff" had not established a clear title to the land in dispute — if the true boun- dary were a matter of doubt — that then this evidence would have been properly received to settle it. y We think the rule is not confined to such narrow limits, but that the principle on which it depends gives it a much more extended application. It cannot be disputed that the lessors of the plaintiff", deriving their title from Foster Woodberry, stand precisely in his situation ; and that, as far as his acts and his admissions would be evidence against himself, to the same extent these lessors of the plaintiff" will also be boimd by them. Now, it is a general rule, applicable to all cases alike, that admissions made by a party, or fairly deducible from his acts and conduct, are evi- dence against him — more or less strong, according to the nature of the admission itself, and the circumstances under which it was made. In some cases they will justly be entitled to very little weight ; in others they will of themselves be conclusive. In some cases, whatever their eff'ect may be — even where, prima facie, they would be conclusive — they may be shewn to have proceeded from a mistake, or be otherwise explain- ed away — as, for instance, where a receipt has been given (3 B. & Ad. 318). In some cases, no such contradictory or explanatory evidence will be received, such admissions amounting to a complete estoppel, — "the rule being clear," says Lord Denman, " that where one by his words or conduct wilfully causes another to believe the existence of a certain state 258 WOODBERRY v. GATES. vm I i of things, and induces him to act on that belief, so as to altrr his own previous position, the former is concluded from averring against the latter a different state of things as existing at tlie same time " {Pickhani v. Sears, 6 A. & E. 474, see 9 B. & C. 586, 3 B. & Ad. 318, 10 A. & E. 90) ; and therefore, where the owner of goods permits a sale to take place in which they were treated as if they belonged to another, he is concluded as between himself and the buyer from setting up his claim. The same rule, and an illustration of it more immediately in point with the present case, is to be found in Neale e. cl. Leroux v. Parkin, 1 Esp. 230. The plaintiff claimed three and a half feet of land, which he al- leged was encroached upon by the defendant's building ; but Lord Kenyox held that as the plaintiff resided in the neighborhood and saw the daily progress of the work, he should not be allowed to set up this as an en- croachment ; but at all events it should be left to the Jury from thence to infer his acquiescence. So, in Doe e. d. Winckley v. Pye, 1 Esp. 364, Lord Kenyan again stated " that Lord Mansfield had often ruled that where one person having title to the premises in the possession of anoth' • stands by and sees his tenant exercise acts of complete ownership by making alterations and improvements inconsistent with the right of the landlord, and makes no objection, but permits him to go on for a length of time, it is evidence to be left to the consideration of a Jury whether he did not mean to be bound by it as an assertion of right." In the present case it is not necessary to be left to a Jury to infer from circumstances an assertion of right on the one side, and an acquiescence in it on the other. We have here the very agreement between the parties to this effect. Now, it will be observed that in both of these cases last mentioned, the admissions bound the party conclusively, even against title ; so that this circumstance, on which the argument of the plaintiff chiefly relied, makes no difference with respect to such evidence and its effect. It may still, however, perhaps, admit of some doubt, if we take the language of Lord Denman, already cited, as the rule on this point, whether the acts and admissions of Foster Woodberry so absolutely conclude him that he coidd offer no evidence in explanation of them, — for it may be said that there has not been any such change of his previous condition on the part of Gates in consequence of his agreement with Woodbei-ry, so as to bring him within this rule. Without entering into any inquiry as to this fact, I may say, generally, that an admission involving in it no consequences ought not to be, and would not be, conclusive against a party ; that if in this case, for instance, notwithstanding the two-fold agreement on the part of Woodberry to the new boundary, there had been a manifest error on his part with regard to the stake and its locality, which could be shewn, and under which he had assented to it as his bound, he WOODBERRY v. GATES. 359 should be allowed to give this or other matter in evidence to explain away tho effect of his conduct, unless the other side could show that in consc- (luence of it some alteration had taken place in their condition. But if that did appear, — as if the property had been sold — had been built \ipon — had been improved — then the admission, though made even under a mistake, would conclude Woodherry and those privy to him. Such seems the rule clearly established (see 9 B. & C. 586, 3 B. & Ad. 318, 14 A. & E. 90), and I have only said this much that I may not be mis- understood. The rule, then, is this — that the admissions of a party are iu all cases evidence against him. In some cases they conclude him ; in others they may be contradicted or explained. But if no contradiction or explanation is offered — if the acts and acknowledgments of a party are of such a nature that they can admit of no explanation — or if no facts can be adduced to shake or affect them — then I take it that they have the same force — operate as strongly against him, and conclude him, as they do in the other case. He cannot in the one, any more than in the other, be permitted to set aside his own admissions — to defeat his own agreements — by opposing to them other facts which, leaving the admis- sion and the agreement untouched, seek to destroy them on other grounds. Thus, to illustrate this again, by a reference to the present case : where the admission is an absolute estoppel, the party, as I have said, cannot now shew that, in pointing out this bound, he acted under a palpable mistake. In other cases he may ; but in neither can he be permitted to shew that the agreement was indeed made — that this stake-bound was fully settled between them — but that this was not binding on him be- cause the legal estate was once in him, and has not been divested. In some instances this effect of the evidence is produced, because it furnishes ground for presuming a fact which is an answer to the case, and a pre- sumption may sometimes be necessary to give to the admission its full effect. As, again, where a partnership has been created by'decd, upon an admission by one of them that it had been dissolved, it will be pre- sumed that the dissolution was by deed, unless the contrary appeared (1 Stark. Rep. 181) ; and in the present case, I may say, for myself, that if it were necessary here to resort to a presumption — if, by reason of the plaintiff having shewn a good title, at a former period, in Foster Wood- herry, that could be defeated by no admissions and no argreement, how- ever deliberate and however strong, short of that which shewed a re- conveyance from Woodberry — I should find no difficulty in presuming that it had been made. The first establishment of the stake-bound appears to have been full forty years ago — for so long back has that stake been known and recognised by others as this boundary. What, then, forbids the presumption that, when the agreement was made at that dis- ■l ,:r 260 WOODBERRY v. GATES. tant day, it was done in such a way as would carry out tlie intention of the parties and make it binding ? Again, twenty-five years ago this stake was pointed out by Woodherry to the next succeeding proprietor ; the former agreement was referred to and renewed by adopting a second time this boundary between them, and their disputes thus terminated. After this, Woodherry shews to others this stake as his bound — acts with a cautious regard not to go beyond it, and, as far as I can collect from the evidence, does not appear, during the residue of his life, to have deviated from his agreement, or to have set up any claim inconsistent with it. And this, I apprehend, might suffice for the presumption of a conveyance from him to Samuel Gates, if it Avere necessary to make it. But I do not consider it necessary. The principle which makes such evidence binding on the party docs not at all rest upon such presumptions ; it stands upon higher and better' ground. The law is ever the guardian of good faith, and interposes, by a wholesome rule, to prevent its violation. Who does not see that it would be a breach of good faith if these admis- sions and these agreements could be thus set aside ? The affairs of life could not be carried on with safety unless such conduct could be relied on with perfect certainty. It would doubtless be more prudent — better in any respect — if the parties in such cases executed deeds to perfect their intentions ; but men, especially in these remote situations, do not general- ly conduct their business with a legal adviser at their side ; and though in some matters technical and legal difficulties may interpose to defeat their arrangements, the law will generally be found subservient to justice, as I think it is here. The doctrine is thus stated by Starkie (Stark. Evid., 4 part 28) : " If a representation be made of any fact with the view to influence the conduct of another, or to derive any advantage to the party, and which cannot afterwards be denied without a breach of good faith, such an admission will not only be evidence of the fact, but will usually preclude the party who has made it from insisting on the contrary. In such cases the admission does not merely operate as presumptive evidence of the actual truth of the fact, which must give way to positive truth of the contrary, but precludes and, as it were, estops the party, on grounds of policy, from repudiating his own representation, and renders the actual truth of the fact immaterial." Here Woodherry, having agreed to a bound, settled and established with his neighbour — not hastily, nor inad- vertently, nor ignorantly, but with a full and formal purpose of putting an end to all doubts and disputes between them — has in effect renounced all right to the land in dispute, and recognised and admitted, to the fullest extent, that the land and the right to it was in Gates, and cannot now consistently with good faith, and therefore shall not be permitted to go back to shew title in himself. And this appears to me to meet the whole WOOniU.URY (. GATKS. 261 argument which has been uliirossed to us in support of the ruU'. Th> Statute of Frauds does not touch tlic case ; there is no transfer of the land hero, but the facts in evidence conchidc the party from re1jin<» on title to disturb his own agreement. The case of Do^. v. d. Motrin v. Rnprr (3 East. 15) supports and conforms this. There the premises — the subject in dispute — hu.l been sid)nutted to arbitration by tlie parties ; the award directed that they sliould be given up to the lessors of the plaintiff, but tlie defendant, not satisfied witli llie award, refused to givp them up, upon which the ejcvtment was brought. The defendant offered. ;it the trial, to go into ovidencc of li'n title, but the learned Judge rejected it, considering hinj precluded by the submission and award from disputing the lessor's title. The plaintiff thereupon recovered. A rule niiti for a new trial was applied for, an 1 refused, for per cnrltun ; the award cannot have the operation of conveying tlie land, but there is no reason why the defendant may not conclude himself, by his own agreement, from disput- ing the title of the lessor in ejectment. If, then, the title or boun !ary settled by an award cannot afterwards be disturbed, an 1 a party is conduled from showing that he has the legal title because he has agreed, prospectively, to be bound by the award, surely the very establishment of the boundary by the parties themselves, for the purpose of putting an end to their differences, and their own direct agreement to abi:Ie by this boundary, cannot the less conclude them ; and therefore this autiiority alone seems to me decisive of the present case. I have always .so considered it ; and on a former trial of this cause before myself, in which the Jury did not agree, and no verdict was given. they received from me the same instructions as they did again from his Lordship. The incorrectness of this seemed, however, so strenuously urged by the Atloructj-Gcncral and Jlfr. Jlilrhie at the argument, that I felt desirous to examine the subject more at large, and I have thence been induced to say more upon it than was perhrps necessary. We are all of opinion thai the case was properly submitted to the Jury iipon the evidence, and that the rule nisi for a new trial must be dis- charged. 15 JMCIIAELMAS I'ERM. ISKi. THE ATTORNEY GENEPAL r. PAGE. When the defcndiiiit jnUs in ii ploa mlinittitig ]iliiintitf"s ciuse of iieiion, Imt misiiiji- rn in>iiiiilerial i.«siiP, ninl the piiiiiiiitf joins issue iiiiil obtain;* a vonlict, tlie Court will not award a repkiaJor, but w'll allow plaintill' to outci' up juiiguient on tho co/itl'^ssiou. Tins \v. s an action of deb*- on a rccognizauco. The iloclaration yc^o out the recoffnizance ^vlth the condition which recites an orJer of filiation on the defendant, made by two Jv.sticcs, dircetii.'f); liim to pay a certain sum of r.oiiey to the overseers of the poor ibr the maintainance of the bastard child ; a complaint by them of his refusal to c'o .-o befoic IT. JT. Bvtit. a Ji'stice of the Teaee, by wh( m ne was thereof convicted ; and then foUcv, s the condition that the said defendant should personally appear at the next Sessions, and abide the order then na:le in that behalf, or, if no order shouM be there made, then that the *!efendant should perform the above order of tiie two Justices. The declaration then avers that this recognizance was duly ti'ansmitted to the Sessions, to be there enrolled, and that, although at the said Ses.'^'jn it was ordered and ac'judged that the saiJ urder of the two .)usticf>s shoall stand coniirmed, yet that the said defendant liath not performed the sanu-. To this the defendant has pleaded that, alter the taking of the said recogr" -'.a in i/ic (hc.larnlion viculioiied, he did duly appear at the next tSessio.is, and then demanded that tiie said cause shod I be tried on the verdict of a Jury ; that the Sessions would not pern.ii i, but without any trial hud ordered and adjudge I the said e^ler of the tMO Justices to he confirmed, «.s (c. the aaid (hltiia'ioi/. if stated a, id set fortli, ik.Q. The Al(oriici/-l<:adi r must be awarded. BLisf% J. ^\'e are of a different opi(uou. i'hc doctrine on this subject is thus jlearly stated by Abbott, C. ./., in Lamberf v. Tuylor : "The question whether the plaintiff can have j'ulgmeut or whether there ough': % A'lTOHNKV UENKUAl. r. PAOK. 263 to 1)0 a repleader, depends upon the question whether the plea does or does not contain a confession of a cause of action. If a cause of action be confessed by the plea, and the matter pleaded in evidence be insufficient, the plaintiff is entitled to judgment, notwithstandinj? tuo verdict. If the plea does not confess a cause of action, there must be a repleader." In the case before us, wc have in the i)lca the fullest confession of the cause of action. The recoi^nizance itself and its conditions, and the order of Sessions as set out iri the declaration, are expressly admitted ; but an insuf- ficient reason is offered for avoiding it. That being no answer to the cause of action ah-eady confessed, is rejected, as well as the issue found I'^ereon, and the plaintiff tlien becomes entitled to the judgment of the Coui i upon the confession in the defendant's plea. 4 15. & C, lo2. The question wlutlicr tlhcther a repleader must be a'varded, has usually arisen when such issue has been found against him ; and that was the case in Ijcuulx'yt v. 7V'i/lo,\ already cited. It is said in Jones V. BndoiliK))!, {ii MoL, 227,) that when issue is joined upon an ill plea and a verdict for tlic plaintiff, yet he shall liave judgment: for the defendant sliall not take advantage, after a vcrviict, of his ill pleading. But, notwithstanding this 'expression, it seems that tue £,l?'"i-'ff '° only entitled to liis judgment by reason of the confession in the defendant's plea. And so thii^ case appears from the report in Lord Raijmond, (1 Ld. Ray., 90) : '• It was an action of trespass. The defendant pleaded a justification wliicli was had in substance, and upon issue joined thereon, the plaintiff obtained a verdict. It was decided that judgment must be for the plaintiff upon tlic confession, and not u])on the verdict, and that a new writ of inquiry must be awarded for the damages, for the issue being im- material, the Jury couM not give damages, tliercfore the verdict \\as set aside, and judgment given upon the confession of the defendant, who hath admitted the trespass." iSo that even there, when final judgment could not be obtained without the aid of a Jury, a repleader was not awarded. I will merely mention another case to illustrate this rule. It is to be found in 14 Viner, Judgment 1)., and is one of the cases cited 'jy Pavhr, H., in Gunjiini' v. JhirrlU, in which the whole subject underwent a very full dis- cussion. " In debt upon oldigation, if the defendant acknowledges the sealing and delivery of the oljjigation, but that he delivered it to J. T. to be kept till certain conditions performed, and that J. T. delivered it before the conditions performed, and so not his deed: upon which issue is joined, and a verdict that it is his dee;!. Yet the plaintiff shall not have judg- ment upon the verdict, because "t is no good issue, inasmuch as he could not conclude, and so not his dee "gainst his own confession. But the plaintiff shall have judgment upon che confession of the defendant, in his plea in bar, where he has confessed the deed. 6 Bing., N. C. 527. :^C4 ATTORXE\ (iENEKAL PAGE. The case oi I'litriu'r v. Lcr, [2 M. & W'.. IDl ), which was rcliod on bf .)//■. Grdi/ at the nrj^unient, does not at all mliitate with these autlioritlci. to which I have rcCerred. Tiiat case is distinguished from tliis. iina u replication was there awarded on the express tiroun 1 that there was no plea containing a confession of a cause of action. That ease, however, it may be observed, has been overruled by the same Court in Hvrhjn v. Mitr.!,;U, T M. & W., 622. Our judgment then, is, that the rule for a new trial must be disohar^i^J, ;*ud that judgment be entered for plaintiff upon the eonfessioii. KASTKK lERM, 1847. ALMON V. COCK. One of several trustees can indorse a note payable to their testator. This was an action of assumpsit upon a promissory note, tried before? Mr. Justice Bliss, at Truro, in which a verdict passed for the defendant, with leave to move by consent of both parties, to enter a verdict for pkiiii- tiff, for the amoimt of the note, if the Court should be of opinion that the action was maintainable. The plaintiff was the indorser of the note, which was originally payable to Nathaniel Marstprr,, and after his decease was indorsed by one of his executors to plaintiff. Hallibxtrton, ' '7. It was objected that an indorsement by one executor where theiv ere others, was insiiflficient : but, on looking into the cases, it is quite clear that this objection cannot be sustained. In Kilsar.k V. Nicholson, (Cro. Eliz., 478-9r)), it was adju 'god, after two arguments, that where one executor delivered to the defendant a bond wherein A. B. was bound to the testator in a sum of money, whicli bond the executor delivered to the defL'udant, in satisfaction of his (the execu- tor's) own proper debt, the surviving executor, after the death of him who had made such delivery, coul.l not maintain detinue against the defciu'.ant to recover the bond back. On the first argument the Court seemed to be divided; but, on the second, three Judges against one gave judgment for the defendant, on the ground that the executor might have released tJie debt, and therefore he might give and dispose of tlic instrument of the debt. In Jaromh v. Ilanroorl, 2 Vesey, 2G7,one executor had mortgaged leasehold property of the testator; Sir Jnlni Struu;ic, in giving the judg- ment of the Court of Chancery, said : "• Nothing is clearer than thi.-*, and 1 never heard it questioned in case of executors, that each executor has the entire control of the personal estate of the testator, may release or pay a debt, or transfer any part of testator's property, without the coui urrence of tlie other executor." There was a further olyection to the amendments allo\\-ed by j\Ir. Justice Bliss at the trial, but we are of opinion th;it tliose amen Imcnts were properly allowed. The main point in dispute between the parties was, whether one executor coul I indorse a not due to the testator without the concurrence of the others ; and the amendments allowed that ques- tion to be properly presented to the Court. Y ! ■' i '2{U\ SANKOHl) -. SANKORD. Wi' an- tlicrcforo of opinion tluit the verdict should be entered for the plaintifi' for £'2G Gs. (5d. — the sum agreed upon at the trial — if the Court should be of opinion that the action was maintainable. r ™ i ' LESSEE OF SANFORD v. SANFORD. Arbitr.itors iictinj^ under n, submission rcquirinf; the award t bo made in writing, ready to be delivered to the parties at a cei'tnin day, cannot, alter having made such an award, set it a.^ide and make !i new one. TiiTs was an action of ejectment tried before the Chief Justice at Windsor. The folIowin/ Vaiifjlia)!, ixwd stich umpire as they should select, "so that the award he mack' in writing, rcadi/ to lie. ihtiiereil to tlie said parties on or before the lotli of November then next ensuing." The arbitrators selected Ai-vhilxihl Smith as such umpire ; and the three, within the time limited, mad.c their award, which was in writing, in duplicate, signed and scaled by them ; and when so made, was consi lered by them as final. Each of the two arbitrators then took one of the awards thus executed to deliver them to the parties. After this, tlie plaintiff, who, it would thus appear, had been made acquainted with this award, stated that a mistake had been made in deciding on the line, by which the rights of other persons were affected ; and thereupon the arbitrators and umpire again met, without the defendant having notice or being present, and ma;ie a second award — the first being put by as a tiling of no use. At the trial, the plaintiff pro;hiced and offered in evidence this last award in suppoit of his case. It was objected to, on the part of the defendant, on the ground tliat the arbitrators, having already made their award, M-crc fundi ojlirio. The Chi(f Jiinf ire hc'in^ of tliat opinion, rejected it. The plain- tifi* then called the umpire, who stated the above focts, and produced the first award, which he sai 1 liad been over since in his possession. The reception of this award was also o]iposed, but was admitted liy the Chiiict was taken for the plaintifi' by consent, subject to a non-suit to be entcro I if tlie Court should be of opinion that the first award was improperly received. A rule 7iisi fo this effect was granted, on Mdiicdi the case was argued in Micliaelmas Term. Bliss, J. We have no doubt that the ruling at the trial was in every way correct. Tlie cases of Jimiru v. I'mrser, 4 Kast. 584, of Henfrce v, Broi.iJr.i/, () lilast. 'M)d, and of Jtvinf, v. FAnon, 8 East. 54, are conclusively SANFORD /. SA.NFOUD. 267 in point. In all these, it was decided that under a submission, such as that in the present case, — " so <^^hat the award be made in writing, rcndi/ to he delivtred by a certain u. v," — an award made within the time was complete when it was ready to ^te delivered, and did not require delivery to give it effect. The arbitratc-s, according to the very terms under which they derived their authority, had then completely exercised it. Their authority was thereby exhausted, and at an end. Here, however, something more was done by the arbitrators ; and if both parties did not receive full notice, .vhich was not necessary, (2 Saund., G2nd note,) one at least had been fully informed of the award ; and I should consider that there had been a sufficient publication, if the submission had even re- quired this. In Brooke v. Mitrhclh (0 M. & AV., 473,) the rabmission requ'.red that the award f-hould be made and published on or before a certain day. The award was executed in the presence of two witnesses, but the plaintiff died the next day before he had notice that it was ready. The award was upheld. Farke, Ji., sai;l that after execution in the pre- sence of two witnesses, it was a complete act, so far as the umpire (who made the award) was concerned — that he could not have altered it ; and Ahhrson, B., says: "The a^'ard is made and imhUshed when the arbi- trator, by some act, has expressed his final determination in the matter referred to him." In the present case, the arbitrators had clearly expressed their final determination when tlie award which they had made, and which was considered final by them, was put in a train to be delivered to the parties ; that which they did aftrrwards, at the rctpicst of the plaintiff, was a void act, but it would not make void that award which was already well made. An alteration on the tini' of the award itselft \»adi' by the arbitrators afterwards, would not invalidate the award. It would stand good as it was originally made [Hoifrci' v. Br oiifri/) : nor coidd any subseipicnt at- tempt by thcni to set aside their award as a thing of no use, or any opinion expressed by tliem that it was so, destroy its validity. They could no longer do any act or exercise any judgment on the matter. The objection raised by the defendant, that the award was void because the seals had been taken otl" — supposing the submission had required it to be under seal — would be without weight if it had been done by the aibitrators as a revocation of their act, for this woul.l have been equally beyond their power, and, after their authority was ended, must be consi- dered in the light of an act of spoliation by a stranger. That, however, was not the fact. It appears, by the evidence of the umpire, that it has been the effect of accident or carelessness. W(> think, therefore, that the verdict wa,s right, and the rule to enter a non-suit must be discharged. I ' 1 'i % I \ ''■ .■ :• .'H8 M.KENZIK ,. LONG. McKENZIE r. LONG. NVIr'11 a suit is brmiixlit for tlm ivcovory > >^ -> #^ /A V Hiotographic Sciences Corporation « #" ;\ \ ^\ gard must, 1 think, be had to con- venience — for inconvenience, pushed to an extreme, amounts to a neces- sity. In all such cases, the question, I take it, will be, whether, fairly and reasonably considered with reference to the situation of the land and the circumstances of the case, the necessity whicli create:! the way has been removed or not by that which is alleged to have put an end to it. Now, what is that way which the purchaser of land so situated in a case like this claims, and which the law gives him ? It is a way over the land of the seller to and from the nearest public highway. Before this way can be superseded, or the necessity which created it be terminated, there must be another means of access provided from the land in question to that nearest public highway. To give the party the means of reaching this highway by a remote and circuitous route, when he has a direct and immediate communication with it, is not giving him a new road to the destination to which his way of necessity conducted him, and does not put an "nd to the necessity for its continuance. The argument of Mr. Wilkins would lea 1 to the most extravagant conclusions. According to it, if any new road now exists by which the plaintiff can ultimately reach that to which his present way conducts him, though it should carry him first round the whole township by a day's journey or more, the necessity for his right of way is removed, and the way itself at an end. The pre- sent case is not quite so extreme a one, but it borders closely on it. The plaintiff has now, under his original right, an immediate access to a neighboring highway ; a new road has been opened in the rear of his lot, which, by taking him some miles out of his way, will at length bring him to the highway in front. This is not merely a less convenient way : the reasonable enjoyment of his land — the ordinary benefit to be derived from it — can no longer be had, unless he can still use the way which he acquired when it was first purchased. In Morris v. Edgington (3 Taunt. 31), Mansfield, Ch. J., says : — "I know not how a way of necessity has been expounded, but it would not be a great stretch to call that a neces- sary way without which the most convenient and reasonable mode of enjoying the premises cannot be had." The ivipossihility of passing to and from the land is indeed removed by the new road, but the uec^ssibj still remains for the use of the old way, if the land is to be beneficially 280 GAKDNER c. HORNK. fiijoyt'd, — and it is this which creates the right, and supposes it to have l)ccn originally granted. It is next contended by the defendant's Counsel that the proof does not support the right of way as it is set out. The declaration states (third count) that the plaintiff was lawfully possesseil of certain messuages, with the appurtenances situate, &c., by reason whereof he is entitled to a way from the said messuages over the land of the defendant to the main road, and back again over the said land of defendant to the said messuage — or, as it is set out in the fourth count, towards the said messuages. It ap- pears from the evidence that, at the time of the purchase of the plaintiff's lot in respect of which this way is claimed, there was no house then on it, and that but one has been since built, which was standing on it when the action was brought ; and it is argued that the supposed right of way could not belong to the plaintiff hy reason of his possession of that which did not exist at the time when the right itself commenced, and that the termini of the supposed way are incorrectly set out, as it docs not and could not, under the proof, either begin or end at messuages, when but one exists. "With regard to the first, it may be answered that the right of way is supposed to have been given to the land for its full beneficial enjoyment for all purposes to which the land might be applied ; and the moment a house was erected on it, the plaintiff became entitled to a way to the house, and might claim it from that time by reason of his possession of the house, though he thus certainly very unnecessarily abridged and re- stricted his claim. I think, also, that there is no substantial mis- description here, and no material variance with respect to the termini. The way is claimed to run to and from certain messuages ; it is proved to run to and from a certain lot of the plaintift''8 — and once touching that lot, it would continue to any number of houses that might be on it. There is, however, but one house, and that one, at all events, becomes a terminus for the way in question — and to that extent the description is satisfied. If there were more houses than one, it is obvious that there must be a variety of termini. A road that leads to two or more houses must, as respects each house, terminate with each. The plaintiff may have claimed a way to more houses than he can prove, but it is, in fact, a way to so many distinct and different houses, and his claim to one is not the less made good though he fail in making out the rest. It is a divisible pro- position that there was a way to several houses, under Avhich the plaintiff may, I think, shew that he had a way to one, as he had done in this case. We are of opinion, therefore, that the objections to the verdict cannot prevail, and that the rule to set it aside must be discharged. COLLINS r. BARSS. 9it COLLINS ('. BARSS. era The owner of laud on a sea shore or on a navigable river u entitled to free ingress and egresa thereto and therefrom. Hold that no length of time during wliiuh occa- sional acts of obstruction were permitted would debar him of those rights. This was an action on the case for disturbing plaintiff in the use of his wharf and dock. Verdict for the plaintiff. Rule nisi to set verdict aside. , . . Hallibuuton, C. J. The first objection taken by the Counsel of defendant was, that plaintiff had declared upon an exclusive right in him- self, and had not proved it. On refcrring^ to the declaration, we find that the plaintiff declares that he was lawfully possessed of a certain wharf, and a certain piece of land called a dock adjoining to the said wharf, with the appurtenances, dec, and by reason thereof, was and still is lawfully entitled to the free and uninterrupted enjoyment of the said wharf and dock ; and then proceeds to state that the defendant had disturbed the plaintiff in the enjoyment of this wharf and dock by placing a vessel, chains, &c., across the entrance, so as to prevent the free ingress and egress thereto and therefrom. " ' On turning to the proof, we find that the plaintiff shewed both title to and possession of a wharf and dock at Bristol, in Queen's county ; and having done that, his title to the free and uninterrupted enjoyment of buth is conferred upon him by law, unless some right is shewn to interfere with it. Property of this nature on the sea shore is as much protected by the law as inland property. If it is so situated as to interfere with public rights by injuriously narrowing the point, or otherwise proving detri- mental to navigation, it can be indicted and abated as a nuisance. But until a Jury decide (see HnU on sea shores, p. 214, 2 Stark. Rep., 511,) that it is a nuisance, no individual can disturb the possessor in the enjoy- ment of it without liaving a right to do so. And as there was abundant proof of the defendant's having so disturbed the plaintiff, I think that the learned Judge was correct in turning the attention of the Jury entirely to the defentlant's claim. It now remains for us to consider whether his directions relative to it were right, as the defendant's Counsel complains of mis-direction. The defendant rests his claim to a right to obstruct the enti-ance into the plaintiff's dock upon the ground of his having frequently placed ves- sels and chains in a similar situation for a long series of years, even before the plaintiff's wharf was erected. The learned Judge told the Jury that these occasional acts, however long continued, could not establish an exclusive right in the defendant to 282 COLLINS V. BARSS, this part of a navigable river, or justify him in obstructing the plaintiff from the free ingress to and egress from his wharf and dock on that river. All bays, creeks, arms of the sea, and navigable rivers within the Queen's dominions are public highways, open and common to all her Majesty's subjects. But they differ from highways on the land in one essential particular : the Crown can make no grant of any part of a high- way to a subject. But for the purposes of commerce (for the convenience of which wharves are indispensable) the Crown can grant portions of the shore, and of the land adjoining to it under water, to individuals. It is stated in /Itill on sea shores, p. 15 : — "The Kings of Englan I have fre- quently, and from the most ancient times, exercised their right of owner- ship in the sea shore by making grants thereof to the subject, accompany- ing grants of the terra Jirina adjoinintj, and by similar forms of grant." Much stress must, I think, be laid upon the words " accompanying grants of the terra firma adjoining," because that substantially assimilates these highways on the water to highways on the land, and preserves the prin- ciple which establishes that the Crown can exclude no one from the use of the highway, or interrupt the free egress from or ingress to it. Tlic occupant of land on the sett shore has as much right to use the waters on that shore for the purpose of ingress and egress as the occupant of pro- perty adjoining a highway has to use the highway for such purposes. Could a grant be made to another of the land covered by water in front of him, he would be deprived of that right ; but if a grant be made to himself, and he erects wliarves and stores thereon, his right is preserved, and the public are more probably benefitted than injured by auch erec- tions. Should that not be the case, and the erections should be injurious to the public, the passage I have already cited from Hall shows in what maimer that injury is to be remedied. So long, then, as the plaintiff is possessed of this wharf and dock, he has the same right of ingress and egress to and from it on the waters of the harbour of Liverpool as the owner of the shore before this wharf was extended from it had to ingress and egress to and from the shore to those waters. The waters of that harbour formed a highway to and from that shore, on which he had a right to pass and repass at pleasure ; nor could any dis-user on his part, or any acts of interference with it, however fre(iucnt or however long continued, depiive him of that right. If a man were in the habit of leaving his truck, his cart, or his waggon on the highway opposite to his neighbor's door, and his neighbor made no complaint for years, no length of time could establish a right in the owner of such cart, &c., so to place them, or compel his neighbor to submit to the inconvenience, whenever he felt it to be one. This law is as applicable to the water as the land, and I therefore think that the learned Judge was right in telling the Jury \ JilGKLOW r NORTON. 283 tliut tlu urcasionul nets of occupation on which the defendant's claim wnp founded could not Htipport it. It is obvious, from the nature of property of tills description, that the mutual convenience of adjoining owners must frcfpicntly require much mutual accommodation ; and if, therefore, such a riliss, J. — The Government officers had notliing to do with the ground on which your coffer-dam was placed.] The wall to he built by the plaintiff was upon the spot where the Government coffer-dam was designed to be placed. [Bliss, J. — Your damages arc taken for tlie cost of botli coffer-dam and Mall.] Fairhanls, Q. C. It is not now necessary to state in the declaration with IP s HILL V. FRASER. 29a aration with the same pfirticularity as before. This action is not brovlght upon the contract, but is in the nature of an action of deceit. [Bliss, J. — I think the Attorney-General puts the case upon a safer foundation than there is a warranty. J A false representation is a warranty. Chitty on Contr., 73. Add. on Contr., 167. There being no demurrer in the case, the whole contract was left to the Jury to determine upon. Tlie Court will not grant a new trial in cases like the present. 1 Cr. M. and R., 89. 2 Ring., 49o. 5 T. R., 425. 2 T. R., 113. James R. Smith. The plaintiff entered into the contract on the faith that a certain fact represented on the plans, was true. That representation was not, in fact, true. The " hard foundation " written on the plan, docs not exist. There is nothing but rock and mud. It was the misrepre- sentation, and plaintiff is entitled to view it as the concealment, of the fact. [Rliss, J. — The declaration contains no allegation of a scienter.] That is not now necessary. Any representation on the faith of which a party is induced to do any act, whether such representation be known by the party making it to be true or not, is in the nature of an express warranty that the thing is as rcprcsei ted. 2 East., 446. 5 M. and Ry., 124. 2 Htark, 561. 2 Scott, N. C, 685. 3 Camp, 506. 1 Stark, 384. 5B. & Aid., 240. Add. on Contr., 167, 219. The first contract then, contained an express warranty of there being a sustaining bottom fit for the Govern- ment cofFcr-dam ; the second agreement varied the first contract only so far as regards the construction of the coffer-dam and the payment, and left the first contract with the second incorpornted on it, unaltered as to the repre- sentation that there existed a hard substratum of nine feet capable of sustaining piles, at least for the stone wharf wall ; and as the foundation piles required for the stone wall which was to stand on the site of the Government cofFcr-dam requires a sustaining bottom, the plaintiff is there- fore entitled to damages for his expenditure in attempting to erect that wall under the warranty that such a bottom e.\istcd. It was in evidence that the plaintiff's cofi'cr-dam did exclude tlie water for some time, and the impracticability of the work, as rigards the erection of the stone wall, could not be determined till the water was so excluded, the mud got out of the area, and the foundation piles driven. The defect could not be ascertained until all the expense had been incurred, and plaintiff is therefore entitled to the full amount of damage given by the Jury under the first contract ; and as the second contract, by its terms, is made part and parcel of the first contract, the representation contained in the first contract became a part of the second contract, and the Jury were right in giving damages for the amount of all the expenses incurred by plaintiff in respect of both coffer-daii and stone wharf-wall. J. 11 '. Ritchie. There is no difficulty with respect to the law, in this car?e. There is neither an express nor implied covenant or condition on 800 HILL V. FRASER. II the part of the (lofendauts. By the first contract the liahility is thrown impliedly, hy the second expressly, upon the plaintifl'. It docs not follow because an undertaking is iinprtssihle tliat the person promising to perform it is not liable for its non-performance. It is true he cannot be compelled to fulfil his undertaking, but he will, nevertheless, be answerable in damages for its non-fulfilment. Whether a sustaining bottom existed or did not exist, the plaintiff' must equally fail in supporting the verdict. If there was a sustaining bottom, tlien he fails on that ground ; if there was not plaintifl" knew it, and could not recover for any sum expended after he had discovered that fact. If we are to believe the plaintiff, he very early in the work must have discovered the fact of there being no sustaining bottom, and yet, after that discovery, he went on expending thousands of pounds. He experiments in the hope of getting the amount of his con- tract, and failing, expects the defendants to pay for the cost of those experiments, without giving any notice that his experiments are being made at their expense. 15ut, supposing there was no bottom sufhcient to sustain plaintifi's coffer-dam, it does not thence follow that there was not a bottom sufficient to sustain that designed by the Government, which, having greater gravity, did not require the piles to take so tenacious a hold of the bottom. lion. ir. Yotoig, Q. C. The real defence of the Government is, that there is a sustaii-ing bottom, and that the main foundation of the action is untrue in point of fact, and that is the reason the legal objection was not taken in the first instance. By demurring we would have denied the Government officers the opportunity of showing, as they have done, the bottom really to exist. To sustain this action fraud must concur with misrepresentation, or there must be an express warranty. It cannot be pretended that either of these exist here. 2 Kent's Comm., 479. Dough, 20. Chitty on Contr., 390. 3 Campb., ;*51. 4 B. and C, 115. 14 M. and W., 058. 8 Bing., 52. If the mere falsity of a representation were sufficient to sup- port an action, there would be no necessity for alleging the scienter in the declaration. 14 M. and W., 413. Thoj-e could be no fraud here, for noc only was there ample opportunity afforded the plaintiff' to inspect the bottom, but, by the terms of the specification, he is required to do so. 10 M. and W., 147. 3 B. and Ad., 125. This action could not be upheld without confounding a representation innocently made but untrue, with a representation not only untrue, but fraudulent. Now the distinction between the two is firmly established by the modern cases, especially by the decision in Ormrod v. Heath, 14 M. and W., where the doctrine is clearly laid down. Did the argument turn upon the doctrine of an implied warranty, derivable, it may be, from the first contract, there might possibly be some show of reasoning for the plaintiff; but the second contract puts an end to that, and the second clearly supersedes the first. Bmss. ,A This case comes before the Court upon a:rulc ?? /-it to set aside the verdict which was given for the plaintiff, and to grant a new trial. Several points were taken and argued at great levgth before us, in the course of the last Term. The defendants represent the Crown, by whose permission and authority they defend the present action. It is brought to recover damages sustained by the plaintiff, as the declaration alleges, in consequence of certain contracts made by him with )\'in. Henry Itohinsov, Deputy Commissary-General, acting on behalf of our Lady the Queen, for building a coffer-dam and stone wharf-wall at the Ordntnce Yard, in Halifax. The declaration further avers that the contract was based upon certain ])lans and specifications which had been previously exhibited to the plaintiff, and which formed part of the contract, by which it was represented and made to apnear to him that there was a sufficient substratum below the water into which piles could be driven and securely placed for the formation of a coffer-dam to exclude the sea, and also to support a foumlation of timber and plank on which the stone wharf-wall was to be built. That on the faith of such representation, and in the belief that the nature of the work required to be done was truly repre- sented on such plans, and was capable of being accomplished agreeably thereto, the plaintiff entered into the contract, and in the same faith and belief afterwards modified and changed the same by a further agreement respecting the work ; whereas the representation made by the plan was entirely erroneous, and no sufficient substratum under the water existed for driving and securing the piles necessary for the work, which was, for this reason, incapable and impossible of execution, and the plaintiff was compelled to abandon the same after great loss, cost and damage, had been expended and incurred by him. It is also further alleged that the alter- ation in the agreement so made by him was made by his being misled by the said i)lan. There are two counts in the declaration on tliis subject, but the above combines all the essential statements and allegations in the two. It may be as well that I should hero state concisely the material facts of the case — such, at least, as appear necessary for the consideration of the matter before us. The Hoard of Ordnance, intending to erect a stone wharf-wall at tlic Ordnance-Yard in Halifax, advertized tenders for build- ing a coffer-dam by which the waters of the sea were to be excluded, and for then erecting the stone wharf-wall. Plans for the work had been already made by the ofiiccrs of the Royal Engineers, and these, with specifications for the same were exhibited, and seen and examined by the plaintiff', who, having made his calculations upon them, tendered for the work, and his tender was accepted. By these plans and specifications the coffcr-dum as well as the structure supporting the stone wharf-wall, were to be found by driving down piles into the firm and solid substratum. 'It ^ i * > f 302 HILL V. FRASEK. II Avliicli was supposed to lie below the water ; and it is perfectly dear by the evidence on the part of the defence no less than by that of the plain- tiff, that tlicsc plans and specifications do undoubtedly assume that such u solid substratum existed there capable of receiving and retaining these piles ; so much so, that no one conversant with such business could doubt the fact. This, indeed, is self-evident on the face of them. Upon this tender a contract was entered into between the plaintiff and IT. //. Hohinsoii, Deputy Commissary-General, on the part of her Majesty, dated 22nd November, 1849, annexed to and forming pirt of which were the said plans and specifications, and certain conditions of contract ; and the plaintiff was to receive for the whole work the sum of £7,999 sterling, in four several payments as the work advanced, the last payment to be made one month after the whole was completed. Subsequently to this the plaintiff, tliinking that he could erect a coffer-dam on a cheaper and better principle than that described in the plans and specifications, applied to CoJoiui Savage, Commanding Oflicer of the Royal Engineers, for leave to substitute his own plan in place of the other, offering, as an inducement to the Roard of Ordnance, to carry out the stone wharf-wall fifteen feet further into the sea : and this, of ncccssitj', required that the coffer-dam should be also advanced, in like manner, into the sea. The nature of this new plan, and the manner and principle on which he proposed to bull I his coffer-dam, were not communicated by him, but appear to have been pur- posely kept back, from a belief that, if they were known, his proposal would not be acceded to. It was, however, finally accepted, and a new agreement was thereupon made between tlie same parties as before, dated 4th April, 1850. Ry this it was agreed "that the plaintiff should carry out the stone wall to the extent of at least fifteen feet in an easterly direction into the harbor, beyond the distance specified in the first con- tract, and that he should be at liberty to build the coffer-dam therein also mentioned according to his own \ilan, and by such ways and means as he shoulil think fit, so that the water be kept out, and no impediment be offered to a proper laying of the foundation of the wall." It was also thereby agreed tluit no payment should be required till tlio wliolo work was completed, surveyed and accepted, and that the plaintiff should give £3,000 additional security for the faithful performance of the contract, and that the original contract, except in these respects, should continue in force. Under these contracts — the latter thus varying from and modifying tlic former — the plaintiff began and continued his operations at the coffer-dam on the advanced site and upon his own plan and principle, until he had erected it and had removed the water from within wholly or nearly so, and had commenced driving the piles for the foundation of the wall, when liis coffer-dam gave way to the pressure of the sea from without, ami the V HILL V. FRASER. 3oa whole work entirely failed, ami was ultimately abandoned as hopeless. The cause of this failure was attributed by the plaintiff altogether to the want of a sufhcicnt substratum to receive and retain the piles of the coffer- dam ; whilst, on the part of the Government, it was alleged that the failure was produced alone by the abandonment of the original coffer-dam, and the substitution of a new, experimental, and insufficient one, in place of the oidy approved scientific mode of building it. The (piestion as to tlie existence of a sufficient sust;uning substratum for piles for the vork, in reference both to the first and second agreements, was put directly in issue by the 1st and 8th pleas, iiiul formed a very prominent part of the inquiry (hiring the long and unusually protracted trial of this cause, a large body of evidence having been directed, on both sides, to this subject. The verdict of the Jury has, so far, decided the question in favor of the plaintiff. "We have been urged by the Counsel for the defence that the weight of the evidence on this point is so strongly against the plaintifi', that this verdict cannot be sustained. They rely particularly on the experimental soundings and examinations made under the direction of the Royal Engi- neer department subsequent to the abandonment of the work, by which they say tlie existence of a sufficient, solid, and supporting substratum for piles, is actually demonstrated and put beyond doubt. This, if it were so, would certainly outweigh any otlier evidence of a less positive and conclu- sive character, on the point ; but the plaintiff has also given just the same sort of evi Icnce resting on the same test of experiment, namely, the soundings taken hy Ooodi/ car i\rn\ the driving of piles both in the progress of tlie work and afterwards : winch demonstrate as clearly the existence of a rocky bottom incapable of receiving and sustaining piles. Between all this very conflicting testimony the Jury had to decide, and they have 'itifi"s claims and submitted by him, which arc included in the amount fojmi<£ by the Jury, which ought not to have been allowed — as has been, I think- vsatisfactorily made to appear. If the excess in the verdict had depended on these items alone, it might have been easily remedied witli- out resorting to a new trial ; it wouhl then have been a matter of simple fomputatioo, and the verdict would have been at once reduced to its just HILL V, FRASER. 30.5 amount. But the excess, on the other ground, cannot Ijo thus treated. Wo can see dearly cnouj^h that the verdict inchides damages heyond \vhich the jdaintiff is entitled to receive, hut we have no means of sepa- rating the sound part from that with which it is incorrectly mixed up, and of reducing it to its legitimate measure. A new trial hecomes, therefore, indispensahle. Wc should, however, do great injustice to the plaintiff himself, and only lead him into incurring heavy and useless expense a second time, if wc were to stop hero and make tliis rule ahsolute upon the single, narrow ground, which I have just stated. The right of the plaintiff to maintain this action at all has hcen strenu- ously denied, and this was, indeed, the main (piestion with which the Court was occupied in the long and very able argument during the last Term. I may say that I have not from the first entertained a doubt upon tliC point : and it has been only from tlic large amount involved in the question, and the peculiar character of the litigation itself, that I have wished — in common, I believe, witli the whole IJench — to examine most fully and carefully the whole case and the arguments which have been addressed to us, that I may not be supposed to have given an opinion except on the most mature consideration. The declaration, as we have seen, does not allege that there was a war- ranty by any one on the part of the CroAvn, tliat such a substratum for holding piles existed there ; it rests the case merely on its being repre- sented by the plans and specifications that such a substratum was there. Nor does the evidence go beyond this. Again ; there is no allegation that this representation, though It was untrue, was known to be untrue, or that it was fraudulently made, nor was there any evidence to that effect. There was indeed no room for such a supposition that the commanding officer of the Royal Engineers, in the execution of a costly and important work on behalf of the Government, could act with such singular baseness and bad faith as to submit ])Ians and specifications which he know exhibited an untrue representation ; yet here it would have been done, and that not only without niotive, but knowing, as he must have seen, that it would inevitably defeat the very undertaking which he wished to carry out. The evidence upon this leaves, however, not a shade of doubt. Colond Savage, under • horn the proceedings took place, states not only that he fully believed that such a bottom or substratum existed as the plans indicated, but that oven now, notwithstanding the plaintiff's failure, he still believes it, and that, if it is there no longer, it is o\\ Ing to the dis- turbance of the bottom by tlie water which has since ilowcd in on the destruction of the plaintiff's coffer-dam. And it may be added that the strong evidence introduced on the part of the defendant to establish the flvct that such a substratum was still tliere, though it may not have : ', ■ ■ .i 306 IIILI. r. FRASER. ii satisfied a Jury of this, sliows at loast the porfcct boliof which was cnlor- taincd on this suhjcct, and tin* ^^(U) 1 faith of tho dcpartninit in the niiitter. There is nothinj;, indeed, in tlie whcde eviiU'nee, to iini)U;4;n it. If the ease, tlieii, had rested upon the first eontraet, and tlie fiilurc of tho phiintilf liad resulted from the absence of a suHicient siistaiiiinjj; bottom to hold the piles driven in the performance of tlie work iindrr it, the same (piestion would have arisen, whether tlie plaintiff could maintain un action at all; and that was nuieli discussed at the arj^umeiit. Looking.'; at it as this decision alone puts it — as a mere matter of misrepresentation — I should not entertain any doubt on the subject. Without f;oin^ at large into it and the numerous authorities on that point, 1 may content myself with referriu}^ to two of the latest : tlu.t of CdHiiin v. /■'rans, 5 U, ]J. II., 8J0, and Onnrod v. //.■»//(, 11 M. and W., G')8 ; in which the previous cases are noticed. In the former of these, Tiinhil, C. ./., givinjf the opinion of the Court of J'lrror, says: " The current of th(> authorities, from J'dtilii/ V. Fi'ccninn, 3 T. R., ol downwards, has laid down the gene ral rule of law to be, that fraud mast concur with the false statement, in order to give a ground of action.*' 15ut, if we set aside this verdict, and make the rule absolute for a new trial, tiie plaintiff may amend his decla- ration, and then the (piestion might be brought before us legitimately wdiich has already beeu raised in his behalf: whether, under this agree- ment and the plan and specifications which form an essential part of it. there was not an implied covenant or warranty on the part of tlic Crown of the existence of such a substratum as was represented to exist, and as was requisite for the work contracted for. The plan does, as has been already stated, most certainly exhibit and represent that, beneath the water, there Mas a substratum into which the piles coidd be driven, and the specifications recpiire that the work should be performed by driving piles into this substratum ; and the contract was made to carry out this work. The existence of this substratum is thus an essential ingredient of it. Without it not only would the contract not have been made, but the work could not have been done, and the Crown would have stipulated for an impracticable and impossible performance. Now I must confess that, under such a contract, I incline to the opinion that there is an implied warranty on the part of the Crown, that such a substratum was there. 1 must not be understood to say that any mere representation niade bona fide by one party to another, by which he has been induced to enter into a con- tract, can amount to a warranty ; for that would be holding that misrepre- sentation without fraud woidd give a right of action, in the very face of the strong authorities which I have cited to the contrary. But the distinction appears to me to be between the representation which precedes and induces the contract, and the representation embodied in and forming a part of the contract itself. And I cannot but think that whatever is HILL V. nUSKR. 307 implied rc>j)rcs(>iiteil by one party in a contract, of ho essential a hafirc that the very contract is founded upon it, and cannot be carried into effect without if, anuMints to a warranty of the matter ho revn'esented. And this appears to me to be tlie cane under the first af^reemcnt. It is, however, wholly unnecessary to p>nsuc any further the conside- ration of this point. The case does not turn upon the first aj^reement, but altoffetlicr on that which was subsccpiently entered into on the 2-lth Ajiril, I8r>l, i)y wliich the plaintiff undertook to build a coffer-dam "according to his own plan, and by such ways and means as he shoidd think fit," and fifteen feet in advance into the sea, beyond the site of that which was to have been built under the first contract. Under this he commenced and carried on his work, and incurred those heavy expenses which he claims to recover in the present action, and by the failure of which work — to whatever cause that failure was to be attributed — he was unable to com- ])lete his undertakinpj, and the whole was ultimately abandoned. Now what ri<,dit of action can he have in respect of this ? The very ground on which it rests, altogether fails him. The plans and specifications refer to the site on which the coffer-dam and wharf-wall were to be built, which arc the subjects of the first contract. Tliis is clear enough on the very face of the papers. They could refer to nothing else. AVhen, therefore, the plaintiff proposed to substitute another site, and so much further into the harbor than that proposed by the officers of the Crown, — as to which nothing was indicated upon the plan — and entered into this new agree- ment to complete it, he took upon himself the wdiolc responsibility and risk of the undertaking, as well as the existence of any substratum or whatever else was necessary for his work. There was, indeed, nothing to show that such a substratum was necessary, nor that the work was to be executed as that provided for by the first contract — by means of driv- ing piles. The plaintitl' had stipulated expressly that he should be at liberty to do it by a plan of his. own, and that plan he had studiously kept secret when he made this contract. lie might still have intended, as it now appears he did, to build his cofler-dam by driving piles, but varying its construction in other very important principles ; but this intention was confined to himself; and if it could have been or was known to the officers of the Crown, of M-hich there is no evidence, it was still a matter with which they had nothing to do, and was beyond their intervention and con- trol, being subject to that of the plaintiff alone. Whether, then, such a substratum for receiving and retaining piles was necessary under the second contract, was a matter altogether for the plaintiif's own consideration. The practicability of the plaintiff's propo- sal and whatever was requisite for its accomplishment, was for him to ascertain, and it might be assumed by others that he had ascctained it ; but, at all events, there was nothing on the part of the Crown or its i 308 HILL V. FRASER. officers that admits of being viewed, in the most remote degree, as a representation of the existence of a snfficient substratum ut this new site. Wlien, therefore, the plaintiff alleges in his declaration " that, misled by the said plan, he made the alteration in the contract," — that is, he entered into the second agreement, — ho had no ground whatever to support it. If he was misled it was his own error alone, and one which neither the plan itself nor the otRcers who exhibited it, can be, in any respect, chargeable. Independently, then, of the rule of law already stated, tliat no misrepre- sentation of a fact by which the party has been induced to enter info a contract will give a right of action unless it is combined with fraud, here there is not only no fraud, but no representation whatever made to the plaintiff to induce him to enter into this second contract. It was his owr. act, and of his own mere motion, and of his own misconception — if there was any — of the purport and effect of the plan and specification; to which he has attributed, it seems, an extended representation which they, by no means, exhibit. And this equally sets at rest any question respect- ing an implied warranty arising under this contract. There is nothing whatever here, from which such a warranty can be implied. The Counsel for the plaintiff have urged — and it is the basis on Avhich tlieir argument seems to rest — that "the second agreement drew to it and embodied all the conditions and representations of the first agreement ;" a proposition which appears to me utterly untenable, and which has, itself, nothing to rest upon. The second agreement does, it is true, stipulate " tliat the original contract, and every matter and thing therein and in the specifi- cation contained, except as herein mentioned, shall remain in force and effect ;"' but in this exception lies the whole pith of the matter. By the first contract, the coffer-dam and wharf-Avall were both to be built according to the plan and specifications annexed. By the second contract the idaintiff was to build the coficr-dam after his own plan, and he was at liberty to adopt any plan that he pleased. The specification and plan thus referred to in the first contract, could not then be applicable to the building of the coffer-dam under tlie second contract, for the very object of the second contract was to set the plaintiff" free from this specifi- cation, and to enable him to build by a different plan of his own ; and as to this, therefore, they were not, and could not, be any longer binding. But the change of site and the substitution of a new and different plan for the construction of the coffer-dam, did not supersede the whole of the first contract. After the coflcr-dam was completed, the wdiarf-wall, wherever it was placed, was still to be built in the manner and within the time already agreed upon : and to this extent the terras of the first contract and the plan and specification which formed a part of it, were to remain in force and effect ; but beyond this — that is, as regarded the coffer-dam, HILL V. FRASER. 309 which is the material point now in question — they were in no way embodied in, and formed no part of this last contract. I'pon these {pounds I am clearly of opinion that neither, as the declaration now stands, nor in any way that it can be amendeil, can the plaintiti' maintain his action. Tlicrc are, however, one or two circumstances 1 cannot avoid noticing, as they appear to exhibit the plaintiff's own views and opinions on this matter, both before and after the second contract had been entered into. When the plaintiff sought to substitute a new coffer-dam in place of that which he had already engaged to build, he stated in the petition which he sent in for that purpose, that, if the first one should be a failure, the loss would full upon him without any blame being attached to him ; whereas, if he were permitted to build it upon his own plan and failed, the blame, as well as tlie expense, would be his just due. Tliis, of itself, appears to imply that the risk, responsibilities, and dilHculties of the undertaking, whatever they might be, and from whatever cause they miglit arise, were all to rest upon the plaintiff himself, if his proposal were agreed to. He did not then seem to entertain an idea — certainly this language would have removed all such from the mind of any other party contracting with him — that his own or the other's responsibility at all depended upon the existence or non-existence of a bottom capable of sustaining piles. He assumed to himself the whole blame of failure if he could induce the Government to accede to his request. But this, I think, is put beyond a doubt when we turn to what afterwards occurred. The plaintiff was to have completed the work by the 31st March, 1851. On the 10th January in tliat year, he petitioned the Master-General of the Ordnance for an extension of this time to the 31st October following. He had been already some months employed in the work, endeavoring to perform his contract, but, as he states in this petition, had met with some serious and unforseen difftculties. An old log wharf, sunk with ballast, was found in his way, thoroughly imbedded in the mud, which it was impossible to detect by his borings. He had then, as it would appear, and as? might have been supposed, resorted himself to that obvious precautionary step to ascertain the nature of the bottom, which it was so important for him to know. But this is by no means all ; he states further that, " in going out the extra fifteen feet, he came in contact with a bed of rock having about eighteen inches of yellow clay upon it." Now it does appear to me quite inconceivable that, if he had entered into this contract upon the faith of I representation made to him of the existence there of a bottom into which piles could be driven, and in place of this and among other difHculties had encountered a bed of rock incapable of receiving and retaining piles, that he should not at once, and strongly, too, set up his right to be relieved, instead of thus applying as a petitioner for the favor of an extension of time ; and taking these two petitions which I have now I' :| 'K It r nio HILL V. FIIASER. '•c'fcrrcd to, toj^cthcr, thoy 1)rinj» to my mind the stronpfcst conviction that, in^cntcriiiy at nil cvi'iits into thi; swhstitiitcd contract, the plaliitifr cannot now impute it to others that he was misled, but must take upon himself, as he lilts said, all the blame and all the loss of the failure ; though one cannot fail to regret that the earnestness, sincerity, and faithful emleavors of the dt'f( ndant to complete the contract, and his costly and liberal expen- ditures on it, to which the commanding ofliccr of the Koyal I'liigineers has borne full testimony, have all entled in such disastrous results. l")i;sn.vnni;s, J. This is an action brought by permission of our Lady the (iueen, against the persons who by permission and on behalf of Her Majesty, have appeared as defendants therein. The pernusslon thus given by Her ^lajesty to institute the suit was, I presume, intended to give the jilaiiititf an opportunity of establishing in a Court of Law the validity of a claim preferred by him against Her Majesty's Government for damages arising under contracts entered into between him and \\'l/lit(i)i Jli'iirij lldliiiiso)!, acting on the part of Her Majesty, fur tlie l)uilding of a co(ler-dam and stone wharf-wall at the Ordnarice-Yard, in Halifax. The plaintiff seeks to recover damages for an unsuccessful attempt to execute the work contracted for, which he alleges he has been unable to perform and has abandoned in consequence of the non-existence of what, by the plans and specilit«tiou forming part of the contracts, was repre- sented to exist when it did not, viz., a solid substratum or suitable foundation v»hereon to construct the same. The Jury inipannellcd to try the cause, after a very elaborate and protracted investigation, found a verdict for the plaintiff, to which several excei^tions have been taken : 1st. That the verdict is against the law and evi.lcnce. 2nd. Against the weight of evidence. 3rd.' Against the Judge's charge. •lib. That the damages arc excessive, and unsupported by the testimony. When this case \ais argued, the strong impression then made on my mind was, that the argument could not be sustained ; and since I have had timq to examine and consider it more fully, I am still of that opinion. It appears that two agreements were entered into between Mr. Jiohiiino)!, Deputy Commissary-General, acting on behalf of Her Majesty, on the one part, and the plaintiff on tlic other. JJy the first agreement, dated 22nd Xovember, 1819, the plaintiff coVenanted and agreed " to build and erect a stone wharf- wall at the Ordnance-Yard in Halifax, in a workmanlike manner, subject to the approval of the commanding officer of the lloyal HILL V. FRASER. 811 Engineer, and also in every respect to do, execute, and perform the Hcvcral matters and things mentioned in and comply with all the stipu- lations, articles and conditions of the specification, and agreeably to the detailed plan, elevation, and section thereof signed by the said Henry O. Jlill and the commanding Royal Engineer." The plaintiff did not proceed to erect the colicr-(hun by means of which the waters of the sea were to be excluded from the foundation of the wall, agreeably to the plan and specification referred to in this agreement, but, desiring to erect it on a new and ditiorent principle, applied by memorial dated 28th Dec, 18-1*J, to the Muster-Oeneral and IJoard of Ordnance in London, for permision to erect it on his own principle of construction, promising if such permission were granted, to build the stone wharf-wall no.t less than 15 feet further into the harbor than was stipulated by the contract he had entered into. In this memorial, after stating that the permission, if granted, should not in any way affect the contract for the erection of the wall, and liis wUlingness to give additional security for the performance of the work, the following clause was inserted : ** Your petitioner would, at the same time, respectfully submit that his contract is, in reality, for the building of the stone wharf-wall ; that, should the coffer-dam of the Engineer Department be a failure, the loss would fall heavy on your petitioner, without any blame being attached to him ; whereas, should he he permitted to build it after his own plan and fail, the blame, as well as the expense, would be his just due. Such, however, is his confidence in his own plan, that he would willingly risk his property, which is conside- rable, upon the result." The permission thus sought for by the plaintiff having been granted, a second agreement was entered into between Mr. liohinson and the plaintiff, dated 24th April 1850, whereby, after reciting that the Board of Or(hiance had agreed to the alterations proposed and requested by the plaintiff, it was mutually covenanted and agreed " that the said Henrif G. Ill II shall carry out the wall mentioned in the said contract to the extent of at least fifteen feet in an easterly direction into the harbor of Halifax beyond the distance or point specified in the said contract, and that he shall be at liberty to build the coffer-dam therein also mentioned according to his own plan and by such ways and means as he shall think fit, so that the water be kept down and no impediment be offered to the proper laying of the foundation of the wall." And after stating that the plaintiff was not to require payment until the whole of the work shall be completed, surveyed, and accepted by the proper officers appointed to inspect the same, this clause is added : " And further, that the said original contract and every matter and thing therein and in the said specification contained, except as herein mentioned, shall remain in full force and effect." Under this second and modified agreement the .plaintiff commenced to erect a coffer-dam according to his own principle 4 h ^ I I 4 ^ MNNU ■*-iilA^,Jiku-.^.,,,.. :MJ lUlA. r. I'HASKH. IKS of constniction, (lil'Viin^' csscntiiiUy from tliiit ilestrihcd in the plan uiul spicilication rclcncd to in flio origiiml af^iccnu'iit, inusjuiioh aa it was attempted to be constnicted with one row instead of two rows of piles. Tlie worlt, it seems, was prosecuted witli energy by tbo plaintiff for about sixteen months, wiien lie aildressed a letter to i'ohuicl Snia(j(\ then com- maiuliuf^ the Koyal Mufjineers at this jjlace, dated '22nd August, IHiOl, conveying information in referenei- to its foundaiion, from whiih it appears that he at tluit time beeame ap])reiiensive, if not fully satisfied, that the work, for want of a sustaining i)()ttom, eouM not be ])erforme(l. It is as follows : " I have the honor to inform you that I have at length succeeded in removing the whole of the water from the eotfer-dani, which is perfectly tigiit; but, upon sounding the mud below, J fiiid it of a very soft nature, insuflieient, in my opinion, to bold ])iles reouired to sustain the walls according to the contract, as immediately below the soft mud 1 find solid, shelving rock. 1 am prepared with nniterials necessary, and am ready to pro, .0(1 according to the contract in driving the ])iles ; but, under the present state of tlie mud and rock, which was not and 'ould not have been contemplated by any party when the contract was entered into, I beg to submit the circumstances for your considi ration, and to ask the favor of your instructions." (\)Uuivl Saraijv^ it seems, replieil by referring the plaintiff to the contract ; who, with the knowledge that the foundation consisted of soft mud and shelving rock below, as disclosed in this letter, ncvertlieless continued his o])erati(nis and the consenuent expenditure thereon for upwards of two months afterwards, when he finally aliandoned the work. Looking at tlie plan referred to marked A., in connection with the specification annexed to the first agreement, 1 think these documents must be regarded as indicating — and that they do and were intended to indicate ami rejiresent — the existence of a substratum suitable for a foun- dation for jiiles, because the jdan exhibits them as standing in a sustaining substance for a number of feet ; and the fourtli article of the specification requires that the piles shall be driven with a powerful, pile-driving engine, until a firm and solid foundation shall be reached : an article which, 1 take it, would not have been insert nl if any other than a solid substratum had btcn supposed to exist. According to Tliomas /laiilon'i^ testimony, v/ho prepared the specification in accordance witii it, the plan marked A. repre- sents tlie piles penetrating to a certain depth in a firm, compact substance, — as respects the coffer-dam jiiles of eight or nine feet, and the sheet piling five feet, lie afterwards says that " the plan would represent to a contractor tliat he wo\ild have nine feet in a compact substratum." Upon this point, then, there can be no doubt, as all the witnesses conversant with the subje^i have testified, that the plan imjiortsa sustaining substance capable of receiving and sustaining the piles. lint it must be recollected thaf these doiiimruts refer to the first agreement, and the site on which llll-I, r. KKASEll. .'Un the crt'ctions, uh iit fint j)roj)ust'(l, wtTo to l)c placed ; and the importHut (juestioii is, wlu-thfr they wore iilso intcMulcil to represent, and can be taken as representing, tlu! nature ot the j^round or foundation on wliich the phiintili' proposed, and under tlie modified agreement attempted, to pertbrm the work. 1 do not think tiiey will admit of that interpretation. 'Die plan was prepared from soundings taken and explorations ma^f Government, and with the attempt to mislead and practice fraui' .;- '. '.nntiff? I have read the report attentively, and can find no suv. . cv;.ionce in it. On the contrary, all the witnesses who had any thing to do with the preparation and exhibition of the plans and specifi- cations, have tcfctified that these documents indicated nothing in relation to the substratum or foundation for the coffer-dam and wall, but what they believed to be true. It would be strange, indeed, if it were other- wise ; for it can hardly be supposed that they would make any statement to induce the plaintiff to undertake a work for the Government believed to bo impracticable, knowing that if it faileil on the ground of Jts impractica- bility, it would only reflect discredit on themselves. What is the testimony on this point? In the first place, Richard Hawkins, who made the soundings on the fuith of which the plan marked A was prepared, in answer to the sixt); ciiioc' interrogatory, says ; "I think, and have no doubt, that the v '. , &> riginally planned, was capable of execution and perfectly practlc )1< " '^jain, in answer to the sixth cross-interrogatory, he says : " In the plac v-bcre a coffer-dam and sea-wall were to be made and erected according to .'Li, original design, wliich I have mentioned in my answor to the ninth direct interrogatory, 1 bolieved that there existed a compact and tenacious bottom capable of receiving and retaining piles in the construction of the coffer-dam and sea-wall which wer? desif,ned." Colonel Savage, in answer to the twenty-eighth cross-interrogatory, says : " At the time when tenders were advertized for, the specification prepared and the contrc ;; with the plaintiff" agreed upon, it was believed, and I then believe ;;■. ' 'till believe, that the nature of the bottom on which the V rks were to be c'- '.i.u was tenacious and fit to hold piles ;" and to the fifteenth direct iiittrrogatory, speaking of the opportunity afforded the plaintiff of ascertaining the nature of the ground or bottom, he says : " No (obstacle or impediment was thrown in his way, and no deception or con- cealment of any kind was practised on the plaintiff by me, or, to my knowledge or belief, by any other oflficer of the Government." Captain Du Cane, to the fifteenth direct interrogatory, says: "Whilst I was at !! J' i' if iv. r .•Ji« HILL 1. FKASKK. Halifax, no obstacle or impediment was thrown in the plaintiffs way, or deception or concealment practised on him by the officers of Government or any of them, to my knowledge or belief." Thomns Jlnnlou, in his direct examination, says : " The specification was exhibited to the party tendering. I am not aware of any deception practised upon such party. He had access to every source of information in the office, calling i»t reasonable hours." Even Charlea (ioodyear, a witness on the part of the plaintiff, — who, while he differs in opinion with the other witnesses I have named as to the existence of a sufficient bottom or foundation for the coffer-dam and wall, — entirely acquits ther~ of having in any way prac- tised deception or concealment. In answi 'c thirty-fifth direct interrogatory, he says : '* I do not believe that . a pile foundation for the sea-wall as the plan described, would have been adopted except upon the belief by the Engineer officers employed in directing and preparing the plan, that a sufficient sustaining bottom actually existed ;'" and, lastly, in hi^ answer to the nineteenth cross-interrogatory, he says : *' All possible facilities and opportunities were afforded to the plaintiff to enable him, if practicable, to build the coffer-dam upon his own plan, nor was any deception or concealment practised on him by the officers of Govern- ment, or any of them, to my knowledge.'' That the representation on the pltan, touching the foundation or substratum to which it refers, whether true or untrue in point of fact — as to the nature of which there is a great difference of opinion among the witnesses — was honestly made, there cannot, from all this testimony, be the slightest doubt ; if there were any, the plantiff's letter to Colonel Sacmje of the 22nd August, already mentioned, entirely removes it : in which — speaking of the mud as being insufficient to hold piles, and of the existence of shelving rock — he admits that such " was not and could not have been contemplated or anticipated by any party when the contract was entered into." In saying tluit rock was not contemplated by either party, I presume the plaintiff must have meant it to be understood that it was not supposed to exist without a sufficient overlaying substance for the retention of the piles, for the very first article of the specification conveys an intimation that it might be found in excavating and removing the mud or soil from within the enclosure of the original coffer-dam, preparatory to driving the foun- dation piles for the wall; it says, "And should it be found, on clearing away the mud, that the surface of the rock becomes exposed, the contrac- tor is to level all such portions of the same as may give a level surface for receiving the footing of the wall, by stepping or otherwise, as may be directed by the commanding Royal Engineer." This reference to rock shows that both parties were aware or supposed that it existed at no very great drpth below the mud and compact substratum represented by the plan, and if so, it could not be matter of much surprise that it should be HILL /•. KRASKU. an found a short distance further to the eastward, though it could not hare been expected to present itself with so shallow a retaining substance over it as the plaintiff has described in another document, to which I shall presently refer. Assuming then, that the plan and specification, contrary to tlie view I have expressed, must be taken to indicate the existence of a solid substratum for piles, as well on the site selected by the plaintiff as on tliat at first fixed upon by the Government for the erection of the coffer-tlam, and that it is not in reality there, — even then the verdict cannot in my opinion be sustained, since no deception or concealment, — no fraud, or anything in the slightest degree approaching to fraud, in the representation made — is proved to have been practised upon the plaintiff by any of the ofhccrs acting on the part of the Government. There is also another ground upon which I think the verdict — admitting the action to be maintainable — must be set aside, and that is, for excessive damages. The Jury, it seems, have allowed the plaintiff all his expendi- tures down to the very time the work was abandoned. This they were not warranted in doing, as it is clear, from the plaintiff's own showing, that he ought to have discontinued his operations some time before he did. He ought to have stopped the work when he discovered it to be impracticable, for everything cxpcn led after that time was a useless and improper expenditure, with which the Government ought not, under any circumstances, to be made chargeable. At what time the work was at first discovered to be incapable of execution, does not very distinctly appear ; but it seems that some of the workmen employed in driving the piles were under a strong impression, from the resistance met with, that they had struck rock, some time before the plaintiff himself intimated that it was there. The plaintiff"s memorial to the lioard of Ordnance, dated 10th January, 1851, praying for an extension of time to complete the work, shows that he had, even at that time, discovered the existence of rock : for it is there stated that, " in going out the extra fifteen feet he had come in contact with a bed of rock having about eighteen inches of yellow clay upon it." He may, however, have believed, and probably did at that time belie\e, that the bed of rock of which he speaks, did not present any insuperable difliculty ; but, in his letter to Colonel Savage of the 22nd of August, he expresses a decided opinion from which no other conclusion can be drawn than that all further exertions to complete the work must be in vain. At that time, at all events, if not long before, he ought to have abandoned it ; but it seems he continued to prosecute the work until the 25th of October, at an expense of £90 per week, which the Jury have allowed him together with other charges, for which there does not appear to have been any sufficient proof. I am of opinion, therefore, that the verdict ought to be set aside, and a new trial granted upon the first and fourth ground of exception, and that the rule must, for this purpose, be made absolute. mu f h It 818 HILL .. FRASER. w lb I! WiLKiNS, J. Having conducted the trial of this cause, and the views which I stated to the Jury having been, so far as it became necessary for the Court to reviev them, approved by the learned Chief-Justice and my brethren, it is unnecessary for me on the present occasion to add much more than the expression of my concurrence in their decisions. No objections were raised at the pleadings nor urged at the trial, which assailed the foundation of the plaintiff's action ; but I then thought — and subsequent research hus convinced me that I thought correctly — that, as the case rested entirely on misrepresentation without moral fraud concurr- ing with it, the action could not, in any view of it, be sustained. It was, indeed, obvious from the positions as well as from the objects of the party contracting for the Government, that no motive for deception on their part existed, and that if the contract, which they had thrown open to com- petition in the accustomed manner, eventually failed to be accomplished by him who became tlie other contracting party because physical impossi- bilities existed to prevent its performance, the public interests, of which they were the guardians, would suffer ; whilst they, so far from deriving any personal benefit, could not but be prejudiced in their official repu- tation by a result so disastrous proceeding from such a cause. Assuming ti at the officers of the Roj'al p]ngineer Department had not conducted proper enquiries and thereby ascertained the existence of these physical conditions which were essential for the performance of the work proposed, and which the plans and specificatir .s unquestionably repre- sented, the plaintiff, even under the original contract, would not have been in a poition to maintain an action for damages sustained by him in con- sequence of his contracting on the faith of such representations, unless the lavv would infer from them a warranty that they were true. I did not think at the trial — and I am not, after hearing the arguments and consulting the authorities, convinced now — that, under all the circum- stances of this case, tlie mere fact of such representations being made, though they related to the essentials of the contract, constituted a warranty in law of the existence of the conditions. I doubt whether they imported anything more than the expression of an opinion that the state of facts was in accordance with the representations. Two reflections dispose my mind to this impression : first. That if this plaintiff, before he contracted, had instituted those comparatively inexpensive investigations which he subsequently made, and on the results of which he mainly rested proof of his allegation ' that the required substratum was not in the area of his operations,' he could not have been misled ; and secondly. If, before binding himself to performance, he had desired to be informed by the Engineer authorities whether they merely represented what they believed or intended to warrant, he would either have obtained an express warranty or woiild have Batisfied himself by explorations, before incurrinj; any HILL V. FRASER. 819 liability. I am inclined to think that in such a case a^ this, where a prudent man would thus guard himself, and where he might easily obtain adequate protection, it would be dangerous as well as unnecessary, for the law to imply a warranty. This, however, in the view we all take of the case under consideration, is a speculative question which it is unnecessary for us to decide. Our attention at the protracted but very able argument addressed to us, was directed to many points involved in the issues, all — considered in themselves — of much importance, but dwindling into insignificance when viewed in comparison with the prominent ground of defence which the ninth plea disclosed, and which was to the effect " that the plaintiff was not induced *o contract, as he eventually contracted, by any represen- tations." The Jury were instructed that on this plea and those corresponding with it, their verdict should be for the defendants. The Judge, as was his duty, at the same time submitted to them all the independent issues that the pleadings raised, and instructed them as to the principles by which they should be governed in estimating compensation, on the assumption tliat the plaintiff was entitled to recover ««?/. They were told distinctly that in forming that estimate they were limited to damages proved to have been actually incurred by the plaintiff up to that point of time when reasonable conviction was brouglit home to his mind that performance of his contract was, from the existence of natural obstacles, imiiossible : and at that point he was bound to stop his operations without subjecting the other contracting party to liability. They, however, regardless of these instructions, awarded to the plaiutifT the full amount of his claim, extend- ing over a period of his work long subsequent to the proved impossibility of its accomplishment, even according to the testimony of himself and of his own witnesses ; wliilst tlic evidence of his account did not afford dates, items, or other details by means of which the damages so actually sustained by him and so limited, could be measured and ascertained. Thai finding alone, would therefore necessitate our making this rule nisi absolute. Another class of issues involving a question of the existence or non- existence of a suflicient foundation for the structure to be erected, were left to the Jury, arid were so entirely within their peculiar province that, though adverting comparatively to the means adopted for investigation, — to the time and care employed in the sounaings, borings, pile-drivings and other tests resorted to, — to the instruments used by the parties, — to the modes of using them, — to the field explored, and to the actual results exhibited at the trial — the weight of evidence on these issues would seem to preponderate in favor of the defendants : yet the Jury, having 5 Lit! ^ S20 HILL V. FKASER. come to a different conclusion, the verdict would probably not be disturbed if the finding in these respects were the only ground of objection to it. But a subject of our inquiry yet remains which absorbs all others, and is decisive against the plaintiff, because the matter of legal defence wliich it sets up, and of which we concur in acknowledging the Talidity, subverts the very ground on which the action rests. On this point of the case I stated, in a somewhat elaborate manner, my impressions as they existed at the time of the trial ; and as they remain not merely unchanged, but con- firmed by reconsideration and research, I will conclude by repeating the substance of them here. The defence thus set up by the defendants, and whicli struck at the very root of the action, was, in substance, " that the plaintiff was not induced to enter into the final contract by anj representations made to him by the Government authorities." The alleged representations on which the plaintiff relies in reference to damages sustained by him under the last or substituted contract, fjre representations which the plans and specifi- cations imply, and which, he says, were carried into that contract. Now all the representations imported into the final contract were made in con- nexion with the Engineer coffer-dam, and on the alone condition that it was to be used as a means to the accomplishment of the sea wharf- wall. Entirely new conditions were, at the plaintiff's instance, introduced into the new contract, and some of them utterly inconsistent with his claim of compensation for damages incurred by him under the circumstances distinguishing the contract into which he finally entered. The represen- tations connected with the original contract were not transferred to the second, otherwise than as so qualified, and being so qualified they did not mislead the plaintiff, nor occasion to him any damage. The Government had reason to suppose that he, in the interval between the first contract and the execution of the second, had informed himself of the existence of all conditions necessary for the erection and stability of his own coffer-dam. Tlie duty of the officers of the Royal Engineer Department forbade their cyT)erimentalizing or subjecting the Government to liability from the experiments of others. When the plaintiff's own propositions were embodied in the final contract, the officers of the Government must, under the evidence, be nnderstood as in effect announcing to him that they would not allow any consequences that might result or bo assumed to result, directly or indi- rectly, from his experiment of a coffer-dam constructed on his own undis- closed plan. The representations had reference to a site different from that on which the plaintiff's structure was attempted to be erected. The plaintiff, in short, not having actually tested the sufficiency of the Government coffer-dam, but liaving left its practicability in the locality a speculative McKENZIE V. McKAY. 821 question, and a question respecting which a difference of opinion existed among the witnesses ; having, at his own request, been permitted to resort to his own project ; having taken upon himself a risk that he invited, without qualifying or limiting it in any manner ; having consented to abide by his own experiment, and that to be made on a site respecting the condition of which no representation was made to him before, or at the time of the execution of the contract — precluded himself from recourse upon the Government for compensation for damages sustained by him in an honest and earnest, though unsuccessful attempt to accomplish his own coffer-dam and the wharf-wall, which he contracted to build. I think, therefore, that the ground of his action entirely failed, and that the rule nisi for setting aside the verdict in his favor, must be made absolute. McKENZIE V. McKAY. When by a section in a statute.it is provideil that, in case of disagreement between certain parties, such disagreement shall be settled by arbitration ; held that no action will lie for matters which ought, under the act, bo referred to arbitration. This was an action of trespass for cutting down trees on the plaintiff's land. To this the defendant pleaded, first, — That as the agent of the Electric Telegraph Company, and under the authority given him by sec. 1 4 of the Prov. Act of 1851, for incorporating the Nova Scotia Electric Tele- graph Company, he had entered plaintiff's land and cut down twelve trees for the necessary repair of the telegraph line, and that he had offered twenty shillings as compensation therefore. Secondly, — That he and the plaintiff having disagreed as to the value of the trees, he had offered to leave the matter to arbitration under section 15 of the same act, and the plaintiff refused to do so. To these pleas there was a new assign- ment for trespass, in excess of the alleged rights, and on other parts of the land and on other occasions, and for other purposes than those stated in the pleas. The defendant pleaded to the new assignment, alleging that the trespasses were committed under the authority of the said act, and denying that they were in excess of the rights granted thereunder, or com- mitted on other portions of the land, or on other occasions ; and secondly, — That he and plaintiff had disagreed as to the amount of damage sus- tained by the trespasses new assigned, and defendant thereupon offered to, leave the same to arbitration, but the plaintiff refused. There was a verdict for the plaintiff, and a rule was obtained for a judg- ment for the defendant, non obstante veredicto. J. R. Smith. There was only one act of trespass attempted to be proved at the trial, and that the plaintiff abandoned when he new assigned. The new assignment only allowed him to give in evidence excess, and that r i ;J22 McKENZIE V. McKAV. he did not show. The statute makes it rompulsory on the parties to arbitrate. There is a great distinelion between a provision in an act com- pelling parties to arbitrate, and a clause in a contract in wliich the parties agree to settle all dilferences by arbitration. And the act ui' l8ol, section 14, incorporating tlio Company, makes such a submission to arbitration compulsory. 8 Bing., 31)0. 2 C. and P., ooO. 10 Kng. Rep., 322 ; 30 ib. 250 ; 31 ib. 588 ; 36 ib. 1 ; 38 ib. 99. Attornc)/-Gcneral. The defendant only justified under his first pleas for twelve trees, and there were more than thirty proved to have been cut. The plea to the new assignment is bad, for there is no ofter of compen- sation as required by the act. The defendant had no right to enter under the law, without making an offer of compensation. The fifteenth section, while it states that where there shall be a disagreement the parties arc to arbitrate, makes no provision for the appointment of arbitrators. If the defendant here refused to arbitrate, or rendered his ofier nugatory by appointing an improper person, is the plaintiff not to have his action r ('. A. V. Bliss, J. This was an action of trespass for entering on the land of the plaintiff, and cutting down the trees thereon. The defendant justifies as the servant of the Electric Telegraph Company, under the Provincial Act of 1851, section 14, for entering the land and cutting down twelve small trees for the necessary repair of the line, for which he oflered and tendered plaintiff full compensation — to wit, twenty shillings ; and secondly, he pleads, under the 15th section of the said Act, that he '.md the plaintiff disagreeing as to the value of the said trees, he offered to leave the said disagreement to arbitration, which the plaintiff refused to do. The plaintiff new assigned for trespass committed by defendant in excess of the alleged rights, and in other parts of the land, and on other occasions, and for other purposes than those referred to in the pleas. To this the defendant again pleaded, first, that the new assigned trespasses were committed under the authority of the said Act, and not in excess of the right therein granted, and negativing the new assignment ; and secondly, that he and the plaintiif disagreed as to the amount of damage sustained in respect of the trespasses new assigned, which the defendant offered to settle by arbitration, as in the said Act directed, but that the plaintiff refused to arbitrate the same. At the trial, which took place before me at Pictou, it appeared that more than twelve trees had been cut down by the defendant ; that it was done by him, in the necessary repairs of the line of the telegraph, on behalf of the company ; that the defendant had offered twenty shillings to the plaintiff in payment for this, wliich he had refused ; and that the McKENZIE V. McKAY. 323 dcfeiiilatit ha.l then olfcrcd to submit it to arbitration, cacli party to choose an arbitrator, but this also was refused ])y the pluiutill'. The plaintiir obtained a "a. diet for twenty sliillin<;s. At the trial, the defendant's counsel took the same objections which lie has raised by his pleas — that the statute made it compulsory to settle the matter by arbitration. Without expressing any opinion upon it, I reserved the point. The case now comes before us on a rvdc »/.s/ obtained by the defendant to enter judgment for him, )wn ohstnnfc veicilicto. I do not think we are now called upon to consider how far these picas to the new assignment could be sustained, if the case had come before us upon a demurrer taken. As thej» stand, tliey bring before us sufliciently, as it appears to me, the question which has been raised and argued u])on — the construction and effect of the statute to which the pleadings refer. By the 14th section of this Act, full authority is given to this telegraph company to enter into any lands, and set off such parts of it as may be deemed necessary for the lines of telegraph, and to take any posts or building materials necessary to make or repair the lines, making the owner due compensation therefor; and by the loth section, in case of disagreement between the company and the owner as to the value of any land, posts or building materials which the company may have taken for the purposes aforesaid, such disagreement shall be settled by arbitration. This language is certainly very strong, and seems to me altogether imperative. If we should construe the Act as permissive only, it would take away its whole force and effect, and reduce the clause to a dead letter, as was said by Tindall, C. J., in Crisp v. Jhinhiiri/, 8 ]5ing. 394 ; for, as he adds, it would be competent for both parties to refi;r the dispute to arbitration without the intervention of the statute. It was therefoi" held in that case, where a statute had used similar words, that they Avere obligatory, and the plaintiff was barred from maintaining an action at law. And this case has also received the confirmation of the Court of Q. E., in the King v. Mildcnhall Savings' Bank, G A. &c E. 952. The case ex parte Paijnc, 5 D. & L. 084, before Erin, J,, is also an authority to the same effect. It is very true that in the case of Crisp v. Jiunhury, the statute was more full than ours. It directed that the arbitrators should be chosen one by each of the parties, and in case of their not agreeing, they should nominate an umpire. But though our Act does not state how the arbitration is to be carried out, I think we are bound to give full effect to it if it be possible ; and that may be by construing it that the arbitration shall be conducted according to the ordinary and usual mode, which is by each party appointing one, the two choosing an umpire. A greater difficulty, I own, seems to be to ascertain how^ the ^1 324 McKENZlE I'. McKAY. iW appointment of an arbitnitor is to be enforced if cither party should refuse to name one ; and this difficulty would equally exist under the Mnglish statute upon ■which Crisp v. liituhnri/ was decided. Tliis mi;;ht not, per- haps, create any practical difficulty, however ; for to an action brought in a case where the statute had prescribed that the matter should be settled by arbitration, it would be necessary, I think, for the defendant to come and show that he was always ready and willing so to settle it ; and this might be controverted on the other side, — for he could scarcely claim the benefit of the statute who had prevented the other party from availing himself of it. And, on the other hand, I think the plaintiff cannot suc- cessfully urge to us the difficulties which may lie in the way of carrying out the statute, when he is the only one who, as in this case, has created the difficulty. The object and intention of the Legislature seem very clear. In order to erect lines of telegraph throughout the Province and keep tliem in repair, it would be necessary to enter upon the lands of the several persons which lie along the whole length of the lines ; and if disputes arose, as they might do, M-ith many, a multiplicity of actions would be the result, though they were, as in this case, trivial in their nature, and involving small and inconsiderable amounts of damage. To prevent what would, in such cases, produce serious expense and costs to a company upon which the Legislature appears to have looked — and well might — with some degree of favor and regard, it has taken away the burthensome and costly mode of settling such disputes by the usual actions at law, and substituted the easy, speedy, and less expensive but not less fair tribunal of an arbitration, to settle the just compensation for those things which the statute has permitted the company to do. If there should be found any substantial difficulties in carrying out this provision of the statute, it will be time enough to yield to them when they arise. But in the present case they do not meet us. The defendant has done all in his power to give it effect. The refusal to act under it comes from the plaintiff : and in such a case, at least, I think that, under the authority of the cases which I have mentioned, he cannot maintain this action. I do not, however, see how we can make the present rule absolute, to enter up judgment for the defendant, jwn ohatante veredicto. Admitting that such a verdict can in any case be entered up for a defendant as well as for a plaintiff — and I am not sure that on a proper occasion it may not be, though I have not met with any instance of the kind — still it appears to me that it can only be done under a very different state of pleadings from the present. It must be apparent on the face of the plead- ings themselves that such judgment is the only one that can be given, and that it is not therefore inconsistent with the verdict. Let us take a familiar instance to illustrate this. To an action of trespass the defendant McKENZlE V. McKAY. 325 ploads an immatcrinl justification, upon wliicli issue is joined and found for the defciiiiant. Tliorc, notwitliHtamlinf^ the verdict, the plaintiff will be allowed to enter up judi^ment ; for the trcHpasscs being confcHScd, and not avoided sufficiently — tliat is, not at all — it is clear, upon the record itself, that he ia entitled to the judj^ment, and the verdict upon an immaterial matter cannot alter tl»e case. Now, supposing that a like rule prevails with respect to a defendant, it obviously can be only when he has pleaded a sufficient and perfect answer to the action, to which th« plaintiff has put in an immaterial replication, which leaves that defence wholly untouched, and in no wise afiected by the issue which may have been found for the plaintiff upon such replication. Hut that is not the case here. Tlic defendant, it is true, has, as I think, set up a good and perfect defence to the action. He says that he was acting on behalf of the telegraph company, and that under the authority of the act in ques- tion he entered upon the plaintiff's land and committed the supposed trespasses, and that therefore the plaintiff is precluded by the act from maintaining an action at law in respect of them. Now, if, leaving that plea ur'^ ercd, the plaintiff had replied by an immaterial fact, which, not tn ^ the matters of the plea, would admit them, it would be apparent on the record, though a verdict had been found on tliat issue, that the judgment should be for the defendant, — and the Court might perhaps direct it to be so entered. But in this case, and under our Prac- tice Act, there is no replication, and then the plaintiff is held to have joined issue only on the pleas ; that is, he denies that the trespasses were committed, as the plaintiff has asserted, under the authority of the Act ; so that if this had been expanded on the record by a formal replication, it would have tendered not an immaterial, but a substantial and sufficient answer to the pleas ; and upon this finding for the plaintiff, the judgment could not be entered up for the defendant, for it would be repugnant to it, and the whole record would then be inconsistent. And so it would be, as the state of the pleadings must now be viewed, — for the Practice Act makes the issue the same as if this replication had been put in. I think, therefore, that we are not at liberty to enter up judgment for the defen- dant without regard to the verdict. But that verdict upon this evidence is clearly wrong. The defendant fully established the case set up by his pleas, and as these constituted a sufficient bar to the action, the verdict should have been found for him. All that we can do, as it appears to me, is to give the defendant a rule for a new trial, which, as far as amounts to putting an end to the present action, will have much the same effect, I should suppose, after the opinion which has been expressed upon the intention and force of this statute, unless, indeed, the parties should wish take the opinion of the rest of the Court, who, not having heard the ,; / ~ii 32G McKENZI] V. McKAY. firgiimoiit, do not of course take any part in the jiulgnicnt which is now given. DksHaiiuf.s, J. I think tlie verdict in this case ought to liavc hecn for the dcfcndiint, and tliat a new trial must he grarted. It appears, from the report of the learned Judge who tried this cause, that the defen- dant, as the servant of the electric telegraph company, entered upon the lands of the plaintiff, and out some small fir trees recpiired to repair the telegraph line near the head of I'i^ton harbor, for which he at t]\e time offered to p;iy him twenty shillings, considering that to be a full compcr- sation. Tlic plaintiff refused to accept it, and the defendant then pro- posed to submit the matter to arbitration, which the plaintiff also declined to do. We have now to decide whether it was optional with the plaintiff or obligatory upon him, under the Trovinciul Act of ISol, entitled, "An Act to incorporate the Nova Scotia Klcctric Telegraph Company," to refer to arbitration the disagreement bct'.vren the defendant and himself, rela- tive to tlie eompensation to be made for the trespasses complained of. I am of opinion that the Act is imperative. The fifteenth section says " that in case of disagreement between the company and the owner as to the value of any lands, posts or building materials whica the company may have taken for the purposes aforesaid, (that is, foi' making or repair- ing the lines,") sticJi Jisdurcenient ahall he scUlcd hy arhitrntion.'''' Ilie language here employed, I think, very cicavly shews that the object and intention of the Legislature was to take from tiio owner the remedy by action at law, and to sub.stitute arbitration in its place. In the case of i'rh}) V. Ihnihnrij, to v.-bich my brother IHiss has referred, Tiiidall, G. ./.. says : " Where the object and intent of tlie statute manifestly requires it. words that appear to be peiinis^ivc only shall be construed as ohJujatory, and shall have the effect of ousting the Courts of their jurisdiction." The object of the Legislature, in cases like the present, evidently being to protect the electric telegraph company against the serious conse((\iences of law suits, to wliich they would otherwise have been subjected, for acts absolutely essential io the accompliyhment of the work, it would seem, from tliis authority, to bo the duty of the Court, if the words of the Act were jiriiiiisaii-e only, to constuie them as obllgntory, if it were necessary to do 60, to give effect to and carry out tlie true intent of the Legislature. Hut we are not called upon, in this case, to give my straine to mercy because there was no evidence of malice aforethought. They intended to bring this within that class of cases in which a murder has been committed by an act which would probably lead to the death of another without expressly intending to commit the crime, as by throwing down bricks from the top of a house on to a crowded street. After find- ing the verdict of murder the jury have nothing l(..' do with the judgment which is to be awarded on that verdict. That is fcr the court and not the jury. They have chosen to give a recommendation to mercy, and in that recommendation, and as a reason for the executive granting it, they have placed the words by which the prisoner's counsel contend that the crime is diminished to less than murder. As those words form no part of the verdict, but are dehors it, and are solely for the purpose of influencing the executive, this court has nothing to do except to pass the usual judgment. If the court do not come to that conclusion, but are of opinion that the words used form part of the verdict and qualify the term murder, then this is strictly a case of manslaughter. Hal. P. 6, 302 ; Chitt. Cr. Law 645 ; 5 Burr. 2661, 2793 ; Kel. 51. J. W. Ritchie. No judgment can be entered on this verdict, and the prisoner must therefore be discharged. Arch. C. P. 146. When the jury find a verdict of murder without premeditation and malice they strike out that which is essential to constitute the crime. Their verdict then in fact is simply that they find the prisoner guilty of the offence of killing. It is just as perfect a verdict of excusable homicide as of manslaughter. 2 Ld. Ray. 1581. There cannot be a judgment because of the uncertainty of the verdict. C. A. V. If; »t Bliss, J. The prisoner was indicted and tried for murder. The jury returned the following verdict : " Guilty of murder with a recommenda- tion to mercy as there is no evidence to shew malice aforethought or pre- meditation." This was in writing and signed by the jury. Taking it altogether this must be looked upon as a verdict so inconsis- tent and repugnant, or so ambiguous and uncertain, that no judgment we think can be safely pronoimced upon it. When this is the case in civil causes, or in criminal cases not capital, there appears to be no doubt that a venire de novo may be awarded, and that is the proper course to be adopted. But it is a question of some difficulty and doubt whether this can be done in a capital case. In Bex v. Keits, 1 Ld. Kaym, 141, where the prisoner was indicted for murder. Lord Holt is reported to have said, " that if the verdict is imperfect, no judgment can be given, but a venire de novo ought to issue." He thought, however, the verdict was there certain enough, — but he afterwards took several objections to the THE QUEEN v. HONORIA HEALEY. a83 They indictment, and the counsel for the crown not opposing it, the indict- ment was thereupon quashed, and the prisoner was again tried upon another indictment and convicted of manslaughter. This case is thus referred to in Rex v. Uiggins, 2 Lord Kaym, 1585 : " As to granting a venire facias de novo after a special verdict found, they (the counsel) were so candid as to own, that though there was search made, with the greatest diligence, yet they could not find one instance, or so much as an opinion of a Judge, except what was said by Lord Holt in the case of the King v, Keite, Comberb. 408, * I should not be much against a vt,:ire de novo,' " which qualifies very considerably the language attributed to him in the report of the case 1 Lord Kaym, 16l. Whether a venire de novo could not issue after a special verdict in a capital case was not decided ir. Eex V. Higgins, it being unnecessary to determine that question. Bv.t the case of the King v. Keite is again noticed by Lord Hardwicke, then Lord Chief Justice of the King's Bench, in dolivering the judgment of the court on the case of Eex v. Burridge, 3 P. Wm. 498, " Keite was indict- ed for murder, and a special verdict found, which being moved into this court, the question was, whether the fact amounted to murder or only manslaughter. After two arguments the court thought the special verdict was so uncertain and imperfect, that no judgment could be given upon it; and a doubt seems to have arisen, whether a venire facias de novo could be awarded in a capital case. To avoid this question my Lord Chief Justice Holt himself, on the last day of the term, took several ex- ceptions to the indictment, for which a rule was made that it should be quashed." Now from all these different statements of that case we may see that the doubts entertained as to a new venire in such a case must have been pretty strong, at all events they were such as preventc- 1 that step from being taken, — while it appears that no case was to be found in which it had ever been awarded before in a capital case where a verdict had been given, but so uncertain, that no judgment could be pronounced upon it. And the reason I take to be, though none is mentioned as the ground of this doubt, that in such a case the prisoner would be clearly put a second time in jeopardy of his life, though where the indictment itself was so bad that no judgment could be given upon it the prisoner might be indicted and tried again, for he never was in jeopardy under the first. Arundel, C. 6, Co. 14. And there is a consideration arising out of the case now before us which in my mind very much strengthens this view. It is impossible to say that the jury did not mean to find the prisoner here guilty of manslaughter only — for they find him guilty of murder, but say that there was no evidence of malice aforethought. Now they may have meant to recommend him to mercy because no express 334 THE QUEEN v. HONORIA HEALEY. malice was proved, and then the verdict which they had given of gui'ty of murder would stand unclianged ; but if they meant what the words tliem- selves do import, that there was no evidence of any malice aforethought whatever, then taking the whole verdict together it may fairly mean a felonious killing without malice aforethought — and that is, in legal lan- guage, manslaughter. Now supposing the jury to have meant this, as may be well supposed, and a venire tie novo awarded, and upon a second trial that he should be convicted of murder, — could sentence of death be carried into execution in face of a doubt which might well be entertained, whether a former jury had not already found it not murder but man- slaughter only ? And the difficulty would be still greater if a verdict was so ambiguous that it was doubtful whether the jury meant to commit or acquit altogether ; or still more, if the doubt was whether they meant to convict of manslaughter only or to acquit altogether, and being tried again the prisoner should be convicted of murder. When there is no uncer- tainty in the verdict, and the venire de novo is awarded on account of the indictment itself being insufficient, this particular difficidty whicli I have pointed out would not arise ; but in the King v. Keitc, which I have mentioned, where Lord Holt resorted to the step of quashing the indict- ment to get rid of the question whether a venire de novo could be awarded after a verdict so ambiguous that no judgment could be awarded on it, this same difficulty would most certainly occur ; and on that case Mr. Keite Avas in fact tried again, under another indictment however, and was convicted of manslaughter ; " but," the reporter adds, (1 Lord Ray 148,) " that he had his clergy, and died of the small pox in Wiltshire, his own country," so that it is probable he was discharged without anything more than a nominal sentence ; and thus, practically, no serious results fol- lowed from the two verdicts. Upon this view of the case then, under all the circumstances, and bear- ing in mind the long imprisonment which the prisoner has already under- gone of more than a twelvemonth, I think, and I believe the whole bench are fully of the same opinion, that the most fitting course to be taken will be to recommend her to t'le government for an unconditional pardon. And that will be accordingly done. Desbarres, J. I concur in the opinion just delivered that the verdict is so ambiguous and uncertain that no judgment can safely be pronounced upon it. It is capable of two interpretations. It may have been meant to be a verdict for murder or manslaughter ; but as it is impossible to say whether the jury meant to find the prisoner guilty of the higher or lesser offence, and it is very doubtful whether a venire de novo can in a case \ ( AMl'UKLL r. IIKNDERSON. 33.> like this be awarded, a recommendation of the prisoner to the crowu for an unconditional pudon seems to be the best course under all the cir- cumstances that wc can adopt. Wii.Kixs, J. 1 entertain the same opinion. This is not a special verdict but a general one, so ambiguous and uncertain that it is quite im- possible the court can give any judgment upon it. My first impression was that it was a verdict of murder, and that the latter part was merely a recommendation to mercy. But in a ease of this kind we are bound to make such a construction as will be In J' A. is nevertheless entitled to recover the amount back from B. Tiirs was a sunimary suit for money had and received. Judgment for defendant, and rule to set aside that judgment. There was an agreement between plaintiflT and defendant for the pur- ihase and sale of a lot of land. The plaintift' paid £11 as part purchase. Su\)sequcntly the defendant, at the request of the plaintiff, agreed to re- scind the bargain, and nothing was then said relative to the money paiil hy the plaintifi' to the defendant. Tv-'mimj in support of rule. There b hel'C a failure of consideration, uud plaintifi" is entitled to recover back the amount paid by him. ('h^^y on Contracts, C'iS ; * Kast. 2«4 5 I T. H. 1;)3. The plaintiff C(x^\^ ^qI compel defendant to complete his agreement ; it was for a m^. pf tands, and there was no agreement in writing between the parties^. MrCnlhj. There is a difference between those c{49 ; I .Sim. vS( Stu. 14? I Sugd. V. ^ P. 49-16.»!^ fell • i "i 836 CAMPBELL I. HENDERSON. t il Ht-I8s, J, The plaintitt' in this case entered into an agreement for the purchase of defendant's hind. The part payment was intended to take the case out of the Statute of Frauds. It was agreed that tlxc bargain should be annulled. I conceive that when the bargain was so annulk-d the parties were remitted to their original condition. 1 think it would lie most unfair to allow him to keep the money. Dksbarrks, J. I cannot divest myself of the idea that it was the in- tention of the parties that the plaintiff should be released from the whole of his contract. Wir.Kixs, J. This case is of some importance in principle, thou[vli the amount involved in it is small. I took a strong impression in favor of the defendant, at the trial, and, though my brethren have expressed an opposite view of the merits of the cause, my own opinion has undergom- no change. I cannot concur witlj them in regarding this as like the ordi'- nary case of a contract for sale of real estate rescinded from default, or unwillingness of the vendor to perform his engagement, or for mutual convenience of the parties, and an action brought to recover tlie money deposited in the usual manner at the sale. Here, the contract, wliicli never could have been enforced in respect to the statute, but which was regarded by the parties as mutually binding under the circumstances, was not, in my apprehension, according to the intent of the parties rcscintlrd iu toto and ah initio, nor otherwise than prospectively, and suh mode, vi/ : when the defendant, at the plaintiff's instance, engaged "to release him from his bargain," he meant only that he would not hold the plaintiff to his then existing obligation to take the land, and pay what remained un- paid of the purchase money. The facts were these : — After defendant had agreed to sell the land in question, the parties, aware that a written agreement was necessary, arranged, in order to supersede the necessity for it, that £11 should be paid, and it was paid by plaintiff to defendant. ity way of earnest, as I understand the arrangement, and as it was regard- ed at the trial. At a subsequent time, plaintiff requests defendant to release him from his bargain, because his family did not like the situation of the place, and defendant consents to comply with his request, stating that he should not like to insist on the performance of it as it was disa- greeable to the plaintiff's family, adding that he was willing to do any thing that was fair and reasonable ; no express stipulation however iti n\ade, nor is any thing said, about the money so paid in advance. Under these circumstances I could not at the trial, nor can I now, discern tltt equity which binds the conscience of the defendant to refund it. On the contrary, I think we ought to infer that plaintiff had impliedly waived his claim to it, in consideration of the generous act of defendant done at his request. CASES arguf:d and dktkrmlned IN TIIK SUPREME COURT OK TIIK PUOYIN( K OF NOVA SCOTIA. TRINITY TERM, 1858. HENRY McNEIL. In (^icctmeiit wlicre the title to the froeliolfl is involved the jicisonal lepresentutivc «t the deceased plaintift is not entitled to revive the action. This was un action of ejectment broii<;l>t by Jane McDougal against tlie defendant for withholding the possession of a certain lot of land and \'ux £100 damages. The plaintiff having died pending the suit it was re- vived by M'. .-1. llcnry as her administrator. There was a verdict for the dcfcn lant and a rule to set aside that verdict. J. W. Ritchie. The administrator was the proper party to revive this suit. Our act allows damages to be claimed, and the writ in this case does claim damages. The heir is not entitled to receive the damages, they go to the personal representative, and he is the legal representative intended by section 138 of the Pi-actice Act. The action of ejectment is for evicting from a term, and the legal representative of a termor is the ))ersonal representative. This is a stronger case than that where plain- tiff's title expires before trial and yet in that case he would be entitled to ii judgment. Prac. Act, sec. 131. Hat-liburtox, (\ J. In this case the evidence shews that the real matter in dispute was the title to the freeliold and not the damages, and tlie administrator therefore is not the party by whom the suit ought to iiave been revived. Bliss, J. Damages were only claimed as an adjunct to the title of the land. No person who cannot recover the land is entitled to revive the I'^Wi' :\:\H Kl.MOTT .. SMITH. jkct'um. 'llu' law niranf that wlioiu-vcr there \viis a person who was «>ii- lith'il to hiiufj; a new aetion he slionhl not he eompeUed to j^o to that fxpenso hut nhoiihl have tlie power of reMvinn the old one. Doni" ami hi snviiuis, ./., innnnreil. AVii.KiNs, ./. The term lej,'al representatives mn>t he taken irrnniliini siihitctaiit vintrriiiiii. It is used in our statute of distrihiitions in tlie n\eaninjj of heirs. If t!iis aetion iiad heen ejeefment for a tiTn\ of years then it wduM havt> nu'aiit the persoiuil representatives, hut it heinj» clear from the ovidetu-e that it is the title to the freehold that is in dispute i; must juean the pt rsoi\ hasiii^ the title. IN TUK INSTATE 01' TllK HON. MICIIAKL TOBIN. NVlioii soau' ot" (iCMM'iil eii-dxcoutors Mpiily to Itc loK'Usod iVoia tlio (nist tliP I'oiu't will rotiiiiro otlior oii-c\cv'\ilor.-' to Iti" l>ro sulistilatisl. ./. ir. ,/iiliiisli>ii, Jr., nutves oi\ pefiti»)n of luhtrni Tohin ai\d IliU). 11 . l'»)»H(/ that they sliould he discharged from tlie trust, and that it mioht he referred to a master to report suitahle trustees to he appointed in their ]>lace. i Hi iss, ,/. TiuT(> appears (o l)e a eo-executov. .I/'-. Thnmna .V. Tdl'ln, lie ovight to he hrought hefore the court. :i '•■i KLUOTT /'. SMITH, KT. AL. t'do totiafil in cotniaoK v-.iiuiot !«u,>li,\i^vti(r had heen for sotne years in possessioti of the lorut — hut the par- ti,cs duauj>lj whom the defendants ehiitn were entitled to two-thirds of tl\c l*«,«»pcrly whej-e tlie ta'cspass was alleijeil to have heen eominitted. I'litil 4 ho ifi^ii neilhei' party .seemed to he aware that the other had any title to vilic laaid. 'I'ho }>lain4itf claimed hy purchase from the younjjer child of .the,a»igiiuiJ oviUT? ;n*'l ^he deXendants through the elder son, who, after a •long iiUfseaee liom di,t JVtxviiue, ismldenly returned. The defendants, ap- purexiriy not aware that ;s by |)uttii)g on tlu' roconl u plcii flmt ilc'I'i'iidantH wcro co-tniimtH with flii' plaintiir. Tliis application was rt'l'iisccl by the Judge, an1 ; .■> T. 'JO. 'J he Judge at the trial ouglit to have perinilfed tlu" tlet'eiidaiil to jnit on the record a plea ])utting tlie real f'act.s in issue. ./. ir. lillihu ttiiil Alc.innili r Jnun)'. There was in this case evidence sutReient to justify a jury in finding an actual ouster, and in such eascK Irespasn will lie, 7 ('. H. 'Ill : Cowp. 217 ; 11 Kast. IS) ; 10 Mass. 2S;l ; .-. Hur. '2M)H ; li iM. a' S. ;UI ; Ti ili. .'.O I ; Hull. N. V. .'M ; 2 Scott. lOO; 12 Ad. »,V Ml. 02 I The very application for leave to put in the plea of co- tenants characterises the acts of the defendant, (iiat he intended to take txclusive possession of the land. His expressions at the time when he nllered the defViidants the hay if they would drive plaintiff off, shew con- clusively his intentions in the inattctr. Atldriiii/ (n Hcrtd. The law is well settled that t^'iiants in common tin not hold any spec iiied portion, but have an undivided interest in the whole. Mach is entitled to tuissession of the whole, and cannot enjoy his omii without having possession ol' the entirvfy. Trespass therefore cannot lie- [ Jtl.iss, ,/. If a tenant in ebmmon enters into a house with the detenni- nation of ousting his co-tenant, it will l)e an ouster, and if the other could not bring an action the former would beconu" sole owner after the lapse of twenty years.] A co-tenant has a perfect right to take possession of (lie whole house, and no determination exiiresscd bv him can have anv ctlect ; the only way he eun oust his co-tenant is by actually preventing him from entering and occupying it. To make an ouster there must have been a putting out of one co-tenant by the other. [ Wii.kins, ./. One < <»-tenant cannot take any jiortion of that which is held in common and dispose of it; if ho does so an action will lie — Farrel r. lierwick 1 M. & \V. ; 21 Pick. 502. ] A party going into exclusive possession is not of itself an ouster. S. L. Morse. If this action would lie on an ouster being proved, it would recpiire to be such an ouster as would enable plaintiff to sustain (Jectment. The evidence in this case would not be sufficient for that pur- ].osc— 5 lUir. 200 1 ; 1 Kast. 568 ; 1 B. «r Aid. 85. If the plaintiff had intended to rely on an ouster their writ ought to have so stated. That was the case in 7 C. H. 441. Halmhurton, (7, ./. I think the action wae misconceived, and can- r.ot be brought under Uie cireurastances. }ti iili 1):: I :M0 F'REEMAN v. MORTON. Bmss, J. This point was, I think, decided in Freeman v. Morton,'' ,i few years ago in this conit. Do I)]) and Dksbarkks, ,/., concurred in that opinion. WiLKiNs, ,/. 1 think there ought to be a new trial. This was one ct the first cases tried before me, and, with the experience 1 have since had, I should not have refused leave to amend. If the plea of tenancy in common had been put on tlic record, it would have stated that plaintiff' and defendant's lessor were tenants in common of tlie land. It would liave then been my duty to guard the jury as respects the amount of the damages to be awarded by them. I should have told them that they could only give damages for the undivided interest the plaintifl" had in the hay, and not for the whole amount taken. I think also I directed the attention of the Jury too much to the point that the sale of the hay by licardHJij, the tenant in common, to tlie defendant, was a wrongful conversion; and though such an act was sufficient to found an action of tiover upon, I do not know whether it was one for wliich trespass would lie. ■'•'The case of Freeman v. Marfan was as follows: — FREEMAN, ET. AL. v. MORTON. One tenant in cctunion cannot sustain p.n action against anotlier. This was an ution on the case. The declaration contains ten counts. The first count alleges that the plaintifls were lawfully pos- sessed of a certain mill and premises, and of a certain mill-race an(l water privilege held therewith and incident thereto, by reason whereof they of right ought to have the benefit of the water of a certain stream flow- ing into and from the wheel of tlieir mill, through and along the said race, freely and uninterruptedly, for the convenient M'orking of their said mill ; and that the defendant wrongfully erected a certain shed :iear to their said mill, and continued the same a long time, whereby their mill was daik- cMcd, aiid the light and air prevented from entering the raceway ^uul into the machinery of the mill, and the communication therewith was obstruct- vA ; and also, the water obstructed in its flow thro\igh the raceway, and dammed and penned back upon the wheels and machinery of said mills, in liie sevun following counts the plaintiffs also declare upon their pos- session of the mill. «fcc., the gravamen being differently stated in each, — in some it is described as the erection of a shed, from which the rain- water flowed down upon the mill of the plaintiffs to its injury ; in others, as the erection of an embankment and breast-works ; of wheels and ma- FREEMAN v. MORTON. 311 (.hincry in a contiguous iiiiil of the defendants, by which the flow of water was obstructed and dammed back upon the plaintiff's mill. In the eighth count the gravamen is the erection upon the raceway to which the plain- tiffs are intitlcd, of certain cross beams supported by staunchions, restinjj tin tiie conduit floor of the said raceway, .ind the piling boards &c. there- on, whereby the conduit floor was broken, and the unobstructed use oi thr" raceway by the plaintiffs hindered, &c., &lc. In the viiilh count the plaintiffs set out that they and the said defend- ant were lawfully possessed, as tenants in common of a certain mill, &(•.. with a mill-race and water privilege, and certain easements for the free admission of light and water into the said raceway, and of light and air into the said mill as incident thereto, under a certain agreement, to whi'^ii Sl/npon Frcvinnii. one of the plaintiflTs, anu the c'.cfendant, on behalf of themselves and others under whom the said plaintifls claim, were parties. That the defendant, being the owner of a certain other mill, mill-race and ground, contiguous to the first, wrongfully erected and kept erected across his own' mill-race and ground a shed, and embankments ami breastworks near to the first mill held in common, whereb" this mill was darkened, the light and air excluded from entering it and tlx- raceway as they were be- fore wont to do, and tbo accustomed flow of water through their raceway obstructed, and the plaintiffs greatly injured in the enjoyment of the mill, v!tc., held by them and the de/endunt as ?uch ienanta in common. The tenth and hist eonnt is similar to the ninth, with this difference, that the ;^rcctions complained of instead of being stated to be placed ou tlie defendant's own mill race and ground, are described to be upon and across the mill-ra?e in which the plaintiffs and defendant were jointly in- terested as such tenants in common. The plea was the general issue. The cause was tried befere Doj)i>, J., at I.iverpool, when the planitifl's i)l)tained a verdict. A rule nisi, to set this aside, was granted, and argued .It great length before the whole Court during the last term. ./. II'. Johimton. By the evidence it appears that the plaintiff's were co- tenants with the defendant of the mill, for the injury of which tliis action was brought. As the injury did not amount to total destruction, nor to such nn injury that an action of waste would lie, the question was whe- ther an action of the case would lie against the co-tenant, as if he had beorl ;> stranger, for such an injury. No action would lie on proof like tliut here adduced. They ouglit to have stated in their declaration that defendant was a co-tenant, and have proved it as laid, and then action %sill only lie for immediate damage 1 Co. Litt. Thos. Edition 784-5 ; 1 ( hitty Gen. Prac. 270-2 ; Com. Dig. Estate K. 8 ; 8 T. R. M.'i ; 8 B. vV Cress. 257. t ', 4:,.v ,|M^l'LTHi^i^i HIU*I »*'*yfT-'^ ";■! n^V ■• ^- •■-jn- il' 1 ;; i-2 FREEMAN' r. MORTON, Tlicrc must bo something approaching (o destiuction or waste. In an action on waste, it must be proved immediate, and show the privily ot estate between the plaintiff and defendant. It at first only lay by rever- sioner and remainder man. b\it this was cured by Statute : 2 Saund. •->.J2 n 7. In ejec'tmont tenants in common must sever, but in (ju. el. Ircglt they must join, but objection can only be taken advantage of by pica in abate- ment, 1 Saund. •J'.U (k; : beea:ise the damages are indivisible — Arch. I'l. ;{7. The joinder of parties in an action will depend on the ilivisibility or indivisibility of damages. If indivisible, all ought to be joined. If damages are divisible, action ought to be brought by parties sep- arately. ^'oluntary waste will be trespass as between strangers : permis- sive waste lies only between privies, and their relationship must be sliev.K — 12 East. I,y2 ; S East. U ; :? Car. v.V Tayne, 'A)l : 1 Bar. & Cress. (><) 1. An incorporeal hereditament can only pass by deed, and an action can only be brought by the original grantee, and not by his assignee. Ten- ants in common must all join in granting an incor])oreal hereditament — I Bar. cV Cr. 700. There cannot be a license restrictive. Wherever anything is forbidden to be done there must be covenant. If there is a natural right to use land in a particulur manner bv its owner, anv restriction of tiiat right must 1)0 by a covenant. Where inadmissible evidence a^jplies to good and bad counts, it cannot be known how far it influenced .lurv. hence a new trial ought to be award- fd — l)u. g. o77. H . Yomi;/. If proprietors of land acquiesce in a stranger's erecting build- ings on their land, this accpiiescencc will give a title which cannot be dis- turbed without making disturber liable to an action for .nuch disturbance. All the incidents necessary for the enjoyment of such a building M'ill pass l>y the license. In this case they have acquiesced ; the license given wast for ;. valuable consideration, and such license cannot bo revoked — o Moor ».V Pavne, 712. If one deliberatelv and with fidl knowledge allow another to build on his land, it is presumption of a grant. There is no apportionment of damages when action is by tenants in common. A tenant in common has a remedy against co-tenant for misuser, though .such misuser does not amount to a was-te. Great rrvodifications have been introduced since the action of waste has fallen into disuse, and action on the case in the nature of waste substituted — .) Taunt. 20. An action of trespass could not lie under the circumstances of this case. llll FREEMAN v. MORTON. 343 for in order to support that action a total destruction would have to be proved. In no other case can exclusive possession be shewn which is the foundation of that action — 2 Sand. 252. The injuries complained of arc within the scope of action on the case. An action on the case will now lie for commissive as well as permissive waste— 2 Saund. 113 (a), 114 (c) ; Ros. Real Action, 174-C, 186-7-8, and 383-4, 674. If one co-tenant plaintiff be not joined in tort, it can only be taken ad- vantage of by plea in abatement. In action ex contractu it is different, for then, though there be no plea in abatement, the action will fail if more parties are shewn, by the evidence, than appear on the record as plaintiffs. In what cases tenants may join, and must join — vid. Ros. Real Actions, 7, 197, 372, 665 ; Steph. PI. 8 ; Litt. § 315; Bac. Abr. Joint Tenants, K. ; Cro. Jac. 231 ; 2 Bl. 1077. The search to be made for a lost paper depends on circumstances ; it must be the best of which the nature of the case admits — 8 Scott, 86 ; 2 Moody & Rob. 60 ; 2 M. & Wels, 214 ; 2 M. & Ry. 430 ; 1 Car. &i Payne, 139; 9 Jurist, 898. Bi,iss, J. The case is an important one, beset with difficulties. Not only have several legal questions been brought under our notice, of the first magnitude, but the facts themselves are intricate, involved in much uncertainty, and that in a most material point, from the nature of the evi- dence out of which they are to be collected. It will be necessary, how- ever, to notice but one or two of the many various questions which were raised at the argument, or, at most, to glance on some while we pass on to those upon which we think the case may be disposed of. The promi- nent facts, which it will be sufficient for this purpose to mention, are au follows : — Many years before the mill, the subject of the present action, was built, just below on the same stream which supplies both with water there was another mill owned by several persons as tenants in common, all whose rights and title were subsequently conveyed to the present defendant, who thus became, when the present action was brought, the sole legal owner and possessor of the same. In the year 1828, when the defendant was but a part owner of this ancient mill, the building of a new mill was projected — that in which the plaintiffs are interested. A building committee was appointed, and an agreement was entered into by the then owners of the old mill and others, for the building of the new mill — under which, without any conveyance or other title, it was built. It has since then changed hands several times, and when the action was brought was owned by the plaintiffs and the defendant as tenants in com- 8 ViMl •■ (|J> Hi. «" **•■ is 344 FREEMAN i. MORTON. I' mon. This agreement under which it was built wag not produced at the trial, but after some 'jvidencc of an unsuccessful search for it, not satis- factory however to tie learned Judge who tried the case, the counsel for the plaintiffs proposed to give secondary evidence of its contents. This« though against his o^n opinion the learned Judge at length admitted, subject to the objection which had been made to its reception. Now it is this secondary evidence which I have spoken of as uncertain, and which to me is very unsatisfactory. From the witness, Saimtel Freeman, who alone gives any evidence on the subject, we obtain but an imperfect knowledge of it. His statement is, that he remembers some of the words of the agreement. And that ho remembers some, not the whole, seems scarcely open to doubt, for all that he can state is, that " the new pro- prietors in building the mill were not to interfere with the old mill, — they were to make a new race course and keep it cleared out." In another part of his evidence he says, '* the new mill was to be built, provided it did no injury to the old mill. And the proprietors of the new mill, not inter- ested in the old mill, had to pay <£4 a share to the proprietors of the old mill." From which we may collect that some proprietors in the old mill together with other strangers became, under this agreement, thus jointly interested in the neAr mill. But it seems impossible to conceive that this could have been the whole of the agreement, and loosely as matters ap- pear to have been transacted, and careless or ignorant as the parties must have been, when the title of land with peculiar casements of great value connected therewith were made the subject of a mere written agreement, still it does appear to me that the objects and intentions which they had in view must necessarily have led them to more detail than we can gather from this very brief and disjointed statement. The witness does not even give the names of those by whom the paper was executed. I pass by, however, the objections which may arise from a title like this, from the insufficiency of the proof of the agreement, and the alleged variance between it and the agreement set out in the declaration, merely observing as I pass, on the extreme difficulty in which a Court must be placed to decide upon a case like the present, upon such facts as these. For assuming that this agreement of 1828 was equivalent to a deed or grant as a license irrevocable, or that the acquiescence of the defendant and those under whom he claims in the building of the new mill, is evidence from which a grant may be presumed — as was urged by the plaintiffs counsel, but upon which I must not be understood as passing an opinion — still what evidence have we to ascertain the exact nature of those ease- ments and their extent, upon which the present action depends. Before we can see whether there has been a violation of the right of the plain- FKEEMAN v. MORTON. 345 tiflFs we must know what were conceded by the owners of the old mill. And this is a difficulty which appears to me to meet the plaintiflfa at the very threshold of their case. They have themselves set out in their 9th and 10th counts their right to the easements in question as derived under this agreement of 1828, and it is clear from the evidence that it can be claimed in no other way. If this agreement docs not fully appear before us, it is impossible for the plaintiffs to recover. One partially or imper- fectly disclosed it would be obviously unsafe to trust to, — in that case the agreement could not be proved. If we have the whole of the agreement on this secondary evidence then I must say, for one, that I cannot collect from it with sufficient certainty that these particular casements of light and air into the raceway or mill and machinery were given to the pro- prietors of the new mill, so as to entitle them to an action for these alleged obstructions. These would, at all events, be important and dis- tinct questions to be submitted to the jury, it there be any evidence to support them. I proceed, however, to other facts. In the year 1836 the old mill was removed and another erected upon, or nearly upon, its site, by the defen- dant and the other part owners thereof, among whom were some of the present plaintiffs. On this occasion another agreement, a verbal one, was entered into, by which the owners of the old mill were permitted to put a sill in the race of the plaintiffs mill, upon the proprietors of the old mill agreeing to keep the race clear In 1845 the defendant, who had in the meantime became the sole owner of the old mill thus rebuilt and was still a part owner with the plaintiflFs in their mill, put a spiral vent wheel under his own mill upon part of the race of the plaintiffs mill which runs under defendants mill, and fastened it down to the conduit floor of plain- tiffs mill. He also erected a shed upon a small vacant space between the two mills, and made some embankments at the lower part of the plain- tiffs raceway to the obstruction of the water. These are the several wrongful acts complained of, — and upon these, after some contradictory evidence as to their being injurious or not to the plaintiffs mill, the ver- dict of the jury was given for the plaintiffs. It is evident then that a general verdict having been given upon these matters, if it cannot be sustained upon any one, it must be sot aside and a new trial awarded. And this we are of opinion is the case before ub. The gravamen in respect of the spiral vent wheel is only charged in the eight first counts. Upon this branch of iho cas(^ the opinion of the Court has already been intinialcd when the case was formerly before ub. The right to the flow of water thereby t)bBtructed is not in virtue of the plaintiffs pogscssicn of rhc mill, bn', if 't (\xipi;t at all. i;;. as thp evidnnro Ml I 1:4i 346 FREEMAN v. MORTON. :;!il Sir shews, under the agreement of 1828. The right by reason of the possession can be supported only by proof of 20 years use of the water. Frankttm v. Earl of Falmouth, 2 A., E. 452. The plaintiffs thereupon amended their declaration by adding the 9th and 10th counts. It would have been more prudent to have struck out all the former counts and remodelled them as the two last. In these however there is no mention of the spiral vent wheel, — yet it formed part of the plaintiffs case under the evidence, and is' included in the general damages. Again, the plaintiffs complain of the erection of the shed by which light and air were excluded from their mill, &c. The possession of the mill in right of which this easement is claimed in the ei^ht first counts does not entitle the plaintiffs to it, unless there has been an uninterrupted possession and enjoyment for 20 years, and theirs fall short of this period, — and besides, as already mentioned these eight counts will not support the action. It is upon the two last that the plaintiffs can recover if at all ; and in those they lay their right to the casement as incident to their possession under the written agreement of 1828. Now I have already remarked that I can find in that agreement, as far as it was proved, no concession of such a particular right as :t*iln. It is, indeed, stated by Samuel Freeman that the vacant space on'^" uch this shed was built was considered by him as belonging to the plaintiffs by the agreement. He had spoken of both agreements — that of 1828 and 1836; if he meant the former there is nothing in the proof to warrant that belief ; but it would seem that the agreement of 1836 must necessarily have been re- ferred, for the same witness says that the shed built by the defendant occupies part of the space where the old mill stood, — which is conclusive on that point. The defendant then had full right to occupy it with the shed, and, if it excluded the light and air from the plaintiffs mill, it was no violation of any right derived under the agreement of 1 828 as declared upon, though it might have been in contravention of the agreement of 1 836, for which case might be brought, I think — though it was urged by the defendant's counsel that such action would not lie — {Mast. v. Oood' son, 3 Wils. 348.) It is clear to me, however, that the plaintiffs cannot recover for this as the declaration now stands. The verdict then which includes damages in these respects cannot bo supported, and there must be a new trial. It would bo but a narrow ground, however, upon which to decide this case when others of a more extensive operation lie behind. This is the second time in which it has been before us, and if the new trial sliould be granted upon this point alone, it may possibly be hero again. "We think it then due to ilic plaintiffs, as their counsel have also requested, if there FREEMAN *;. MORTON. 347 be an objection which is i'ativl to the action itself, to dispose of that also, that they maj' not prolong a useless controversy. t The plaintiffs and defendant are tenants in common of the mill, pri- vileges and appurtenances, for an injury to which, by the act of the defendant, the present suit is brought. I am of opinion that no such action will lie. With respect to chattels the law seems clear, that no action will lie by one tenant in common against another unless there has been a total des- truction of the thing held in common, or that which is equivalent to a destruction of it. — (Lev. 29.) Thus in Graves v. Sawar's case, for that, whereas, plaintiff was possessed of the sixteenth part of a ship in com- mon with defendant who, to defraud him of his part, had disposed of the whole and sent it to India without his assent. After verdict, judgment was stayed because no such action lies by one tenant in common against another. Nor is the supposal of fraud material in the case, for between tenants in common there cannot be fraud, as Wyndham said, for by law each has the power to dispose of the whole. — (Cited in 4 East, 120.) In Bamardiston v. Ghapi, tn., in a case somewhat similar, where one tenant in common had forcibly taken away the ship from the possession of the other, secreted it, , id changed its name, and it was carried to Antigua, and there lost — King, Gh. J., left it to the jury whether this was not a destruction by the defendant's means. But the sale of the shi]* by one tenant in common will not give the other a right of action. — {Heath v. Hubbard, 4 East., 126.) If two be possessed of chattels personal in common, as of a horse, an ox, or a cow, and if the one takes the whole to himself out of the pos- session of the other, the latter hath no other remedy but to take this from him who hath done to him the wrong, to occupy in common and when he can see his time. — (Lit., sect. 323.) Sec also Bro. Abr. Trespass 63; Fennings v. Ld. Granville, 1 Taunt. 241. The doctrine is the same as to real property. One tenant in common shall not have an action of a close broken against the other, — but it is a good plea that he and the other are tenants. — (14 Viner, 514, cites Bro. tenants in com., pi. 22.) So it is said in Brook Trespass, pi. 230 : " One tenant in common may abate that which the other builds and he cannot have thereof an action of trespass." So, in Co. Lit., 199 (b): "If one tenant in common take the whole pro- ftts, the other has no remedy by law against him : for this is in ejectment." At tlic present day this may amount to an evidqnce of actual ouster, but nothing short of an ouster can give one tenant in common any remedy i».'r 'I ijM 348 FREEMAN r. MORTON. against the other. The destruction of the chattel, and the actual ouster from the land, alike put an end to the holding in common. And thus put an end also to the pica which is a bar to the action. — Co. Lit. 200 (b.) The defendant, as Lord Coke says, cannot plead tenancy in common, — for there can be no tenancy in common of a thing destroyed. " Where tw^ hold the wardship of lands or tenements during the nonage of an infant, if the one oust the other of his possession, he which is ousted shall have a writ of ejectment de gard of the moiety, because that these things are chattels real and may be apportioned and severed, but no action of trespass, qu. cl. fr. et hnjusmodi actiones, the one can not have against the other, for that each of them may enter and occupy the lands and tenements which they hold in common." Lit., sect. 323. It has, however, been held very likely in C. B., in trespass by one tenant in common against another, for entering his house and expelling him therefrom, that trespass would lie where ejectment did, but that was sus- tainable where there had been an actual ouster {Murray v. Hill, Feb. 1 849.) It is clear from all these and other authorities that tenants in common can maintain no action against each other at common law, in respect to the real estate except where one has been ousted by his companion — that is, the action will only lie where the tenancy in common has been put an end to. As then trespass will not lie, the possession of one being the posses- sion of all, and all having full power to use the land, short of an actual expulsion of each other, an action on the case by one against another for any partial injury to the joint property, would be equally out of the ques- tion, as being equally opposed to the nature of a tenancy in common and the incidents attached to it. Nor can I find any mention of such an action in the older books with the exception to which I shall have to r. ''ert. It was to supply in some measure this deficiency of the common law that a writ of waste was given by the Stat, of Westm. 2, C. 22, (13 Ed. 1): " Whereas, two or more do hold wood, turf land, a fishing, or other such thing in common, wherein none knoweth his several, and some of them do waste against the minds of the other, an action may lie by writ of waste." The old writ of waste having generally fallen into disuse, and an action on the case in nature of waste having of late taken its place, it seems to have been supposed, but as I venture to think, erroneously, that the same remedy of an action on the case was applicable to tenants in common. I do not know of a single instance in which such an action has been successfully maintained, and whenever it has been mentioned it will appear I think to have been considered as a substitute for the original action of waste and confined to those cases in which that action could be FRKKMAN v. MORTON. 349 hroiif^ht by a tenant in common. The very expression of " an action on the case in nature of waste" almost implies as much. — (8 T. R. 146.) In Martin v. Knoivlys, which was such an action. Lord Kenyan says : — " If one tenant in common misuse that which he has in common with another he is answerable to the other in an action as for a misfeasance, but, he adds, here it does not appear that the defendant committed anything like waste," which shews very clearly I think that the misfeasance, which he thought would support the action, must amount to waste. The opinion of Littledale, J., in Guhitt v. Porter, 8 B. and C. 268, was also relied on in support of such an action. He says, " In Com. Dig. Estates, K. 8, there are various cases as to the remedy which one tenant in common has against another." He then mentions ejectment, if one actually ousts his companion, — and trespass, where there has been a complete destruction of the subject matter of the tenancy in common. *' In other cases where there has not been a total destruction, but only a partial injury to it, waste or an action on the case will lie by one tenant in common against another, — as if one tenant in common of a wood or piscary does waste against the will of the other he shall have waste, — or if one corrupt the water he shall have an action on the case." Now here the learned judge is using the very language of the Stat, of Westm. 2. And the authority to which ho refers. Com. Dig., refers to Co. Lit., 200 (b), which again cites the Stat, of Westm. 2, upon which the whole doctrine thus appears to be founded. In the last instance which he puts, that of corrupting the water, for which it is said an action on the case will lie, Lord Coke, from whom it is taken says : " If two several owners of houses have a river in common between them, if one of them corrupt the river the other shall have an action on his case." But this, when examined, will be found to be by no means an example in which one tenant in common may maintain case against his companion for an injury to their common pro- perty. The authority cited is 13 H. 7. 26. The case is to be found in 14 Viner. 516, pi. 19 : "If A and B are jointly leased of a river, and A has a house adjoining, — if B corrupts the water A shall have an action on the case, /or B is not joint tenant to A in the house to which, Sc." The action then is brought, not for the injury to the river, their joint property, but for the consequential injury to the house, the sole pro- perty of the plaintiff. The action lies just as it would lie against any other person for a similar wrong. For though one tenant in common might corrupt the water without being liable to an action in the case at the suit of the other for that act alone, yet if the act produce a resulting damage to any other sole property of his companion, he is liable for that, because, as the case intimates, there is no joint ownership in the property In!') h^ fl ->5- !l ,i H m ?f •M iK m J 3S0 1-RREMAN t. MOBTON. U : hi ,1 I WW injured to interfere with the action. Tlic same doctrine is stated in n modern cuso — in liradhcc v. (Jkrist'n Jlonpitdl, i M. and Or. 761, wlicre the plaintiff complained of an injury to hiy house by tiie taking down of an adjoining wall by the defendants, and it was doubtful whetlier tliey were tenants in common or not of this wall, the Court lield tliat " in either event an action on the case was maintainable against the defendant in respect of the injury which resulted from the mode of their dealing with it." In these cases it is obvious that the tenancy in common is altogether an immaterial ingredient. Tlic legitimate use of the common property by the one cannot justify the consequential injury thereby to the sole property of the other, any more than it could to his person, or to the person or property of a stranger. The principle is precisely the same. I have said thus much upon this case cited by Littlcdale, J., because it appears, at first, to give color to the proposition that an action on the case will lie by one tenant in common against another, without reference to the statute of Westm. for waste, to which all the other instances nu tioned by that learned Judge clearly refer. Indeed, if any one will com- pare what ho says with Com. Dig., which he cites, it will be evident that he must have had the book before him, and was reading from it, — so that it is, after all, the authority of Lord Coke, from which Gomyns cites, to which we are brought back, and that is the statute itself, with the single case of that for corrupting the river, which, pace tanti viri, and with all humility, I venture to say is not an authority for the maintenance of a case by a tenant in common for an injury to the joint property, if indeed Lord Coke so considered it. The only action, then, of the kind which the tenant in common can have, is derived from the statute of Westm., and will lie only when waste would lie under that. What is waste ? It appears to be something done upon the land or tenement to the destruc- tion of it {vastando). Blackstone (2 Comm. 281) defines it "as a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion " ; and again (3 Comm. 223) he says, " it is effected by demolishing not the temporary profits only, but the very substance of the thing, thereby rendering it wild and desolate." Nor do I find that any act done off the land, which remotely and in its consequences causes an injury to the land, can be denominated waste. And when it is considered that waste arises solel} out of the relationship of the tenant and him who has the infmediate estate of inheritance — that it is an abuse by the former of the temporary possession which he holds, and of the opportunities which that possession gives him to do something inconsistent with his L'mited rights, it seems reasonable that waste should be thus restricted. That which is done off the land is not done as tenant of the liind ; he is iinoad hoc a stranger, and tor such acta, an 1 for the in juries which follow from them, the rever- sioner may sue and recover, not as waste, hut as he might sue and recover for any such acts done hy any one, which were i)rcjudicial to his rever- sionary rights. If one who is tenant of .mother shut up a window or di- vert a stream which Hows tlirough his grounds so tenanted, it may bo waste ; hut if being the owner of the adjoining land, he so builds thereon ns to darken the light of the house which he holds as tenant, or so uses the stream of water through his own land as to obstruct the beneficial use of it in the lands of which he is tenant, an arfion on (he cnnc may lie against him as it would against a stranger, but not, us I conceive, loastfi. As owner of the adjoining land he may possibly have full right so to deal with that, even where it jjroduces such injurious effects to the land which he occupies as tenant. 'J'ins accidental occupation of tiie one land as ten- ant, cannot take away or diminish his absolute rights m the other. Hut he can do no act upon the land of which he is tenant to the prejudice of the inheritance ; and for all waste committed on It he is liable, even when done by a stranger, for the law presumes that the tenant may withstand it. 22 Viner. 450. " A' < i/uinoti oh.sfai qnod odliirr potest farrre vide- fur" — a further proof this, that waste lies only for that which is done up- on the land, since the tenant could never be supposed capable of with- standing what is done off it. The judgment in waste appears too to confirm this, by which, in addition to treble damages, the place in which the waste was done, was recovered. In the case before us none of the acts complained of were done upon the common property of the plaintiffs and defendant, nor have they pro- duced any destruction or injury to the siihstanee of it, or to the corporeal hereditaincnfs. They affect certain casements claimed to belong to the property, but that is all, and are therefore, in my opinion, not such acts for which waste mipht be maintained, nor an action on the case in nature of waste against a tenant in common. A further difficulty presents itself to my mind. The stat. of Wcstm., as we have seen, gives the writ of waste where two or more hold wood, turf-land or fishing, or other such thing, in common ; now other things, huj}tn modi, cannot include mills, which are of a very different kind. And Lord Coke, in his commentary on this statute, says expressly — " this act extendeth not to castles, houses, or other places for the habitation of man, for one joint tenant or tenant in common might have had for reparation of them a writ dc reparalionc fncienda.'" — 2 Ins. 403. Now, though he does not expressly mention mills, yet they clearly fall within the rea- son assigned ; and the same writ de reparatione lies as well between ten- if 'm i i ! ;i52 KKKKMAN r. MOFiTOX. ants in common in respect of them, as he elsewhere shews. — Co. Lit. 200. Whether this writ dr riji. far. will lie in this country or not is imma- terial, for wo cannot at all events adopt the stiit. of Wcstm. and give it u further extension than it received in the liin ;j'.8 SALTER A; TWINING r. FULL. tin is an aciton on the award. We rely upon the award, and the objections urged by the other side must be strictly confined to that award. The submission in this case was not a general one of all matters in difference between the pai "^ies when parol evidence might be adduced to show what were the nature o" those differences, but was a specific reference of one matter alone — the non-delivery of the cargo. It is expressly stated on the face of tlie submission, and all parol testimony is therefore excluded. The instrument is clear and needs no parol evidence to explain its mean- ing. Whether the plaintiffs were purchasing as agents for persons in Montreal or for themselves was perfectly immaterial, and so the arbitra- tors seem to have considered. Tliey determined the question that was referred to them, and they state that they will come to no decision as to the truth of the statements relative to the Montreal order made by the parties before them. They did riglitly ; it was the non-delivery of the cargo and not the truth or falsehoods of those statements that, by the submission, was referred to them. Courts will construe awards liberally. 5 Eng. R. 458, Cro. Jac. 314. The arbitrators are only required to settle the material matters referred to them. 8 Pkst. 449 ; 1 Swants. 82 ; 2 B. and Cr. 170 ; Caldw. on Arb., Ill Str. 903 ; Poph. 15-16, 1 Q. B. 98 ; 5 M. & W. 199-322 ; 2 Cr. & M. 722 ; 4 Dowl. P. C. 148. The Attorney General, J. II'. Jiitrhie and (S*. //. Shannon for defend- ants. It is quite clear what the defendant's intentions were when he entered into the submission. He was quite loose ; there was nothing to bind him. But ho was willing to dcjirive himself of this advar*^age if arbitrators could be found who would say that there had not been an atte- pt to deceive him. [Bliss. J. Does it appear that he knew his rights :] We are to assume that he knew what those rights were. If the truth or falsity of certain statements were actually in difference, the arbitrators ought to have determined that point. It is not er.ough to say that th°y were ngt material to tlie determination of the main point at issue — the non-delivery of the cargo ; it was a matter for them to decide. They were however material. 7 East. 81: 1 B. & Ad. 723 ; 3 Ad. . September, 1856, another writ was issued, purporting to be an alias writ, but in which the damages were laid at £23. The cause of action had arisen, May 5, 1849. The defendant pleaded the statute of limitations. The suit was tried summarily, and judgment given for £14 10s. 2d. C. Twining, This was a declaration suit, and could not be tried in a sum-mary way. There ought to have been a non-suit. There was no re- plication to the plea of the statute, and evidence of the first writ could not therefore be received. In this case, the writ issued in May differed materially from that sued out in September. The former was a summary writ ; the latter was a declaration suit. More than a year had elapsed between their issue. {Holland v. Bowyer, 1 James, R. 45.) By analogy to that section which puts a party out of Court if he fails to give security within a year, a party will be considered to have discontinued if he do nothing for more than twelve months. A. James. The case of Holland v. Botvyer was decided under the old practice. Under that practice, entries were made on a roll, and the writs were thus connected together. But no such entries are necessary by our present practice. In England a writ is only in force for six months, but here there is no statutory limit of its operation. The sole difference between the writs is the amount of the damages. But that is immaterial. The main point is whether the cause of action is the same. C. A. V. . ife. f :'»-:; Bliss, J. This was an action upon an account stated, &c. The defendant, among other things, pleaded the statute of limitations. The cause was tried summarily before Dodd, J. To take the case out of the statute : the plaintiff gave in evidence a writ of summons issued May 3, 1855, which was within the six years. This was returned not served, and an alias M'rit issued 6th September, 1856. The evidence of the first ■writ was objected to on the ground that it was inadmissible under the pleadings ; other objections were also taken to its reception. The learned Judge received them, and gave judgment for the plaintiff. These ques- tions now come before the Court on a rule nisi for a new trial, and were argued before niy brethren Desharres and Wilkins, and myself, in Easter Term last. I bad some doubts at first upon the case, but upon consideration I think that these objections cannot be sustained. The first quest'* . resolves itself into this : whether it was necessary to reply the issuing of the first writ. Our practice act now takes away the replication unless by permission of the Court ; and when it is not put in, the plaintiff is taken to have joined issue on the defendant's plea. SMITH V. GILLIES. 863 The issue, then, here is, that the action did not accrue within six years before the suit. Now, then, what is the commencement of the suit ? It is undoubtedly the writ, as the Court has held on more than one occasion, and as the practice act, too, makes it, which directs that " all personal actions shall be commenced by writ of summons," &c. Here the suit was commenced by a summons, which being returned not served, an alias summons was issued, upon which the action proceeded. It would be difficult, I think, to make out that the first was not the real commencement of the action. It is a writ in the same cause, always taxable as an item of the costs of the cause, and is, to all intents and purposes, the first step taken in the cause, and thus the true commencement of it. In the Courts in England, owing to the great difference in their forms and practice, it becomes necessary to reply specially to the statute of limitations, the issuing of a writ within six years v;ith an intent to implead the defendant thereon. The reason of this will be obvious, as well as its inapplicability to the practice and proceedings with us, if we turn our attention, for a moment, to a case as it might arise in the English Courts. Let us take the Court of Queen's Bench, for instance. There the exhibiting of the bill is in general considered as the commencement of the action ; but, in order to avoid the effect of the plea of the statute of limitations, a bill of Middle- sex or a latitat is held to be the commencement, as is thus explained by Lord Mansfield in Johnston v. Smith, 2 Burr. 961 : "It was not settled," he says, " till masy years after the statute, that the plaintiff could reply a latitat sued out within the six years. There coidd be no doubt but that exhibiting the bill was bringing the action, and therefore the plea that six years had run before exhibiting the bill was cerfa'^ly good ; but the latitat was held (and rightly) to save the bar within the reason and equity of the case. This statute did not intend to bar unless the party had acquiesced six years ; but he who sued out a latitat to bring the defendant into custody, that he might declare against him, did not acquiesce within the true meaning of the act, though artificially the bill is, upon the record, the first step." So that the bill, as we see, being, generally considered, the commencement of the action, if the plaintiff should take issue upon the plea of the statute, he would fail ; and therefore, when it is necessary for him to treat the bill not as the commencement, "but to fall back upon another process as the commencement, it is obvious that he must reply that specially. But here with us, the action is and can only be com- menced in one way — that is, by a writ — and the plaintiff has no occa- sion, in order to meet the plea of the statute, to rely on a previous pro- cess or commencement of the action different in its character, but only on • 364 SMITH V. GILLIES. : :ii {■■'i m ■i\i a previous writ of the very same kind by which the dcfcmlant has been brought into Court: the last writ being issued only because the first was not successful in its object, and no service being effected on the party, another — an alias — became necessary. It is one and the same process, for the same purpose, and in the same suit ; and there seems, therefore, not the least reason why it should be replied specially. It meets and supports the very point in issue, and is, as I conceive, perfectly admissi- ble therefore in evidence under it. I have the less hesitation in arriving at this conclusion, for when the statute abolished the replication unless where express leave was obtained, it was no doubt to prevent, as tar as possible, unnecessary prolixity in pleading. And while that object is secured, it ought not to limit too closely the plaintiff, but should receive rather a large and beneficial construction, so as to let in every fair and legitimate answer to the plea which the merits of the case may require. Having thus disposed of the main question, the remaining objections are to be considered, and whether they are of sufficient weight to pre- vent the second writ being connected with the first, so that the first cannot be treated as the commencement of the action. The rule formerly seems to have prevailed that a term must not be allowed to intervene between the original and an alias writ. But whether this were correct or not, there can be no ground, I apprehend, at all events, for such a rule at present. According to that rule, the second writ was to be tested on the day when the first writ was returnable. But that cannot now be the case, for the test of a writ has been abolished, and it is no longer returnable, as before, on a day specified in the writ. Continuances, too, are, by the practice act, no longer necessary. They were always mere formal proceedings, which could be entered at any time ; and if it had been necessary to reply here specially the issuing of the first writ, that formal connection of the one writ with the other need not have been stated. All that is now necessary for us is to see that the one writ is substantially and truly what it professes to be — an alias, of which the other is the original. Now, when we compare the two here, the one appears verbatim the counterpart or copy of the other, those words being introduced which make it an alias writ : the only variation from it being that in the first the damages are laid at £16, and in the last at £23 — and that in the particulars annexed to the second writ, an item for interest on the sum claimed is added, which swells up the whole amount to a sum above £20. I cannot look upon this variance with respect to the dam- ages. — a matter in general of great insignificance — as sufficient to destroy its character as an alias writ, which every other circumstance clearly shews it to be. The increase of the claim for interest, and the SMITH V. GILLIES. 365 larger amount of damages laid in the last writ, which raise it above the class of summary causes, may perhaps have some effect upon the question of costs, but cannot, I think, substantially affect the present question. I am, therefore, on the whole, of opinion that the rule for a new trial must be discharged. .'I Desbahres, J. My first impression in this case was that the defen- dant having pleaded the statute, and the plaintiff not having replied to that plea, there ought to be a new trial. But I have become a convert to the reasoning of my brother Bliss. WiLKiNS, J. The cause of action accrued in this case on the 5th of May, 1849. On the 3d of May, 1855, plaintiff sued out a writ of sum- mons against defendant, returnable within ten days after service. This was returned on the 17tL June, 1855, and indorsed "not served." A writ purporting to be an alias writ of summons, of the same species and nature as the first writ, was issued on the 6th September, 1856. The defendant, brought into Court by this process, appeared and pleaded that the right of action did not accrue within six years 'previous to the com- mencement of the suit. The plaintiff did not consider it necessary to obtain leave to reply to this plea, and must therefore be taken to have joined issue upon it, and in effect to have said, in answer to it, that the plaintijf^s cause of action did accrue ivithin six years before the suit was actually commenced. Now, indisputably it was commenced on the 3d of May, 1855, if the writ that issued on that day be so connected with that which issued on the 6th of September, 1856, as that the latter is in rela- tion to the former or alias writ of summons. Under the old practice that existed in England and here before the recent modifications of it under the authority of the legislature, all that was required was that the writs, forming the chain of continuances of process, should be of the same kind ; that the first writ, issued in due time, should be returned and filed, in order to sanction an award of that which followed it ; and that before the plaintiff replied to a plea of the statute of limitations, the continuances should be entered on the roll, from term to term, down to the writ on which — or in which — the plaintiff declared. Even then it was not held important whether the action was r 'gtdai-';t commenced, but whether it was actually commenced, within thelirved time. (Arch. Pr. 2 vol. 171.) It is unnecessary to refer to the chang* :? v/hich British legislation has made in the mode of practice which formerly prevailed, whereby a party was enabled to prevent the operation of the statute of limitations in England by suing out a process within the time limited for bringing the (I n w^ M*t|| IMAGE EVALUATION TEST TARGET (MT-3) // ^.^^ 1.0 I.I ■^ iiii 12.2 us |4 2.0 1-25 1 1.4 1 1.6 < 6" ► Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4S03 «- ^£o M J '^-e regularly done is after all only a presumption, and if, as in this case, it can be clearly shewn that the proceedings were irregular there is then an end of the presumption. As to the assignment of the dower that can only be made by a party having the inheritance and must, be made to a party capable of accepting it. It is in fact simply an offering of the dower to a widow in a position to accept it. The assignment to a mad woman is a very suspicious cir- cumstance in this case. The majority of Angus operates against the plaintiff. For seven years before the sale the defendants as heirs or devisees were in possession, and A\ey remained in quiet possession after that sale. They were in before the sale, by a title paramount to the widow, and the assignment by the plaintiff to the widow will not avail. Mere acquiescence will not give a title to a stranger, nor will a party be deprived of his property by mere verbal declarations without actual fraud. But plaintiff's counsel goes further and argues that an acquiescence in the possession of half will give a title to the whole. m ■ li'fl m 570 cHisHOLM V. McDonald. It , Attarney General. I do not think we can in this case examine the pro- ceedings of the Court of Probate. They must be presumed to have been regular, especially after the lapse of so many years. Had it been the judgment of a foreign Court it would have bsen conclusive. — 1 Greenl. on Evid. 546. A court of competent jurisdiction ought not to have its de- crees set aside coUnferally as in this case. The Governor in Council gave the order on a certificate of the Judge of Probate, and we cannot now enquire whether that certificate was right or wrong. Hallibuhton, C. J. This was an action of ejectment tried at Pictou before il/r. Justice Bliss, in which there was a verdict for the defendants ; and a rule nisi to set that verdict aside has been argued here. The premises in dispute originally formed a part of the estate of the deceased John lIcDonald, and the defendants claim as his heirs and devisees under his last will, and there can be no doubt of their right as such if the plaintiff cannot establish a better title than theirs. He asserts that the said John McDonald did not leave personal assets sufficient to pay his debts, — that the executor made the usual application to the Governor in Council for a license to sell the whole or so much of this real estate as should be necessary to enable them to pay them, which was granted, — that a sale of the premises took place at public auction in the usual manner, at which sale he was the highest bidder, and received a deed from the executors upon pajment of the purchase money. If the plaintiff has established a title under the acts in force at the time of the sale, then the title of the heirs or devisees is barred, and they could take nothing under the will or as heirs to their father in the premises sold conformably to the statute. But the defendants contend that the requisites of the acts in force have not been complied with, and have stated several objections to their pro- ceedings. Before proceeding to examine them I would observe that this case pre- sents two serious questions for our determination, for while it is very important that the claim of the children of a deceased should not be divested upon light grounds, yet, manifestly, the claims of creditors upon the estates, both real and personal, which our legislation have wisely made liable to his debts, should be duly regarded, and no unreasonable impediment sliould be made to realizing their value, which would be the case if captious objections were encouraged to titles grounded upon these wholesome statutes. The deceased died in 1815. The application to the Governor and Council for the appointment of commissioners to enquire into tlie insolvency of his estate wag made in 1819, and, after some delay. CHISHOLM t. McUONALD. 371 the order of sale passed the board on the 28th of April, 1821, in which year, on the 2d June, the sale took place at Pictou, and the plaintiff be- came the purchaser for the sum of £296, — received a deed of the whole, including that now in dispute, — entered into possession of the premises, excepting that part now in dispute, which he contends he set off and allowed to the widow as her dower, and if that were the case her posses- sion of her life estate would enure for his benefit until the period of her death, which did not take place until a few months before the plaintiff brought this action. Now in deciding upon the questions arising in this case we must recollect the length of time that has passed and consider whether, after the lapse of 35 years, it is reasonable to require that the plaintiff should show that the executors did everything that the acts or the laws in force rendered necessary at the time, or whether the principle that " omnia rite acta " does not protect them. In my opinion it does, and disposes of all the objections of the defendants relative to the renun- ciation of the two persons named as executors, and the non-filing of the inventory, &c. Here then we find the plaintiff who purchased from the executors retaining undisputed possession of a most valuable portion of the estate of the deceased under the sale from the executors during the long period of 33 years. We find Angus, one of the defendants, of age at the time of the sale, and neither he nor any other of the heirs of John McDonald, wh'^ must have been many years of age, asserting their claim to what the plaintiff took under his deed, and be it recollected that his deed contained the whole, including the part which he asserts he set off to the widow as her dower. It is true there is no direct proof of her son Angus asserting or being authorized to assert to her holding this portion as her dower, and it is contended that she was in such a state of mind as precluded her from giving any assent herself, although there is reason to believe that no objection was made to it at the time either by her or by any one on her behalf: but I conceive that question cannot now be raised. Sane or iusane she was entitled to dower in her husband's estate, and as she is now de&d no question can now bs made as to the sufficiency of that set off to her by the purchaser of it. It is but fair, however, to observe from the general tenor of the testimony and from Holmes (defendant's witness) that plaintiff had no desire to give her less than she was entitled to. But the Jury have settled this question, and it was their province to do so. I take no notice of the adverse possession of the sons, because if the plaintiff had regularly possessed himself of the title of John McDonald the claim of the children was gone, and if he had assigned a portion, be it moro or loss, to the widow as her dower, no adverse possession of that nvlfel w^-m 872 CHisHoLM /. McDonald. part could affect him during her life. If he had not acquired a title to John McDonald's estate then it is unimportant to consider the rights of the defendants, for the plaintiff is not entitled to recover the possession against them, they hold the lands by possession until some one shews a right to dispossess them. With these remarks T proceed to examine the remaining objections to the title of the plaintiff, — and, first, as to the defects in the proof: That they advertised for 30 days previous to the sale, and stuck up notifications of the sale in the most public places in the township where the lands lay. I think at this distance of time the Jury were bound to infer, in the ab- sence of any proof to the contrary, that all that was required was done, unless it was shewn, not tliat it was dij/irvlt, but that it was impossible to have been done. If the sale had taken place on the 2()th of May, when 30 days had not elapsed from the date of the order, or if, upon proof that the order was sent by post, it had been shown that the post did not reach Pictou in time to admit of 30 days notice, then, unquestionably, the rule could not have been sustained, but as it did not take place till the 2nd of June we cannot admit of proof at the distance of 35 years of the difficulty of passing from Halifax to the place where the lands lay. It was possible and therefore should have been presumed to have been done. But the next objection is one of more weight : the statute 34 Geo. 2, cap. 5, which was in force when the sale took place, enacts " that every executor or administrator who may be authorized and empowered to make sale of any real estate, shall before such sale give bond by himself or his lawful attorney, with two sureties, at the office of the Registrar of the Court of Probate, for the just and legal distribution of the monies arising from such sale." Now, it appears to me, that under this statute, it was as much the duty of a purchaser who claims under a statut'iMe title, to prove that the executor had given the security which the law requires as it was too see tliat 30 days notice had been given, and unfortunately there is an end to the presumption which would otherwise be drawn in his favor from the length of time since the sale, because there has been proof pro- duced in this case which at the least renders it probable that it was not done ; there is not only the production from the Court of Probate of an insufficient bond (one not executed by two sureties) but the surviving ex- ecutor, who was examined as a witness at the trial, after stating that he gave a bond with two sureties, when this bond which was not so executed was put into his hand, then said : " 1 cannot say that I gave a bond with two sureties." It is true that the Judge of Probate certified to the Council that the ex- ecutor had given full and complete security which he was bound to do by CHIRHOLM V. McDonald. 37:J the 62 Geo. 2, cap. 3, before the license could issue, and the Council gave a license to sell the estate of the deceased upon such: certificate, stating in the license of sale that they had received it. It may be con- tended that the purchaser was not bound to look further when the license itself purported to be issued upon the very authority which the statute required. Let us inquire into this. That the purchaser was bound to see that security had been given under 34 Geo. 2 cannot be disputed, and it strikes me that the 52 Geo. 3 was passed to give the heirs of the deceased additional security : its language is : " That it shall not be law- ful to grant license to any executor or administrator for the sale of real estate until such executor or administrator shall file in the Secretary's office the certificate of the Judge of Probate for the county where the lands lie that full and ample security has been given to account for the proceeds of such sale according to law." Now, to give a construction to this act that it was intended to substitute the certificate of the Governor and Council ^^ that the Judge had certified to them that such security had been given'^ for the security itself, would, as this case shews, lessen the security of 4he heirs by upholding a sale of the real estate of their ancestor, when under the former act such sale could not have been upheld. The Judge of Pro- bate has inadvertently. I conclude, given a certificate which the fact did not warrant ; but who is to bear the consequence of that inadvertence, the heirs of the deceased or the purchaser of this estate ? for on one or the other it must fall. I conceive it must fall upon the latter, because as the law aiJod before the 52 Geo. 3 passed he was bound to see that the security required by the act of the 34 Geo. 2 had been given before any sale should take place, and the statute 52 Geo. 3 was passed I conceive to add to the security of the heirs and not to diminish the vigilance of the purchasers. If the executors had no authority to sell the real estate of the testator until they had given the security required by the act, the purchasing from persons who had no authority to sell could not convey title, and therefore the purchaser took nothing under such sale, for every man who purchases the title of another from a third party is bound to see that such third party is authorized to make such sale : caveat emptor applies most strongly in such cases. 1 have arrived at this conclusion with much regret, for I feel that the purchaser was lulled into security by the language of the license which led him to believe that the security had been given. The conduct of the defendants who acquiesced in the sale, so far as to leave him in the quiet possession of so large a part of their father's estate, also raises or justifies the suspicion that their present claim is an after thought. If so, 1 cannot regret that my brethren differ with me upon this point and think khat the purchaser was bound to look nm I 37+ CHISHOLM r. McDonald. furtlier than the certificate of the Governor and Council. They refer to some American cases in support of their views. That of Grny v. Gardiner 3 Mass. R. 329, and of Levirett v. Harris 7 Mass. 292, I fully concur in. In the first case all means of further investigation were at an end by the loss of papers or by the careless mode in which they had been kept, and after the lapse of years it would liave been hard to have put the plaintiff upon such proof. And in the second no certificate of the Judge of Pro- bate was required by the act then in force. That question was for the consideration of the Court who had jurisdiction in the matter, and they rightly decided that every presumption was to be taken in favor of the decision. The next is the case of Roper v. Falrjicld, 11 Mass. 226, which threw the consequences of the mistake, if there were any, upon the heir. Much as I may respect in general the authority of the Ameri- can Judges they are not as binding upon us as the decision of the Courts at Westminster are, and if I find myself unable to relinquish the opinion I entertain in the case, although it is contrary to that of my brethren, it cannot be expected that I should yield it to those who I cannot respect more highly than I do th«m. l^Lisa, J. The plaintiff claims under a deed from the executors of John McDonald, the father of the defendants, upon a sale of the land in question which took place under an order of the Governor in Council dated 2d May 1821, the order itself having passed on the 28th April in that year. The objections taken by the defendants' counsel to the plaintiff's title under this sale and conveyance by the executors are of a two-fold charac- ter : Ist. They attack the order itself on the ground of the irregularity of the proceeding on which it is founded ; and 2ndly, The proceedings subsequent to the order are impugned. As to the first it is objected : Ist. That this order is made to two executors only, whereas by the will there were four executors appointed, and that that there was no evidence of a renunciation by the other two ; 2nd. That it is clear from the evidence that there was no such security given by the executors as the law required before the order of sale could pass. And as to the second class of objections : that there is no sufficient evidence either of such a publication in the Gazette or by handbills as was required under the statute before the sale of the lands could take place. With respect to the regularity of the proceedings prior to the order of the Governor in Council, and upon which that order passed, I confess that as it appears to me wc cannot here inquire into it. n ■ pi iiWt"^^piV« Lpiip IN I cHisHOLM V. McDonald. 375 The Governor and Council had peculiar and exclusive jurisdiction over the matter, and their grder cannot be impeached thus incidentally as long as it stands unrevoked and not set aside. It is like a sentence of a Court of Admiralty which proceeds in rem, and binds not only all parties but every one else. This does not arise merely from the maxim with respect to the proceedings '■^ nmuin pnvsumuntur rite acta,^' for if founded on presumption alone that presumption might be rebutted by proof. But it stands upon higher and stronger ground of the conclusiveness of the deci- sion of a Court of competent and exclusive jurisdiction over the subject matter. I think it is very important that this principle should be fully and strictly upheld. It is necessary that it should be so for the protection of purchasers under such an authority to sell, — whose title if it can be im- peached at all on this ground may be under certain circumstances up to a period of 40 years. In this very case the sale took place 35 years before the action. The purcliaser must otherwise run the risk during all that time of being deprived of the land which he has bought on that order. And if this were permitted, not only purchasers but every one interested in the estate to which the lands sold belonged, would be liable to suffer. No one, subject to have his title thus called in question, would venture to become a purchaser, but only at an inferior price, and, consequently, both creditors and heirs would be seriously affected if such was the law ; and the settlement of estates of deceased debtors under that statutable provi- sion would have been anything but beneficial and satisfactory. See, too, its practical effect exemplified on the purchaser in this case. He has no means of knowing or ascertaining whether the requisites now said to be wanting were so or not at the time of the sale. The order of the Gover- nor and Council is founded upon a certificate of the Judge of Probate. Now supposing that a person desirous of purchasing under such an order and wishing to be sure that he will be safe in doing so, should seek to ascertain whether the facts on which the order was passed were sufficient to warrant it, — what is he to do ? Why he would apply to the Judge of Probate and obtain the very same information from him which he had already certified to the Governor and Council and would thus be placed in just the same situation as before. Then comes his action to vindicate his rights under his purchase, and 30 or 40 years after it he is met by the evidence of one of the other executors that he never was cited and never renounced, and by evidence to establish the fact that no security was given by bond executed by two persons as the law required. Look also at the unbusiness-like, unsatisfactory state in which the records of the Probate Court appear to have been heretofore kept, and in the matter of 12 S76 CHISHOLM MrUONALD. this very estate who can say what evidence derived from them, or from the recollection of witnesses who may now be found at this distant day of the transactions, ought to be relied on to oppose and to disprove facts, the existence of which could only then be best known when they were so certified and acted upon, and of which corroborative evidence may not now be found. I cannot but think, then, it is a sound and wholesome rule which would receive an order so made, as long as it exists, as con- clusive and umimpeachable in this way, and not liable to be questioned upon evidence of the sufficiency of which a Jury are alone to a certain extent to be the judges. Since drawing up the foregoing remarks I find that this appears also to be the governing principle upon which similar cases have been decided in the Courts of the United States. In Perkins v. Fairfield, 1 1 Mass. R. 226, the plaintiff claimed under a title from the administrator, and the defendant from one of the heirs of the deceased. The license to sell was granted upon an erroneous certificate of the Judge of Probate that the estate was insolvent. And the bond which the statu:o required to be given by the admir.istrator, had not been so given. The Court there said, that the Court of Common Pleas, under whose order the administrator had sold, had jurisdiction of the subject matter. If that jurisdiction was improperly exercised or in a manner not warranted by the evidence from the Probate Court, yet it is not to be corrected at the expense of the pur- chaser, who had a right to rely on the order of the Court as an authority emanating from a competent jurisdiction. It is too late to say that the neglect of requiring a bond from the administrator to account for the pro- ceeds of the sale is fatal tij a title derived from their authority. The same doctrine had been before held in Leverett v. Harris, 7 Mass. R. 296, in which it was said by the Court : " That the order of the Court of Common Pleas purported to bestow upon the administratrix sufficient authority to convey the demanded premises, and she complied with all the requirements of the law in the proceedings subsequent to the order of the Court and in her conveyance. The grantee purchased in reliance on the authority of a Court of competent jurisdiction. To deprive him of the property he thus acquired would be, in our opinion, to act in oppo- sition to the most established principles, and very much endanger the security of titles." With respect to the objections taken to the acts and proceedings of the executors themselves, in the sale of the land, these stand on a different footing. They are not defended by the rule of law to which I have referred : and though they may be called in question upon evidence which may, after such a lapse of time, be unsatisfactory, and the observations CinsHOLM McDOxNALD. »77 which I have already irrnile may therefore in nome measure be applicabls to them, yet they must be subject to the same chances and difficulties with respect to evidence as any and every other fact which is necessary to be established at the trial of a cause. The plaintiff can here only rely on the presumption in his favor, and then that presumption is liable to be met and overthrown accorlin^ to the maxim : stahat presumptio donee prohatiir in con! rnr 1117)1. The question will always be open for consider- ation, as in all cases of evidence, whether there has been sufficient to rebut that presuinption, and, of course, all matters tentVing to strengthen and support it will have to be taken into account. If the case had turned on this one point alone, and the jury had distinctly found the fact, that there had not been either a 30 days advertisement in the Royal Gazette or by handbills posted up as the statute requires, I am not sure that I should have felt myself justified in setting aside that finding ; but upon this I speak with some hesitation, and do not hold myself concluded from considering it anew, if the question sb t.' 1 come before us again upon just the same evidence, which may not be the case. But that point has not been expressly found by the jury ; they have given a general verdict for the defendants, it may be, it is true, upon this as well as other points, but, as it may not have been upon this, I cannot consider that question to have been settled by the verdict. The case, however, does not rest upon that point alone ; and there ure other matters and considerations arisino out of it which lead me to think that, on the whole, it should again be submitted to a jury. After the plaintiff had purchased the land, and obtained the deed of it from the executors, he took possession, at all events, of that part of it lying below the road, and has contiuued in the undisturbed and uninter- rupted possession of it ever since. Very soon after — it was the same summer — the plaintiff laid off the land above the road to the widow for her dower ; that was, itself, an act of possession of that portion of the land, and, coupled with the possession of the land below the road, was a possession of the whole land under the deed. Now, although the widow was at this time, I have no doubt, in a state of mental derangement, (though, perhaps, with some lucid intervals, and it would appear had one at this very time,) and if so unable herself to transact her affairs or attend to her rights, yet there was one present who acted as her friend, and it seems evident that her interests were not neglected, in fact the assignment was a fair and beneficial one for her. The whole transaction was then bona fide on the part of the plaintiff and the assignment of dower was good against himself. Angus, one of the defendants, and the eldest son of John McDonald, the deceased, was at this time of age. He 378 cHisHOLM V. McDonald. knew of the sale, — he had heard of it a few days hefore it took place. It was impossible that he did not know that plaintiff was the purchaser. Ho allowed him to take possession and occupy the land below the road. He was present when the land above it was assigned by the plaintiff to his mother for dower ; and though he says he never assented to it, he admits that he was looking on when they were doing it, and that he knew an agreement had been drawn up ; and he certainly did not, for he says so, interfere to prevent its completion ; nor does he appear in any way to have opposed or denied the plaintiff's right in thus dealing with the land as his own ; nor to have set up or asserted any right or claim in himself. Pretty strong recognition of itself all this of the plaintiff's right and title under his deed from the executors. But the recognition does not stop here. When the dower was set off, it was stipulated by the widow, or on her behalf, that a jog of land below the road should be taken in for her ; Angus says that the plaintiff promised his mother that he would put up the f nces and take this in. Ho was then perfectly aware of it ; and he says the next spring the plaintiff did accordingly put up the fence in this way, — thua dividing the dower lands from the plaintiff's own occupation below ; and that he (Angus) himself cropped the land for his mother for the next two years ; after which he left the province for a time, returning afterwards and living again on the same place. There was an old barn also on the place, of which, as Angus says, the plaintiff was to have the use of one half after the dower was assigned, — though, according to the evidence of Jas. Chisholm, Angus told him that that the plaintiff had allowed him to use it ; but, however, Angus him- self states that he and the plaintiff did use it together till the former went away from the Province. Angus also further admits that the plaintiff gave him permission to cut wood as far as he chose to the south of the road, that is, over all the land set apart for the dower, and to make tim- ber upon it. At later periods, it would seem that Angus had made some assertion of right and disputed to some extent the plaintiff's title to the land south of the road ; but this was during tlie life of the widow, and when the plaintiff was, by reason of the assignment of these lands to her for her dower, unable to vindicate his right, and indeed not in a situation to require any vindication of them. But such operations of the defen- dant Angua could not do away with the earlier recognition by him of the plaintiff s title. A recognition founded not merely in a tacit acquiescence or passively standing by and seeing him exercise acts of the most abso- lute ownership, but in accepting and acting under the plaintiff's authority and right over the land, and exercising himself, for his mother, the acts of ii tenimt under the plaintiff. The most clear and certain and unam- cHisHOLM I. McDonald. 379 biguous recognition of the title of the one, and the most derogatory to his own present claim that can well be imagined. The lands were subject to a mortgage, made by John McDonald in his life time, — and it was to discharge this debt, probably, that the order for sale was granted- The proceeds of the sale, that is, the plaintiff's money, which he paid for the land, was appropriated to pay off this debt, and the balance, a sum of small amount, was paid by the executors into the Court of Probate, and was subsequently paid over proportionably to the heirs. This is Angus' account of it. He says he called on Mr. Smith, the Judge of Probate, when he was going away, that is, after he had cropped the land for two years, as before stated, and asked him if he could not give some of the money of the balance left out of the sale of the property, and he was then paid 20s. Whether it was much or little was the same thing. It recognized the sale and the validity of it to the fullest extent, and it recognized too the object of the sale and the motive which caused it, i. e., the discharge of this mortgage debt and the appli- cation of the proceeds of the sale for that purpose, and in thus requiring and accepting a share in the balance of these proceeds, after that debt was discharged, there was, I think, the fullest ratification of the sale itself. After such acts as these it cannot be permitted him to dispute the legality of that sale, and at this distant day to question either the order itself or the want of a sufficient publication of it before the sale, or the title of the plaintiff under the deed from the executors made to him as the purchaser of the land. Nor can he be permitted, after such a recognition of the plaintiff's title, and an actual use of the land, an occupation indeed on behalf of his mother, a tenant in dower under that title, to set up an adverse possession in himself against the plaintiff during the continuance of her life time. Her possession once begun under the plaintiff was the possession of the plaintiff himself, and continued as long as that possession itself continued, which was till her death ter- minated it. And though she was, during all that time, in a state of men- tal derangement, yet as she was still in actual possession, and that posses- sion under the plaintiff was recognized thus fully by the defendant Anrjus, and was in fact commenced by him for her, no occupation by him subsequently coidd amount to such ar adverse possession against the plaintiff as would be a bar to an action brought by him after the ter- mination of the tenancy in dower, until which period the plaintiff wa» precluded from bringing any action of ejectment. With respect to another of the defendants, Johii McDonald, the case is by no means similar. The . vidence does not affect him in the same way. His possession of a part of the land has been long adverse to the 380 cHisHOLM V. McDonald. plaintiif, who did on one occasion, many years ago, resort to legal pro- ceedings against him for an alleged trespass, but abandoned the suit, and the adverse possession has continuously gone on ever since that time. If this defendant had limited his defence to that portion of the land alone, as he could have done, I should not have felt myself justified in disturbing the verdict in his favor. But in turning to the pleadings I find the only plea is by all the defendants jointly denying the plaintifi's right to the possession of the land claimed by him. And as this is a denial by John of the plaintiff"8 right to the land in the occupation of Angus as well as of himself, the verdict must be set aside as against him as well as Angus. DoDD, J. My first impression was in favor of retaining the verdict in this cause. I found, when looking into the case, that without giving any opinion upon the legality of the plaintifi"'s title, as derived from the exe- cutors, but assuming that title to be valid, still the plaintiff had not, in my opinion, assigned dower to the widow either in accordance with the common law or the statutes of this province, leaving the only question open as whether the defendants had recognized the assignment made by the plaintiff to the widow, and, under that assignment, gone into posses- sion of the disputed lands, and was thereby estopped from now disputing that assignment and setting up an adverse holding against the plaintiff. — This question having been submitted to the jury at the trial of the cause, and it being found in favor of the defendants, although from the first I considered the weight of evidence against them, — still I was not disposed upon this groimd alone to disturb the verdict. But after consultation with my brother Judges, and again examining the evidence, I found it much stronger in favor of the plaintiff as respects the recognition of the assignment of dower by the defendants than 1 supposed, and I now agree with the majority of the Court in thinking that the case should be sent again to », Jury, the verdict being against the weight of evidence upon the point there referred to. :ll WiLKiNS, J. This cas?, in my opinion, entirely turns, and the only difficulty in it arises on a question of the validity of the deed from the executors of John McDonald to the plaintiff, dated the 18th June, 1821, purporting to be made under the authority oi an order of the Governor and Council that passed on the preceding 28th of April. The deed re- cites due publication of the notice of sale in the Royal Gazette, as required by law. As the solution of this question, at the trial, depended on the deed itself, and the extrinsic evidence, in connection with it, adduced to cHisHOLM V. McDonald. 881 raise, or to rebut, a presumption that the conditions on which the license was granted had been performed previously to the sale, it waq submitted to the jury, and they must perhaps, from their general finding in favor of the defendants, be presumed to have found against the deed. As, how- ever, neither of the counsel expressed to the learned judge at the time a desire to ascertain from the jury their views as to whether the notice of sale had heen duly published, or the handbills duly posted up, I am per- plexed by the consideration that it is quite possible that the jury may have concluded affirmatively on these points, and yet found for the defendants, on the ground of adverse possession. Were 1 satisfied that they had ar- rived at such a conclusion on the points first adverted to, I should con- clude, on that ground alone, that their verdict ought to be set aside, being convinced that, if the deed was valid, there was no adverse possession in the case. This uncertainty alone would make me desire that this case should be brought ad alind examen, because I think that, under the evi- dence, and the rules of law governing it, the jury ought to have found that notice of the intended sale was duly published in the Gazette, and by means of handbills. Before stating my reasons for this opinion, I will shortly dispose of some objections to the plaintiff's case that were insist- ed on at the trial. . , It was objected " that the deed in question was not executed by all the executors named in the will of the testator, then living, and not having renounced their rights to execution of the will." The answer to this is, that those persons are alone named as executors in the letters testamentary who are parties to the deed, and those letters under seal of the Probate Court are, until repealed, incontrovertible on this particular point. — Per Buller, J., Allen v. Dundas, 3, T. R. 129. It was urged also, as a fundamental objection to the plaintiff's docu- mentary title, " that the bond of the executors, with two sureties, as re- quired by law, had not, before the order of sale, been filed in the registry of the Probate Court for the county in which the lands in question lie ;" and, I think we might conclude from the evidence, that such security had not in point of fact been filed. Still, I am of opinion that the plaintiff, as a purchaser under the order in question, was not bound to look to this, and that the order licensing the sale, and reciting the certificate of the Judge of Probate that security liad been given as required by law, afford- ed him a legal protection against the consequences of error or falsehood in such certificate. Had a bond, perfectly in accordance with the statute, as respects form, but exhibiting sureties that were mere men of straw, existed, it could not be contended that therefore the deed would be in- valid. Neither would the fact of sufficiency of the personalty to pay the 382 CHISHOLM i>. Mcdonald. debts, nor of sufficient real estate having been before sold, produce that legal consequence. As the Governor and Council, under the then law acted, in such cases, not merely ministerially, but exercised a discretion as to whether the circumstances of the estate were, or were not, such as rendered a sale of the real estate necessary, I should have thought, on general principles, apart from authorities, that the mere license to sell im- ported an absolute unqualified authority to sell, provided due notice of sale were given ; but I was gratified to find my opinion confirmed by a case decided in the Supreme Court of Massachusetts, when its state of legislation in the subject matter was analogous to our own, at the time o\. the sale in question. In that state, and at the time of the decision of the case referred to, jurisdiction in respect of the sale of real estate of deceased persons for payment of debts, was vested in the Court of Common Pleas, whilst here, at the time of the particular order, it was vested in the Lieutenant-Governor and the Council. The case to which I allude is Perkins v. Fairfield, 11 Mass. 227 ; and it will be found, as respects its equities, in favor of the heirs or creditors, much stronger than the one under our consideration. It is as follows : — "In this case a title under a sale by administrators, by virtue of a license from the Court of Common Pleas, was holden good against the heirs of the intestate, although the license was granted upon a certificate from the Judge of Probate, not authorized by the circumstances of the case. The administrators gave no bond, according to the statute in such case provided. Bice, for the tenant, argued — ' It is agreed on the case that the estate was not insolvent, and the license for the sale was granted upon an erro- neous and unfounded certificate of the Judge of Probate. The sale un- der which the demandant claims was made after enough had been sold to satisfy all the claims on the estate, even including the charges of adminis- tration, for which the real estate was not liable. The statute authorizing the granting of licenses in such cases requires a bond to be given by the administrators, before the sale, and the demandant, claiming under the authority of the statute, should be holden to a strict conformity to its provisions.' Per curiam. ' The order of the Court of Common Pleas under which the administrators made the sale in this case, was a license to them to make sale of all the real estate of the intestate. That court had jurisdic- tion of the subject matter. If that jurisdiction was improvidently exer- cised, or in a manner not warranted by the evidence from the Probate Court, yet it is not to be corrected at the expense of the purchaser, who _ wwf'mymvf^mv^i CHisHOLM V. McDonald. 383 has a right to rely upon the order of the court, as an authority emanating from a competent jurisdiction. It is too late to say that the neglect of requiring a bond from the administrators to account for the proceeds of the sale, is fatal to a title derived from their authority.' " The defendant's counsel also contended '* that his clients had been ad- versely in possession of the lands sought to be recovered for twenty years before action brought, and this nothwithstanding the assignment, real or pretended, valid or invalid, of these lands to the widow of John McDon- ald, deceased, as dower." If the deed was invalid, this point would not be open for discussion, because in that case the defendants are in as heirs at law, or devisees, and plaintiff has no title ; but, assuming the legality of the sale and the legal sufficiency of the deed, then, obviously the circumstances of the case ex- cluded the idea of adverse possession. In that case the plaintiff was owner of the fee in the whole estate covered by the deed, and was, as such, bound to assign dower to the widow. He did, in point of fact, as- sign to her, as dower against common right, all the land lying south of the road. For the purpose of a decision in this case, and on the assumption of a valid deed, it is immaterial whether she was competent to assent to the assignment or not, because (although her consent was essential to its complete validity) it was, as regards the plaintiff, an act done in pursu- ance of a legal duty, and for the benefit of the widow, and though void- able, not void in point of law, nor avoided in point of fact. It is not at all inconsistent with this view, that, supposing her to have been, as probably she was, non compos at the time of the assignment, that assign' inent was an act voidable by her, upon the recovery of her reason, or dur- ing her insanity, by a committee duly appointed for management of her person and estate, or by heirs or devisees shewing superior title. Until so avoided, it enured and operated for her benefit, and she had a life es- tate in the lands so assigned, --'"d she was, in contemplation of law, in of the estate of her late husband, and from the time of his decease, and her seisin was a continuance of his seisin. — Parke, 266-7-8 ; Hily. c. 11, § 25 ; Ibid. § 19, c. 12 ; c. 23, § 12 ; c. 12, § 31 and 33. During the existence of such particular estate there could be no adverse possession in respect of the lands in controversy. — Angell on Lim. p. 390, c. 30, § 8. We come back, then, to the question, ' was the sale valid, and did the deed convey a title to the plaintiff in the lands in possession of the de- fendants ?' If this may be answered affirmatively, then, as the widow is dead, and there has been no adverse possession, the verdict should have been for the plaintiff. I { m^jHUfm 384 CHISHOLM McDonald. To a solution of this question the leading facts of the case, and the dates of events and transactions, become important. < t Let me then briefly conaidtr these. John McDonnJcI, the former owner, died in 1815, seised of the estate in question ; one of liis sons was of legal ugc at the time of his father's death. On the 28th of April, 1821. an order of the governor and coun- cil passed, reciting the report of commissioners shewing issolvency of the estate, also a certificate of the Judge of Probate of security having been given according to law, and thereupon licensing sale at public auction of the land in question, by the executors, giving at least thirty days notice of intended sale in the Halifax Gazette. Tliis order would appear to have issued on the 2d May of the year above mentioned. Direct proof of pub- lication in the Gazette was not given, but it was not capable of being ad- duced from the proveil impossibility of procuring files of that paper for the year 1821. There was some slight evidence of handbills having been seen, conveying notice of the sale ; and it is in proof that Mr. Archibald, then residing in Halifax, who had been entrusted by the executors with the management of the business connected with the sale, had had the ad- vertisement published, and was paid for doing so ; that handbills, in a package, were forwarded to the executors at Pictou, by Mr. Archihald, from Halifax, or by ^fr. Smith. The sale took place at Pictou, and con- siderable publicity attended it, whilst several persons appeared as bidders, and AiKjvs McDo.iald, one of the heirs at law of the former owner, and then of age, was awaie of the sale. The estate was knocked down and sold to the plaintiff for £296, whilst the real value of it at that time was estimated by many of the witnesses at a comparatively higher rate — one person having stated that he had eftcrcd 17s. 6d. an acre for each of the 500 acres of which it was composed. There is no evidence of collusion between the executors and tlie purchaser, or of bad faith in the latter. Immediately after the sale plaintiff entered into possession of all that por- tion of the estate (the more valuable part of it) which lies north of a road that traverses it, ami has, from that time up to the commencement of the action (comprising a period of thirty-five years, during a large portion of which al! those defendants were of full age, aware of such his occupation, and yet i!(>vrr (|uestioned his right) continued in the uninterrupted enjoy- ment of thai jiovtion of the property. The remaining pait of the pur- clia.*ed estate [ 'lintiff, in the course of the year 1821, assigned to the willow of >f)'own v. Hunt, 11 Mass. Rep. 45, and in Locke v. Siuan, 13 Mass. Rep. 76, the charter parties differed a good deal from the present, for they appear to have placed the vessel under the whole entire control of (he hirer for the time specified, who contracted for her delivery up to the o^vnor on the completion of her homeward voyage, the dangers of the .leas excepted, at a certain price per month, payable on her return to her honie- v>-ard port. And this seems to have been the ground on which the out- ward and homeward voyages were considered to be distinct, and the right to recover the freight to have accrued though the vessel never returned. In the former of these cases the Court said, " the hirer is prevented from performing his conti^ict to return the vessel to the owner, and the same event which excuses him in this particular, determines the time when the freight money becomes payable, which had been before earned and become due." These cases may therefore be considered as distinguishable from those of the English courts ; but at all events we must follow and be bound by the latter. There are other American cases, however, which are quite in conformity witli these. Thus in Jilanchard v. linckinni), 1 (irccnl. Rep. 1, — where the vessel M'as cluu'tered for a voyage from Port- land to sea, and to take a cargo from on board the British brig Foiudain, and proceed with the same to a port or ports in the "West Indies, auJ. from thence to Portland, where she was to be discharged, the dangers of tlie seas excepted, at so much per ton per nijuth, payable in tliirty days after her return to Portland, it was held that the voyage out and home was one entire voj'age, and the vessel never having returned to Portland no freight was due. T do not consider the additional agreement entered into between the parties at Montreal, as set out in the ca:>e, to affect the construction of the charter party, or the decision upon it at which I have arrived. That agreement amounts only to a substitution of Harbor Grace as the port to LEVATTE V. SALTER & TWINING. 39. > which the vessel vas to sail from Montreal, instead of St. John's, as was specified in the cliartcr party ; and the hills of lading for tlie cargo were expressly to be signed by the master without prejudice to the charter party. At the argument before us some question was raised as to the right of tlie defendants to recover back the advances paid by them to the plaintiff in Canada and Newfoundland, upon which the case of J [an aficJiI, et. al. v. 31aillantJ, 4 B. & A. 582, was relied on by the defendants. But on re- ferring to the special case, that question docs not appear to have been submitted to our judgment. The only question of this kind there raised is as to the sum of <£29 9s. 5d. which was advanced in New York to the defendant, where he and his crew are stated to have been carried after they were taken from tlie wreck of the vessel. The right of the defend- ants to recover back this sum which wds clearly ? loan, and not a pay- ment on account of freight, follows as a necessary consequence from the judgment which I have expressed upon the main question, and, indeed, is so considered in the case submitted to us ; and for that sum I am of opinion that the defendants are entitled to judgment. In a case like this, which it must be admitted is not without its diffi- culties, and in which, therefore, I cannot but feci that my own opinion may be erroneous, particularly as I know it to be opposed to that of one of my brothers, I regret that the argument should not have taken place before the full Bench. It will now be decided by two only of the Judges, constituting a minority of the whole Court, when, perhaps, if it had been heard by all, a different result would have been the case. It would on this account have been more satisfactory to me if the proposal, which was made to have this case argued once before all the Judges, had been ac- cecded to. But as the counsel of both parties have declined tiiis, I have only now to state my own views, and the conclusion at whicli I have ar- rived, that the defendants are entitled to the judgment of the Court for the aii.ount which I have mentioned. Desbarres, J. I have looked into the authorities cited in this case, both I'higlish and American, and I have come to the conclusion tliat this was an entire voyage. It was the intention of the parties, when the agreement was made, that it should be one voyage. The rates fixed upon were to be paid here, when that voyage liad terminated. I WiLKiTTS, J. After a careful examination of the authorities cited at tl>e argument of this case, I have come to the conclusion that the contract refers to a series of distinct voyages, on all of which, excepting the last, 39G LEVATTE V. SALTER & TWINIXG. t 'i on whifli the vessel wiis wrecked, freight was, or might be assumed to have been cariunl, and was designed to be paid ; and that, although the charter party in terms speaks of but one voyage, and although the hire relatively to the quantities «- weigiits of the various articles which formed the cargoes is, in terms, made payible in an event which has not hap- pened, still, according to the true meaning of the contract, the language of the defendant's covenant, stipulating that they will pay the hire " on return of the vessel to Halifax," must be taken to have been used, not with the intention of making the particular event a condition precedent to the plaintiff's right to recover, but as meant merely to fix the time of payment. Such an interpretation of the contract is most agreeable to natural equity, because the freight on what I have assumed to be independent voyages has actually been earned by the ship, in respect of the convey- ance in her of tlie different cargoes to their respective ports of destination, as in the case specified. I am not unmindful that it is my duty to expound, and not to make, a contract ; aud that, whatever the law might imply in the absence of an express agreement, I am bound to construe the language of the parties according to their intentions gathered from that language, interpreted in the light of judicial precedents. But these last, as 1 understand them, support the view that I have taken of this particular case. It leaves intact the principles deduced from the cases by Mr. Addison, who says : " in all cases of doubtful construction, freight is not held to be due until earned by due performance of the work for which it is to be paid ;" and u'^ain, " where the charter party merely amounts to a contract to convey goods to a particular destination, the fulfilment of the contract is a con- ditiu precedent." Had the adventure contemplated by the parties, thou'di made up of several voyages, pointed to one final destination, designed to complete that adventure, and yield its fruits, then, however honest and carnci't the endeavors of the plaintiff may have been to per- form his contract, the freight could nt be held to be earned until the ship arrived at that ultimate destination, — for such would not merely have been the understanding of the parties, but it would have been a contract founded in reason and convenience. This last mentioned feature marks the case of Smith v. Wilson (8 East. R. 437), in which no freight was earned, and in which it was held that the freight qua freight was only covenanted to be paid by the freighter on the arrival and discharge of the ship at her destined port in Gioat Britain, and that, therefore, such arri- val and discharge constituted conditions precedent to the owner's right to recover. This case was cited by Mr. 2'wininfj, but, though the language li LEVATTE V. SALTER & TWINING. 307 of the cluirter party in it is, in some respects, like tluvt in this case, it is distinguishable from the latter in two important particulars : first, that in the former, freight ex noinino, in its strict sense, was souglit to be reco- vered ; and, secondly, that in it the ship performed no voyage, and con- sequently earned no freight. So, in the old case of Cooke v. Jrni/in\ (7 T. R. 381,) the voyage, on which the question of right to recover freight jiro rata arose, was never performed, and therefore the freight was never earned. In ScoU v. Llhhtj (2 Johns. 33G), the freight was held not re- coverable, because the vessel, being chartered from New York to St. Domingo, and back again to New York, and an entire sum agreed to be if* paid for the whole voyage in ten days after the arrival of the ship at New York, returned to that port without having entered the port of St. Do- mingo, in consequence of a blockade, and therefore never performed the outward voyage, which formed the first subject matter of the contract. Such, too, is the principle involved in the decision of Crazier v. Siirit/i, (1 M. & G. 407). These cases establish negatively that freight is not recoverable in respect of a contemplated voyage not performed, where the payment of it is made to depend on the actual event of such performance. Rut it has been strongly urged by defendants' coun-sel that, by the express language of the policy, the freight or hire was made payable " on the return of the vessel to Halifax." It does not say, " and on the discharge of her cargo there," as in Crazier v. Sinitk ; nor that " the freight was to become due on her arrival at the last port of destination," as in the old case of Ihjrne et. al, V. Paftrmon, cited by Ahhot. The language used in this charter party is, indeed, not at all stronger, in the respect under consideration, than that which occurs in Mnekrell v. Siiiioiid et. al. (2 Ct. Rep. GG6), where the hire held to be payable in respect of the outward voyage alone, which was completed, was made, by the terms of the contract, to depend on the reporting of the .ship inwards at the custom house in her final port of destination ; nor stronger than that which distinguishes the American case of Locke v. Siran (13 Mass. 70), where the freight, held recoverable in respect of tlic outward voyage, was by tlic contract made payable in thirty days after the return of the ship to Roston, to which, in fact, in consequence of capture, she never returned. Such, also, precisely was the provision respecting payment of freight in Brov:n v. llmtt et. al., (11 Mass. 47), in both of which cases the Court decided that the phrases so used relatively to the freight, merely limited the time of payment of it, and did not operate as conditions precedent. Mr. TicinliKj also contended that the adventure contemplated must be rcgarJed as one voyage, and not as several distinct voyages. The very 1^' I 398 LEVATTK V. SALTER & TWINING. first case that -led mc to doubt the correctness of this view of the learned counsel was the very last one cited by himself. I allude to Crazier v. Sinilh, to which I have already adverted. The language of the policy in that case, so far as it respects the circumstances and order of the contem- plated voyages, is, " that the vessel should ship goods for Kingston, or any other port in Jamaica, and, having discharged the same, should receive on board a cargo from thence, or from some port on the Spanish Main, if required, and deliver the same at a port in the United Kingdom ;" and this language is not distinguishable from that which is used in this par- ticular case, — and it might with as much reason have been urged in the former that but one voyage was contemplated, as the same argument has been used in the latter ; and yet Ch.-Justicc Tindall regarded the former as indisputably a case where an outward voyage and a homeward voyage, as distinct from each other, were understood by the contracting parties. Even in the old case of Mucln-eJlw Siinond et. ah, the pliraso on which Lord Muiifijicld principally founded his judgment was " outward voyage" — not voi/nfics, in the plural number, though he construed it in a plural sense. This is, at least, an authority that relieves us from the necessity of adhering to the strictness of the singular number, as it is contended we ought to do in this particular case. In Locke v. Swann, the charter party was for a voyage from Boston to the coast of Africa, and back to the United States, where the ship was to be discharged, at a certain rate per month, and at that rate for such less time as the vessel should be con- tinued in the particular service. She touchel and traded at several places on tlie coast, and in returning to Boston was captured. It was held tliat hire was due from the inception of the Vt,yage until the expira- tion of half the time spent at the last place visited by her on the coast for the purpose of trade. The Court thought that by the marine law the contract was divisible into two voyages, in respect of tlie earnings of the hirer, the first voj'agc being considered to end at Prince's Island, where the vessel took in the last cargo and departed homewards. In accordance with this case is the decision of the Supreme Court of Massachusetts in Broion v. IfiDit et. nJ., where the hire of the vessel was for a certain price per ton on a voyage from Boston to Savannah, thence to the West Indies, and back to a port in the United States, and thence to Boston. The vessel, having i' ormed the first voyage, was captured on her return to Boston, and th. re was held to be due to her discharge of her cargo at the port from wii; ' she last sailed. This was considered by the Court as a marine adventure consisting of several distinct voyages, in each of which freight was earned ; and it was said that expressions must be very strong that would avoid presumptions thence arising, that the owner was to be paid in respect of the voyages that had been performed. ^ LEVATTE V. SALTER dc TWINING. 399 On the points in controversy in this case I have not perceived any discrepancy between the English and the United States decisions ; and on the combined authority of both I think that the plaintiff is entitled, under this charter party, to recover freight on all the goods carried by the ship for the defendants, as stated in the special case, previously to the time of the departure of the Clyde from St. John's, Newfoundland, on that last voyage, in the cause of which she perished at sea. 15 i I CASES ARGUED AND DETERMINED IN TUQ SUPREME COURT t OP TUB PROVINCE OF NOVA SCOTIA. MICHAELMAS TERM — 1858 WALSH V. HART. Where the attorney of the assignor was the assignee held that action might be main- tained in the name of the assignor. The assignee may bring suit in the name of the assignor. This was an action brought by plaintiff against defendant for goods sold and delivered. It appeared that previous to action brought the ac- counts of the plaintiff were assigned to P. Lynch, Esq., the attorney in this action, for the benefit of his creditors. At the trial defendant's counsel moved for a nonsuit, on the ground that plaintiff could not main- tain this action. Verdict for plaintiff, subject to the opinion of the court. The Attorney General and J. W, Johnston, Jr., cited Vict. c. 23, § 48. Hallibueton, C. J. The statute never intended to take away the right of the assignor to sue with the consent of the assignee. I 'i Bliss, J. The attorney of the plaintiff is the assignee, and it is a fair inference that the assignment has been satisfied. The legislature never meant to take away the right of the assignee to sue in the name of the assignor. The other Judges concurring, the judgment was ordered to be entered for the plaintiff. DELANY V. HALL. 401 DELANEY r. HALL. , A promissory noto made in this Province, and payable in St. John, N. 6., is a foreign bill. When the notice of dishonor does not state that a foreign bill has been protested, the indorser will not be liable. This was an action on a note of hand made by A. B. Kldd in this Province, to defendant also in this Province, but made payable at the office of T. W. Daniel Hoy, at St. John, New Brunswick. It was en- dorsed by the defendant to Delaney. The defendant pleaded no notice of dishonor. Verdict was taken for the plaintiff, subject to the opinion of the court. J. li. Smith for defendant. This was a foreign bill, and there was no statement in the notice of dishonor of its having been protested for non- payment. By R. Stat. cap. 81, the damages and interest are to be calcu- lated from the date of the protest. King v. Walker, 1 W. Black, 286 ; 2 B. & Ad. 478 ; Story on Bills of Exchange, 28, 195, 299 ; 2 T. R. 713 ; 3 Campb. 334 ; 5 T. R. 239 ; Dougl. 683 n (n) ; 2 Beav. 283 ; 6 Moore, 321 ; 7 East. 359. McGully for plaintiff. The plea does not state that there was no pro- test, but that there was no notice of dishonor. This was not a foreign bill of ei.fhange, but a note of hand made between two persons in this Province, and payable in New Brunswick. — 2 B. dc Ad. 478 ; 4 Esp. 48 ; Story on Bills, § 2. Silas Morse. If the notice be not sufficient it is sufficient to sustain the plea. The notice must show that the bill has been protested. For- merly it was necessary that a copy of the protest should be sent, but that is not so now, yet the fact must be stated. — 4 Ad. & Ell. 870 ; Smith, Merc. Law, 327 ; 1 Q. B. 43. C. A. V. HALiiiBTTKTON, C. J. The plea states that no due notice of dishonor has been given. A due notice includes the statement of a protest having been made. No such notice having been given, I think the indorser is not liable. Bliss, J. The case of 1 Q. B. 43, meets this case. This was a foreign bill, and a protest was therefore necessary. The case of 4 Ad. & Ell. 470, shows that a copy of the protest need not be sent ; but the indorser is still entitled to a no- tice of the protest, which in this case he did not get. The plaintiff can- not therefore recover. • ^i The other Judges concurring, judgment of nonsuit was ordered to be entered. < 111 402 TOBIN V. DUNN. I m- i% - i; Mi ). I'l '4s ■ ■'^"» I i ■1 11 TOBIN V. DUNN. Where a notice for the examination of a witness de bene este at 7 o'clock p. m., was left at office of oppoi^ite attorney shortly after 4 o'clock in the afternoon of the previous day, it was held Huflicicnt. When no replicntion had been put in to a plea of set-off, and one had been tendered at the trial, held that Judge ought to have reoeivei'otmcnt hook of a townsliip, though referring to a writ of par- tition fiml plims, purpt iling on their fsico to be co]nes, come out of the proper custodj, iiiul li;r.e for a long pcvioil of time been recognized by the proprietors of the township lis nnui.incnty of tlioir title, tlicy will be receivable as evidence, if pro'.>f be adduced tiiat sciircli has been made for the originals, which cannot be found. Tills was an action of trespass. Verdict for plaintiff. Rule 7iini to set aside that verdict. In 17G1 there was a grant to several persons of sixty-five "hares in the township of Falmouth. One and a half rights were granted to D. Bftndall, and I). Iiandall conveyed two rights to J. F. W. DesBmrcs, in 1767 : those rights were specified as containing fiirm lots Nos. 67 and 68. It was sought to put in evidence an allotment book, which had the fol- lowing endorsement : — " A list of the Grantees in the Township of Fal- mouth, with their several lots, as stated by writ of partition." The hrailing of the first page was as follows : — " A list of the Grantees SONGSTER <.s. PAVZANT, -10 'J in tlio Township of Falmouth, with number and contents of the respect- i%'e lots drawn by, or allotted to them, in the several divisions agreed on by the proprietors 27th October, 1772." There were also two plana, which, on their face, purported to bo true copies, signed by Oliver Lymon, Deputy Surveyor : one of them was dated 1807, the other bore no date. It appeared that each right had a farm lot containing fifty-eight acres, and 1). llamhtJl had allotted to him by the allotment book farm lot No. G8, and half of fann lot No. 58 — a back lot — containing about four hundred acres. Farm lot No. 68, which had been conveyed by D. Itandah to J. F. W. DfuBni-ren, had lot No. 31 of the four hundred acre lots, annexed to it by the allotment book. J. F, W. Desliarres, in 1767, obtained a grant from the crow:? of four shares in the same township. /. F. IV. DcsBarrcn conveyed five anu one-half rights — "now in '.'vx possession" — to Mart/ Camion. Mnrtj Cannon con- veyed in lH(Hl ; ^ •■ . Sonijstcr, through whom plaintiff claims, and in that deed specnied farm lot No, 68, with its appurtenances. The lot on whici the trespass was asserted to be committed was lot No. 31. There appeared to be no means of showing the identity of tlie lot, except by a reference to the plans. The allotment book and tlicse plans were those by which, for many years, all the surveys in the township had been made, and were in the office of the Clerk of the Peace at Windsor. J. W. Ellchif. By reference to the allotment book it appears that there was a writ of partition ; and no search appears to have been made for that writ, or for the plans which were in all probability annexed to it. [Bliss, J. Will not the allotment book come in under the rules relative to old terriers ?] Flven if that be s j the plans cannot, for they purport to be copies, and the book is of .;o msc to the plaintiff without these plans. [Bliss, J. We certainly ' .iv> •V'piently rejected plans purporting to be copies, though coming oi. v ^^ .' irveyor General's office, and signed by the grandfather of the last Sur>. '■\'i ^jreneral,] [W'ilkins, J. The book is in the form prescribed by t;.j act of 1767. The chief difficulty, I think, will arise from there having been no search for the writ.] Attorney General. In the prosecution against Hendry old plans out of the Surveyor General's office were received. [Bliss, J. They were iio'^ copies, and were received on the ground that they were terriers.] These plans with the allotment book, have been for a very long period of time in th'-j office of the Clei'? and been recognized by all the proprietors of the township. They a e 'b jse by v hich all the surveys are made, and by which ;!! e proprietors , • •..,.; '.ownship now hold their lands. MeLiidbj. No doubt the general principles enunciated by counsel for defi.".id lut ara correct; but to these there arc a class of exceptions, and this forr>-^ one of them. In England plans referring to parishes and ma- uori iUv receivable — Bull. N. P. 228 a. ; and ropi(.'H nf rccor'Is are r'vciv- ". 'I ir n m i 410 SUTHERLAND vs. WHIDDEN. able, although they were not sworn to oe true copies. — 1 Mod. 117 ; Salk. 285 ; 1 Ventr. 2o7 ; Gibb. 78 ; 1 Ld. Ray, 734. The person making the copies was a deputy surveyor. J. W. Ritchie.. There is no proof of the loss of the original plan. It ought to have been returned with the writ of partition — 7 & 8 Geo. 3, c. 2. The acts of 1856, relative to copies of plans of the Township of Ons- low, shew that the law is against their reception. There is nothing in the evidence showing that Oliccr Lyman was a deputy surveyor ; nor that if he were that he had any authority to make a copy, so as to give that copy authenticity. It is not sufficient to give a copy authenticity that the person making it had the custody of the original. There is a great dis- tinction between documents accompanying a possossion, and indicating the boundaries of that possession, and documents av;.:' r -e to be used for the purpose of showing where the land is situate.— p. 2 ; 1 Peak. N. r. 18 ; rollard v. Scott. C. A. V. WiLKiNS, J. We are of opinion that there ought to be a new trial in this case. There was a fundamental defect in the plaintiff not having given proof of a search having been made in the ancient depositories, where it was to be anticipated the original documents were to be found. If that difficulty could have been got over, the papers would have been, we think, sufficient. We think that in cases similar to this, where there is every reason to believe a search would not lead to the production of the original papers, that the Court should be allowed to receive affidavits of the fact after trial. Bliss, J. We have every reason to believe that even if a search had been made it would have proved ineffective ; and if no original had then been discovered, we think that these papers, coming out of the proper custody, and long acted upon by all the proprietors, would have been suf- ficient to enable us to determine that they were genuine, and properly au- thenticated copies. II.VI.LIBUIITOX, C. J. want of a search. We think that the case was only faulty from the S-'i I SUTHERLAND vs. WHIDDEN. A Sheriff's deed prima facie conveys the title of the defendant ; and even if a por- tion of tlie proceedings in tl\e suit prior to tiie deed be given in evidence, it will not compel the party to prove the wliole proceedings to have been regular. It is nut necessary that there should be an endorsement on the writ of execution of the mode in whicli it is to be executed. This was an action of ejectment. There was a special verdict, which was to be entered up for nlaintifl" or defendant, as the Court should de- termine. SUTHERLAND vs. WHIDDKX. 411 John Snfhniand, the plaintiff, left the Province in 18;?8, havinj; aj)- pointcd //. MrDounId his agent. He returned in 1812, and left again in the same year, only returning in I800. He had been the owner of the land in question. In 1812 he gf.ve a confession of judgment to ,S'. liln- neij for £210. //. MrDonald obtained an assignment of that judgment. In 18.52 a pluries execution was sued out, and under that execution the Sheriff of the County sold the lands to TI. McDonald. In 1846 H. McDonald madn an agreement to sell the lands, and defendant entered into possession under that agreement. J. W. E'drhie. The sheriff's deed affords presumptive evidence of the title of plaintiff in the land having been conveyed to H. McDonald. — Rev. Stat. cap. 118, § 11. C. Harrington. If defendant had contented himself with producing the Sheriff's deed, then it would have afforded presumptive evidence ; but ho went further, and produced a pluries execution ; he was then bound to go on and show the regularity of all his other proceedings. [J. W. Eitchle. The execution was produced by plaintiff and not by the defendant.] That is of no consequence. [Bliss, J. The giving of an execution in evidence, which is consistent with the regularity of the pro- ceedings, will not destroy the operation of the deed. If a party, after having established a prima facie case by his deed, chooses to go on and prove his execution to be regular, surely that cannot hurt his case. But it would lead to injustice, if the other party here alluded to put in evi- dence a part of the proceedings, and then be able to call on him to show that every portion of those proceedings have been regular.] The writ of execution contains no endorsement authorizing the Sheriff to sell the lands. J. It. Smith. Such an endorsement was required by the act of 1841, cap. 49, § 2, and the Revised Statutes, though more loosely Morded, will bear the same construction. [Bliss, J. I suppose a person, after hav- ing sent an execution to a distant county, should discover that there were lands there on which it might be levied, did the Legislature mean that he should be obliged to obtain the writ from the Sheriff to make an en- dorsement on it ? [DoDD, J. The Legislature meant to give the party suing out the execution the right to direct in what m.anner he should have it executed.] [Wilkins, J. If it it were imperative upon the party to make a special endorsement on the writ, it might be very prejudicial to his interests.] It appears that H. McDonald was the agent of plaintiff, and while so acting obtained the assignment of this judgment, directed the levy to be made and purchased the land, and there ought at all events to be a new trial. [/. W. Ritchie. That point was not raised at the trial, and there is an agi'eement between the parties that judgment shall be entered up, for one or other of them on the case as submitted.] 'M 412 FMXKKTY r,s. THE C^OrXTV OF HALIFAX. IIai.mhurton, V. J., DoDi) and Wii.kins, J. Wc think there ought to he a new trial, to see if it be the fact that the defendant has, wliilst acting as agent of the plaintiff, taken out execution against his lands and purchased them himself. IJi.iss and 1)i;s1Jahui;s, J. Dissi-ntiiig. lENERTY lis. THE COUNTY OF HALIFAX. i Where a pivrty Imviiip a parol liccnao to cut trees, appealc*! from the appraisement miule uiuler tlio act L'O Vic. cup. lo, to autiiori/o assesismciits for Ujiilwsiy ilamap;of<, ami a jury on that a])poal assesseil tlaiuaj^os on a wron;^ principle, held tliat the court would set aside tlic verdict on the ground of excessive damajfcs havinj); been given. Tins was a rule iiini to set aside the verdict of the jury for excessive damages. Winkicoiih Fciicrfi/, the plaintiff, had a saw-mill situate on lot No. 18, near the line of Railway. He claimed £400 for trees taken by the Com- missioners, and for six hundred tons of blue stone. By the evidence of Wellington Fenorti/, it appeared that the plaintiff was not the owner of the lots on which the trees were cut, and that he had only a verbal agree- ment with Wellington Fenerty, himself a lessee for five years, giving him liberty to cut the trees on a portion of the lots. The first appraisement made under act 20 Vic. cap. 13, § 7, by the Sheriff 's jury, had given him nothing. From that appraisement there was an appeal- and the jury be- fore the Judge gave £150. Nepean '^' . ' % in support of rule nisi. The Com-t have power to set aside a verdict for excessive damages — 1 T. R. 277 ; 7 T. R. 529 ; Taunt. 277. [DoiiD, J. There is no doubt of the power of the Court in ordi- nary cases, but this is a special assessment under a statute.] It was not the intention of the Legislature to give damages for injury done to the possession. — Act 1857, cap. 13, § 7. The proprietors of the land ought to have come before the jury and made their claim. This was a mere verbal agreement, which, as relating to land, was void by the Rev. Stat. cap. 121, § 1, and the jury have in such a case a right to enquire into the defendant's title.— 25 Eng. R. 37 ; 31 ib. 249. J. W. Ititehic and McGully. It is not necessary that the person should be the owner of the land, in order that he may sustain damage and claim for it under the present statute. Suppose the whole value of the land consisted of the trees upon it, and the damage complained of was the taking away those trees, could not the person who had purchased those trees from the owner of the soil maintain a claim ? Now a license to cut trees may be verbally given, and the person entitled to cut those trees has sustained sufficient damage to maintain this claim. [Bi.iss, J. That TKNERTY o. THE COUiNTY OF HALIFAX. 4i:J Mould set nside the Statute of Frauds.] Thi.s was an appeal from a for- mer jury, and there is no power piivcn by the statute giving tliat appeal to enable the Court to set aside their verdict. [Bi-iss, J. Does the act make that verdict final ?] McCnlly. The objection to the evidence comes too late now; it ought to have been taken at the trial before it went to the jury. [Bliss, J. They may show that the evidence does not shew the injury.] Tliis is like an action of trespass against a third person : if plaintiff can show he is in possession, he is entitled to recover damages. [J?i,iss, J. This is rather more like an action for interfering with the cutting of the trees.] Halmbukton, C. J. It is essential to the administration of justice that we should have the power of setting aside the verdict of juries, and I think that this is i case in which that power should be exercised. Bliss, J. If juries knew that the Court had not the power to set aside their verdicts, they wovdd in many cases be extravagant. The ap- pellant does not apply here as a plaintiff in an action of trespass. His position is that of a party bringing an action for being prevented from cutting trees. He has recovered for damage to a right supposed to exist, but which the evidence does not sustain. If the reasoning of appellant's counsel be right, there might be three actions for the same act : one by this appelhvnt, a second by Wellington Fencrty, and a third by the owner of the land, and the trees would be thrice paid for. Dor/1), J. The appellant has got damages for that to which it is proved he has no right. It is necessary and essential to the administra- tion of justice that we should have the power to review the verdicts of juries. DKsBAnRES, J. I thought at the time of the trial that the verdict was enormously high. In some of the other cases I thouglit they went quite far enough, but this one was monstrous. If the Court had no power of reviewing verdicts, there would be no knowing what mischief might be done. WiLKiNS, J. The statute docs not take away, by any express words, the power inlierent in the Court of setting aside verdicts. And unless there be a provision of that nature in the act, I think we have the power to set aside this verdict, and this is a case in which we ought to exer- cise it. I i 414 SKJ'ILV vs. ITllDV. SEELY vs. PUR])Y. Wlicii the jiliiintiff was surprised by tlie defyndant'H denial on the defence of liis fij?-. nature to an n|;reeiiient and settlement, proved by the plaintitf to liavo been Hi^'iied liy defeiidant, but subse(|uently lost ; und a witness for tJie plaintitt", after the trial, in- fornietl the plaintiH" that he had seen the aiireenient and settlement with tlie signature of tiic defendant, and made an affidavit tw tiiat eflect, held that it was sufficient ground for a new trial. , When a rule nisi for a new trial is granted on affidavits, the opposite side is not bound to file ids affidavits in reply beftire producing and reading them on the argu- ment. This was an action for the foreclosure of a mortp;agc made by the de- fendant and wife to tlie plaintiff, and dated 26th October, 1852. To this there was a plea of payment into court as to £78 5s., and as to balance a set-off. At the trial the plaintiff stated, that being the owner of a mill at Weymouth, he had sold half to Mnrlin and defendant for the sum of £300 N. B. currency, and £50 N. S. currency, by an agreement dated August, 1851, in which Martin and defendant agreed to pay as follows, viz : — For £50 N. S. currency to build a good tight and sufficient dam, and a sluice to be made therein if required ; and the £300 payable by instalments of £50, to be secured on the property by bond and mortgage. That in August, 1852, plaintiff having contracted to sell J. K. ^Fayo the mill, re-purchased their share from the defendant and Martin for £165, and that the agreement under which this was done was mislaid or lost by plaintiff. That the defendant, who was to build the dam, did not finish it, and the plaintiff had to deduct £50 from the price of the mill in con- sequence, and that it was finally agreed between plaintiff and defendant that defendant was to deduct £25 out of his share of tlie £165. That plaintiff and defendant finally settled respecting the mill, and that on the back of the agreement so mislaid was endorsed " settled and satisfied in full," and this endorsement was signed by the defendant. That defend- ant at the trial was examined, and denied that he and Martin had entered into any agreement for the re-sale of their share of the mill property for £165 ; that he never had any settlement with the plaintiff, and never signed his name on the back of any agreement under the words " settled and satisfied in full," or words of similar import. There was a verdict for £25, and a rule nisi was subsequ'ntly granted to set it aside on the ground of a surprise. J. W. Bitchie, in support of the rule. The plaintiff was taken by surprise at the trial. The defendant denied everything touching the sec- ond agreement, and the settlement thereon. After the trial Sterns Jones, one of the plaintiff's witnesses, informed him that he had seen the agree- ment, with the endorsement as stated by him, on it. On this fact com- ing to the plaintiff's knowledge, he obtained an affidavit of Steriis Jones, and made an affidavit himself that he was not aware that Sterns Jones SKKLY IS. rURDY. 415 knew of the existence of the agreement, and it was on these affidavits that the rule was grounded. Alexander James produced an affidavit from defendant. [_Il!(rhie ob- jects to its being read, it not having been filed on the Tuesday before the term.] The universal rule is to produce affidavits in answer when cause is to be shewn ; tliere is no rule requiring them to be on file before they arc read. [Hr.iss, J. 1 think the affidavit can be read. I do not know of any rule making this an exception to the general one.] Applications of this kind are viewed with extreme jealousy by Courts. — 9 Price, 89 ; 4 Q. B. 2G0; 2 Chitty K. 278; 7 C. B. 456; 4 Eng. 11. 420. SUwh Ji»ie!i was a witness in the case, and ouglit to have been interrogated on the point at tlie trial. J. \V. IVitchie. It is true that the witness was produced and sworn at the trial, but it was simply to prove execution of the mortgage. The ])laintiff liad no means of knowing, and could not anticipate, that defend- ant woidd deny the execution of tlie agreement. Hallibuuton, ('. J. I think tlierc ought to be a new trial in this case. Bliss, J. I think that this is a cuse in which a party has been sur- prised on a material point by the evidence given by tlic defendant in the cause. In applications of this nature the Court will look narrowly to see tJiat the surprise is from evidence not only on a material point, bnt on a point to whicli tlie attention of the party com])laining Avas not drawn, and wliicli lie had no notice that he was to meet ; and further, that a very necessary piece of testimony on tliat point can be supplied. Tlic fact of tlie witness wlio is to funiisli tliis testimony having been examined at the trial is rather against the plaintiff; but it is shewn that the plaintiff did not know until after llic trial tliat he was aware of the knowledge of the witness respecting the agreement. We must take care to provide against the injustice tliat may be done by the reckless swearing of a party in his own cause, by allowing the opposite side to shew that he has sworn falsely. AViLKiNS, J. We ought not to assist a party or his counsel when guilty of a gross negligence, but there is nothing of that kind in this ease. Rule made absolute. The costs of both trials, and of the argument, fo abide the final event. 17 416 HADLY vs. SHERMAN, vt. al IIADI.Y vs. SHERMAN, et. al. WliPii in ejectment the ilefi'iidant hy Iiis plea purports to defend for a part of the liuul claimed in tiie plaintiff 'h writ, but in fact dewcribeH u different lot, tiie plaintiff will be entitletl to jud>;inent. ■Per Bi.isH, J. in McMiistcrs vs. Graham. If such a plea be put in witli the G and i'lKO. The first lot did not contain the quan- tity of land stated at the sale. After havin<^ signed the agreement to purchase, and jtaid the deposit, the defendant declined to complete his agreement and pay the residue. The jury gave a verdict for the price of the last lot. 'J'lir Ailoniiy Qcneral and J. W. Johnstnv, Jr., moved for a new trial, on the ground tiiat the plaintiff had not jjroved a good title — Sugd. on Yen. & V. .'500; .'} Stark on lOvid. 1190; 1 Taunt. 430; East. 555; and that the jury coidd oidy give the plaintiff the amount of damage which he could prove, and that no special damage was shewn at the trial. —Newt, on Contr. 91 ; 1 Madd. Ch. P. 363 ; 3 Stark on Evid. 1192; 6 B. & C. 31; ib. 410. ,f. W. ItlUhic. Tliis is nothing to prevent the vendor from recovering the price for which the land was sold. — 4 B. & Ad. 77 ; 1 Stark, 426 ; 2 Myl. & K. 724. There was no objection to the title taken at the trial, but it appeared conceded that the title was good, and the plaintiff did not deem it ncce.' '-y to go on. ' i Halmiiv^.- ...<,.C. J. There is nothing in the objection urged by de- fendant's counsel. This is an action for lands bargained and sold, and the damages were rightly estimated. Br.iss, J. I do not see any distinction between the case of land bar- gained and sold and goods. The measure of damage is in both cases, I think, the same — the price for which the article was sold. — 1 C. M. & 11. 259. There is no doubt that the plaintiff ought to be able to show a good title ; but in this case the plaintiff was called and stated that he had a good title, and nothing was asked or shewn by the defendant to im- peach his title. ii ! DoDD, J. As the Court could stay the issue of the execution, I do not see how any practical injustice can be done the defendant. DksBarkks, J. It appears that a deed had been prepared and handed to the defendant's attorney that he might examine the title, and shortly after the objection is made to the quantity of land, and nothing said about the title ; I think that very important, as shewing there is nothing wrong about it. At the trial the defendant might have questioned the plaintiff as to his title, but does not do so. He ought not therefore, now, after having apparently acquiesced in the goodness of the title, be al- lowed to object that sufficient evidence thereof was not produced. l! ii 420 MULLALLY vs. Dn.LON. WiLKiNS, J. It is no doubt true that to sustain such an action a good title must be proved. But in this case the phiintiff stated that he had a good title, and a deed to him was put in and read, and the defendant only raises this objection on a motion for nonsuit, after tlie plaintiff's case lias been gone through. Having abunilant opjiortunity of shewing any de- fect, he soems till then tacitly to acquiesce in the goodness of the title. Rule discharged. MAYETTK, et. al. vs. IIUBWIT. TVliorc tlio lessor of the plaintiff wa.s out of possession at tlic time the deed was given by him, the hiiul being held adversely by another person, held that the deed conveyed no title. Tins was an action of ejectment brought In 1849. At the trial it ap- peared that 3Io!/ Cn. liy 9()^ days at 4s. per day 19 G £0 4 9 ii' '1 E The learned Judge at the trial thought that defendant by his pleas ad- mitted thn plaintiff's claim us set out in liis ])articidars ; aiul having called on defendant to sliow payment, defendant's counsel proposed to prove set-off of £19 10s. 9d., which having been admitted by plaintiff 's counsel, the Judge ordered a verdict to be entered for plaintiff for £5 3s. A rule visl was granted to set aside tliat verdict for misdirection. TIkiiiihou for defendant. ]5y the llngiish practice the plea of payment into court does not admit the amount claimed in tlie particulars ; it ad- mits no more tlian tliat defendant is indebted in some cause of action within the description in the declaration to the extent of the money paid into court — ■') Dowl. V. C. '1.'58. There the particulars arc not considered as having any effect on the plcadings--2 M. Ot W. 758 ; S M. &, W. 382 ; 4 U. S:, Ad. 073. The plea of set-olf does not -idmlt the amo'.mt claimed by? the jdaintiff — 1 M. ».^ Uob. 505. By our Practice Act the plaintiff is allowed to sign judgment for the amount of the ])articulars endorsed on his writ, where there ..as been no appearanc, — P. Act, § 18. It is only in case of non-a])pearanee of the defendant that our act gives the partic- ulars a different effect from what they have under the English prucHct. Wallace. The defeudunt miglit have pleaded the general issue, or pay- 422 WARD vs. McDonald. mcnt of £19 10s. 9d., and that no more was due. The plea of sct-ofl' is a special plea, it must therefore admit the phiintiff 's claim. The plea cf paymcut differs in its effect from that of payment Into court. — 4 Dowl. P. C. 10. Halxihuhton, C. J. The rule for a new trial must be made absolute. The plaintiff hac". full notice by the particulars of the set-off of the de- fence to his action- Bliss, J. I think the English practice the sound one. Our Practice Act limits the operation of the particulars as an admission of tlic amount of the plaintiff's claim to those cases wlicrc there is no appearance. Kere the defendant has pleaded that plaintiff is indebted to him in a larger amount, and states that sum in his particulars of set-off. The plaintiff's particulars state tliat he was entitled to five shillings per day : the defendant gives him credit for the work at four shillings per day, which places plaintiff in defendants debt. DoDD, J. The facilities for a plaintiff obtaining a judgment is quite as great as it ought to be. When tlie defendant does not appear tlie plaintiff is entitled to enter uj) judgment for the amount specified in the particulars endorsed on his writ, without giving any proof of tlie amount of his claim. Where there is an appearance and a plea of payment, and at the trial no proof were given on either side, there would be a j ulg- ment for the plaintiff for nominal damages. AViLKiNS, J. By our Practice Act the phiintifF's particulars are onlv ^0 be taken as admitted, when there is no appearance ciitc red by the de- fendant. When there is an appearance the English rule must prevail. The plea must refer to the re''ord, and nothing but the record. Rule made absolute. WAKD vs. M(I)ONATJ). When a party tnkes iin assignment (if a chonc in action to eniiblc the assifiiicc to briiis; an action under the 18 Vict. cap. '2',], the notice must speeity the exact interest of tlie assignee under the assigninent. The defendant was indebted to Cole ({'■ Gnij for work done on a con- tract, under vdiich they claimed the sum of £1000 to be due to them. Cole & Grey being indebted to the plaintiff in the sum of £;J7.5, assigned this claim to the plaintiff, who., after l)aying himself thereout the sum of WARD vs. McDonald. 423 jt';375, was to pay over the residue to Cole tfe Grey. Fourteen days be- fore this action was brouglit the following notice was served on the plaintiff : — DiTNCAN McDonald. Ksq. Sir, — Take notice that Afcssrs. William Cole and P. F. Grey have assigned to mc all their claim and demand against you, and that I shall require you to satisfy their said demand within four- teen days after the service of this notice, according to the statute in such case made and provided. Yours, dfc., llOBEKT WaKD. There was a verdict for the plaintiff for £150, and a rule nisi to set it aside. Attorney General for defendant. The assignmeu*. is not here, and the argument will turn chiefly on its wording. McGidhj for plaintiff. We have searched everywhere for the assign- nient, which was unaccountably lost at the trial. We have an affidavit of every effort having been made by us to find it, and have also prepared an abstract, verified by affidavit, of its contents. The abstract was ex- hibited some days since to the Counsel on the other side. J. It. Smith for defendant. The assignment was not within the scope of the 18 Vict. cap. 23. That statute never contemplated an assignment of an unliquidated claim, but only of sums certain. The statute intend- ed that there should be an assignment of the entire interest. Here the whole interest was not assigned, for after the payment of the £375 the residue was to be paid to Cole <& Grey. — 18 Vict. cap. 23, § 47. The notice is not in accordance with the terms of the act ; it does not state tlie right of the assignee, nor specify his demand. There is no amount mentioned in the notice.— 18 Vict. cap. 23, § 49 ; 1 Y. & Coll. N. R. 534, 546. McCully. The statute for tlie abolishment of the Court of Chancery, in which these clauses relative to assignments are found, was passed for tlie purpose of enlarging the rights of creditors, and giving them a more easy mode of recovering their debts. The assignee of a cliose in action must in a Court of Equity have brought a suit in the name of the as- signee. — 2 L. C. in Equity, part 2, p. 227. The forty-seventh section of the act means to give the assignee the right to sue wherever Le had the right to maintain an action formerly, either in his own name, or in that of the assignor. If it did not mean to enlarge his rights it had no mean- ing at all ; for when the act abolished the Court of Chancery it made this the Court of Equity, and the plaintiff would iiave had the same rights as 18 421 NN'ARD vs. McDonald. he would have had in that Court without this section. This is an as- «ip;nmcnt of tlio entire interest. — 5 M. &; W. 402 ; 2 L. C. in Equity, 2;'.2, 235; i;3 M. ^ W. 79tJ ; 11 M. & W. 81. J. \V. Jiitclnr. The notice was sufficient. 'J'lic act required notice of the demand assi{>iie(l, and of the party to whom it was assigned. The demand was every claim that Cole d: (h-ei/ had against the defendant ; the assignee was the plaintiff. It is contended that when an assignment is made for the benefit of numerous creditors, that the names and amounts of their, ciaims should be s))ecified in the .;otiee. Attvrii(}j (icrural. Tlie word demand in tlic act means the real de- mand, and not the nominal one. It is contended that tlio same notice will be sufficient when the plaintiff's debt was .£;'jOO, and the amount as- •signcd only £100, when the debt was £yOO and the amount assigned £1000, and where the assignee has no beneficial interest himself. But is that the legal construction of the act ? The Counsel for the plaintifi" confuses the right to sue with the beneficial enjoyment. Interest in the statute does not mean the right to sue, but beneficial interest. Cole rf; Orey had an interest in the balance which they might have assigned ; it is true they could not have given the right to sue for that balance, for they had already parted with that right. This assignment was simply a .snciirity for the payment of £;J7.> : it was even less than a mortgage. The entire interest was not therefore assigned, and the notice did not specify what interest was assigned. IIam.iburtox, C. J. The notice is not sufficient as regards the as- .signment of the entire intirest. I am very much disposed to take the same view as the Aflonivy (hnwral. W: T»T.TSS, J. I do not tliiidi the notice is what tlic statute contemplated. The words in the act " specifying his demands thereunder," must mean that he shall specify to the i)arty his real claim, ('olc S Grey had here ;t resulting trust in two-thirds of tlie debt. There is good reason too for the amount being so specified, lor as in this case the defendant might find it much easier to settle with Cule it- (ifey for the balance than with their assignee. The notice is not correct, for it states the whole claim to be conveyed, when in fact Cole vall over a portion of this eastern channel. When tlio wall was first erected, and until the year 1855, no obstruction seemed to have been oc- casioned to the working of the mill. In December, 1854, there was a heavy freshet, and the bridge was carried away, and part of the material of which it was composed was deposited in the main channel. The de- fendant's wall, /liich was taken down in 1852, was again erected in the spring of 1855, and from that time the plaintiff's mill had been occasion- ally obstructed. There was a verdict for the defendant, and a rule nis>. to set it aside. Silns Morse. The wall when originally built occasioned no vj')struc- tion, and no action can lie against the defendant for re-building it, be- cause in the meantime something has occurred which renders it an ob- struction. The iilaintiff ought to liavc shewn that the act of the defend- ant was the sole cause would an action lie against him ? WiLKiNs, .7. It is, in effect, making the defendant liable for an act of God. The rest of the Court concurring, the rule was made absolute. TEED vs. BEEBE. tt is not essentially necessai^ that the writ in trcsiwss should describe all the boun- daries of the plaintiff's land. Under a plea of a riglit of way, where evidence was received of way of necessity, it is too late to object after the trial that such evidence was not receivable. This was an action of trespass. The writ only set out the north-west and eastern bounds of the plaintiff's land. Plea — a right of way. Re- plication — no right of way as alleged, and a new assignment of trespass extra viam. Verdict for plaintiff. A rule iu'd for a new trial. J. R. Smith in support of the rule. There are only two boundaries described in the writ — the eastern and northern boundaries — and not all the boimdaries, as the Practice Act requires. [Bliss, J. Is that ground for a nonsuit ? The plaintiff is contented with the description he has given, and you do not object.] [Dodb, J. It would have been ground for a nonsuit if the bounds had not been proved as laid.] [Bliss, J. And even then he might have applied at the trial and got leave to amend.] We have a way of necessity. [^Attornoj/ (icnoral. There is no such plea. The only pica is that of right of way.] [Bliss, .1. Our practice requires you to abbreviate, but does not permit you to omit. It is not .necessary to state all the circumstances which render it a way of neces- sity, but you ought to show whether you go for a way by grant or a way of necessity.] [Wilkins, J. There is a great deal of law under the old style of pleading, though there might be much verbiage, — it is only the latter that is abolished.] That objection was not taken at the trial, and McARTHUR vs. McGILVRAY. 427 the evidence was taken chiefly upon thi i point. [Bliss, J. Then it will not avail now. Even at the trial, if I would have allowed a new plea to have been put in raising the question, as I would a new count to be add- ed to the declaration.] Rule discharged in consequence of the failure of proof of defendant's title to the land for which he claimed the right of way. M( AllTHUll vs. McGILVllAY. When A. purchased lands subject to claim of dower, and mortgaged in fee to B., lield that writ of dower would not lie against A. This was an action of dower. Plea — " that defendant was not the heir to, or freeholder of, the lands," «&;c. Verdict subject to the opinion of the Court. A. McArthur, the husband of the plaintiff, in his lifetime, gave a deed of the land in question to his son, who sold to Jane McDougall. In 1854 Jane McDougall sold to the defendant, and took a mortgage in fee for a part of the purchase money. J. W. Ritchie for defendant. The action ought not to have been brought against the mortgagor, but against the person who is tenant of the freehold. — Petcrsd. Abr. 485 ; 2 Saund. 43 ; 1 Rop. Hus. «&; Wife, ,'^54, 389 ; 1 Cru. Dig. 179 ; 1 Hill on Real. Pro. 414 ; Park on Dower, 265. Attorney General. There ought to have been a plea of abatement for the non-rejoinder of the mortgagee. The mortgage is in fact only a se- curity for money ; and if instead of having been in fee it had been for a term of years, the present objection would not have arisen. The mort- gagor is in fact the person immediately interested here. E. Harrington. The true tenant is the projjcr person to assign dower. —Rev. Stat. p. 397, § 1 ; Co. Litt. 34, b. ; 2 Cruise Dig. 113 ; 12 Mass. R. 485 ; 16 ib. 53. Halliburton, C. J, defendant. The verdict in this case must be entered for th« A T C n A M B E R S . Jan. 11, 1859.— Before Biass, J. CHIPMAN r.s. SHAW. Wlion the plaintiff in his particuhirs omittcil to give defendant credit for a payment, niid thus claimed a larger balance than was actually due, the defendant is not justitie. A subsequent attacher is not entitled to move to set aside a previous at- tachment for an informality in the affidavit. — ^''ail^ v. Macartney 107 «. An attachment may issue for an equitable claim.— AwsA v. Macartney. IfiT 7. The Sheriff's return must state positively that the goods attached are the goods of the absent iXcbiov.—Ratchford v. Chipman 28r> 8. The debts of an English bankrupt cannot be attached after the Jiat of bankruptcy. — Fraser v. Morrow 282: M A party leaving the Province for a temporary purpose, his fiimily being still resident here, is not an absent debtor within the meaning of the act.. — Starr v. Muncey 244 10. The Sheriff may amend the return to his yivit.—Murison w Boyd 247 _ 11. An attachment cannot be issued for unliquidated damages ; and when such a claim is united to one for which that process would lie,, it will invalidate all the proceedings.— Jlfurwo/i v. Murison 262 INDKX. AI5SKNT DKHTOR. Paj,,. 1. Wlicn u ileti'iiiliiut is oul (if the Province the Court will not grant Iciive to enter a KUjrn<'Mtion on tiie record of ii jmlgnient more thiin six yvuvtt olil witlioiit first onlerinp the rule to he published for i]0 days in the lloyal Ga/ette. — Keith v. Vuninmjhum W'.i AMKNDMMNTS \iw. IMLVCTUM:— 2-:!. .«.' APl'EAIX 1. WJien til.' iiiii^if^tiiite lieCnre whom the case was trieinjj; the Umd said it was all right, the apj^Uant will he entitled to his appeal, tiiough he has not made the affidavit retpiired hy law.— .Wf tfi/y v. Mi- k'liy "i'l ArrniTKATTON. 1. When a statute ilirccts that each party shall choose an arbitrator, and the two so selected shall choose a third, and the thret; so appointeil shall de- termine the matter, it is sufficient if, after the two have disagreed, they iihall appoint u third. — In re Kenny If 2. When arbitrators arc iHrected to be sworn before a magistrate, one of them being a Justice of the Peace may administer the oath to the others. — lb ] J n. M'hen a statute directs that in case of di.-agrecment arbitrators are to be appointed to determine the matter in controversy, no action will be for a matter within the scope of the act. — McKenzie \. McKiiy -Vll 4. Arbitrators areftincti officio after having once nuide their award. — San- ford \. Sanford 2lM\ AWARD. I. It is nut necessary to move for leave to enter up judgment on an awimt nnder a rule of reference. — Graham v. Graham 77 '»'. In moving to set aside an award the rule nini must contain the objections. — McDonald v. Marmand 7'.* 3. When the submission gives authority to two, the thrc« arbitrators neetl not be present when the award is signed. — Purdy v. Burbridge I'l') 4. An award cannot be set aside by the arbitrators after having once been signed by them. — Sanford v. Sanford 20t> f). An award deciding the main question and stating that the arbitrators re- fuse to decid<> on an immaterial one raised before them, will be supported. —Salter ^ Full «f't» AS81«8MENT. 1. Where a Jury as.se.ss on a wrong principle the Court will set aside thc^ assessment. — Fencrty v. County of Halifax 41'i INDEX. IJATLEK. P„Ke 1. When 11 perwiii hires ii luirHP with a wiigjroii sciitoil for two jwrsonM (iiul takt'H tliree, he Ih UuhU' iw fin- ii iniHiisor if the Iioi'mc lUea. — Casvy v. Archibald 4 Hir-T-S OF KXCIIA_N(JK vii.k PIlOMISaoUY NOTKS. IJOUNDARY. 1. Uoiiniliirii-s fixcii by iMrioiniiip; proiirietoi'M, tlu)Up;h iiicoiiHi.Htent with their (h)C»nneiit«i7 titli-, will not be ilixturttetl. — IVooi/lniry v. (Jates '2'>'> '2. lt(iiin-ing an action in his own name under 15 Vict., cap. 28, the notice to the debtor must sjiecify the interest, of the assignee. — IVard v. Mc Donald 422 ■< •<.)NTRA(T. ] . When a party is unable to perforin his contract for want of a suificient substratuiii, he cannot claim for the work and labor done ty him in at- tempting to complete it. — ///// v. Fruser 2'.i4 e()RP()R.V.TION. 1. A grant to "The (Jovernors, President and Fellows of King's Ciillege, at Windsor, in the Province of Nova Scotia," is prima facie a grant to " The Governors of King's (College, Nova Scotia." 100 CO-PARTNERS. ]. One co-partner may sustain an action against his co-partners for being excluded from the partnership work while the ' 'crk is in progress 57 INDEX. CO-TENANTS. l-ag.- 1. One tcimiit in cmninon cannot inaiutjiiii au action for trespass against IiIm co-tenant.— ^//jo// \. Smilh ;;:!« 2. When ft deteudant in an action of trespass pleudcil in justification an ex- clusive possession and gave evidence of a joint possession only, the Court refused to disturb a verdict for the plaiiititt". — Moore v. Han nan 2'Jl COSTS, viPE PRACTICE. DAMAGES. 1. In an action by one partner against his co-partner for ''eing excluded from a work still in progi'ess, the measure of damages will be the profits that might reasuri.iVily be expected to result from the undertaking. — Gram V. Creelman ■'•'! 2. When an article is bought for the purpose of being sliip[ied to a foreign market and is found not equal to the warranty the damages will be tlie difference between the value of the article twtually sent and an article of the quality warrtinted. — Wier v. Benset 1 7)S 3. When damages are assessed under the Railway act on a wrong prin^,',ple, the Court Avill set aside the assessment. — Fenerly v. County of Jhdifux . 412 4. Whex'e lands are bargained and sold the damage is the price for which they are sold. — Lynch v. Ring 41S 5. When the plans for a contr.act represented a suflicicnt substratum where none in fact existed, the party contracting could not, where tliei"? was no fraud, recover for work done after the fact was di.scovercd. — Hill v. Fraser 2'J4 DEEDS. 1. The subscribing witness to a deed need not be produced if other evidence of the signature of the parties can be obtained. — tVooda v, Fra-iT 1H4 2. When A and B as trustees, conveyed to themsclvrs ami five others, held tbat their dc. A Sheriff's deed, prima facie, gi\es the title of tho person whoso interest it purports to convey, and where p ,rt of the proceedings are given in evidence, tlie party claiming uwder it is tiot forced to go on and show tiiat all the proceedings were regular. — Sutlurtund v. VVhidden . . • 4 iO 4. 'When ihe frtrVj,- m:).kiiig the deed is out of possession, the laud being held adversely !iy anothe>-j the deed conveys noHiing. — .Miiyi'lte v. Huhert.. . . 420 0. Ti.e delivery of a deed gives constructive possess'nm, though the vendor rcD'.a.in8 in actual possession. — ^imjison v. Foolc 240 DONATIO MORTIS CAUS.\. 1. The delivery of th.: kty "f a chest containing money with the words " AU the money in tliat eliest I give to you," is not sufficient.— /?! n- Hitrtmun '•*" ■^ ■. ^"^ " . ■■ ' * INDEX. t< DOWER. . . . . . 1 1. TliP nctiou for di.wor will not lie ii.;;'iimsta mortga^^or who hal piirchascil subject to rijjlit of (lower. — McArthur v. Gilvray 427 EVIDENCE. 1. A record mil in ii previous action betwcn the same parties only filed hiilf an hour before it was tendered was not received. — Murdoch v. Grant.. . lOK 2. An allottment bo(f' and ancient plana of a township, tliouj^h purportinfj; to be copies when recognized by the proprietors as autlientic, will be re- ccivc57 2. ViDK PLEADING. EXECUTORS. 1. The authority of executors selling real estate under an order of the Gov- ernor in Council cannot be inipu}rne HIGHWAYS vrin; WAYS. IDENTDT. 1. A grant to " The Governors, President, and Fellow.^ of King's College, at Windsor, in the Province of Nova Scotia," is primi; facie a grant to " The Governors of King's College, Nova Scotia." — Governors of Kim/s CoU^ffc V. McDonald IOC. 2. When the party served with process bears the .same name with the person to whom goods are ilelivered, it will be prcKumcd that it is the same person liO'i INJUNCTION vii.E PLEAPrXG— 4. INDEX. INVKNTORY. Pag« 1. A Judge of Probate has the power of causing an inventory to bo amend- ed after )iearing evidence, but cannot order the administrator to swear to the amended inventory. — In re Ralston Estate V.<^t FiNSUlUNCE. 1. W lien a cargo of salt fish was damaged by salt water, and tlic vewsel was forced into a port of refuge from whence tlie cargo could not reaoii its port of destination '•■Itiioul being totally dostroytnl, the owners may abamion and claim for a total los.". — Fairliaiiks v. Union .Marine In- surance Company 67 2. When the policy has a condition recniiring a certificate from the magisti-atc most contiguous to the fire, a certificate signet! by a magistrate ten miles distant, while there were others living within a mile of the place where the fire occurre'2 0. When a puisne mortgagee forecloses the Court will refer it to a master to repoi't the amount due to the prior incumbrances. — Creiyhton v. Moore. 2'27 MlfKDKl?. 1. When the verdict was, " guilty of murder, with a recommendation to mercy, as there is no evidence of malice aforethought or premeditation," the Court thought it too ambiguous and uncertain to justify their enter- ing any judgment upon it. — Queen v. Ilealey 8:]l NOTICE OF DISHONOR viuk PROMISSORY NOTES. NOTICE TO QUIT vide LANDLORD AND TENANT. POOR, OVERSEERS OF THE POOR 1. Tlie Overseers of the Poor are not liable for money due by their predeces- sors in office. — Burr iff v. Overseers of Poor Yarmouth Ifil PLEADING. 1. The defendant in cquitaWe cases is not compellml to answer under oath on the ordinary writ. — McPhee v. Carman R 2. The mode of framing issues in equitable cases. — Ilumfhry v. .Tones. ... 7 3. The plea of payment and satisfaction is a false plea when there has only been a part payment. — Boudrot v. Donovan 78 4. When an injunction is taken out to prevent the performance of an act it ought not to require the party enjoined to come in and plead. —Beamish T. City of Halifax 227 5 When the defendant puts in a plea admitting the plaintiff's cause of action but pleading an immaterial issue, on which the plaintiff joins issue and obtains a verdict, the Court will not award a re-pleader but will allow INDEX. plaintiff to enter up judgment on the confession. — Attorney General v. Paffc 202 6. When the plea filed was subscribed by the defendant but the copy served was not, this, though irregular, will not render the plea a nullity. — Crosskill v. Allison 288 7. When the defendant in an action of trespass pleads that he did not enter plaintiff's close, and that the land and soil were not the land and soil of the plaintiff, he cannot prove that the plaintiff was not possessed under those pleas. — Grotto v. Furish 2U1 8. In ojectmcnt, when the defendant's plea purports to defend for part of the land claimed by the plaintiff but gives a description of a different lot, the l>)aintiff will be entitletl to judgment, and. if done for the purpose of mis- leading, the attorney may render himself personally liable for costs. — Hadlcy v. Sherman 410 '.». Wiien the plaintiff wishes to avoid the effect of the defendant's pleas by new matter he must reply. — Smith v. Stewart 417 ID. The plea of payment does not admit tlie amount of the particulars en- dorsed on the plaintitfs writ. — .MuUuUy v. Dillon 420 11. In trespass it is not essentially necessary thrit the plaint'*^ should set out all his boundaries, those in dispute will be sufficient. — Tccd v. Beebc. . . 426 12. Where the plaintiff has omitted to give credit for a payment the defend- ant is not justified in putting in a plea of payment without, at the same time, confessing the amount really due. — Chipman v. Shaw 428 1;!. In replevin, if the plaintiff proceed to trial without pleading to the avowry or cognizance, it will be a mistrial. — Skinner v. Clarke 18!> 1'RA(1TI0E. 1. Appearance. Notice of appearance is not necessary when the defendant appears in person. — Crosskill v. Allison 288 2. Appeal. In an appeal from the Court of Probate the appellant will not be restricted to the grounds taken in that Court. — In re Estate oj Ral- ston -5 !'.. On an appeal under the License Act the Supreme Court will allow an amendment to be made at the ti-ial. — Taylor v. Marshall 10 4. Appeals under the River Fisheries ,\ct are to the Sessions and not to the Supreme Court. — Gouyh v. Morton 10 5. After judgment on an appeal for noiv-appearance of appellant if he can shew a sufficient excuse he will be allowed to come in and defend within a year. — Doyle v. Timmins 288 6. Award. It is not necessary to move for leave to enter up judgment on an award under a rule of reference. — Graham v. Graham 77 I 4i; 42(» 4'2H IH'.t INDEX. Page 7. Award. In moving to set aside an award the rule nisi must specify the objections on which it is intended to rely. — McDonald v. Marmaud,. . . 79 8. Capias. When the afiidavit on which wi'it is founded is insufficient the rule nisi ought to ask the order to be set aside and not the capias. — Murphy v. Trenholm 228 9. Capias. The affidavit cannot be objected to unless it is mentioned in the rule nisi. — lb 228 10. Continuance. The affidavit for a continuance must shew when the wit- ness is expected to return. — Ducaen v. Dunne 13 11. Costs. Though a notice of abandonment of a rule nisi has been given, yet the party against whom it has been obtained mast move for its dis- charge to get the costs. — Swan v. Pryor 1-1 12. Costs. When a rule for an amendment is unsuccessfully opposed, the party obtaining the rule is entitled to his costs. — McKay v. McKay. . . lit 13. Costs. When a verdict for the plaintiff was set aside and he the* discon- tinued, the costs of the trial are not taxable against him. —Moody v. Etna Insurance Company 230 14. Costs. When a plaintiflf unsuccessfully opposes the taking off a default he will be liable for costs. — Morse v. Ckesnutt 234-287 15. Costs. When a declaration suit is brought and the verdict is for less than £5, if the amount have been reduced by a set-otf, the plaintiif is entitled to declaration costs. — McKenzie v. Lent/ 2G8 16. Costs. When a verdict is set aside for misdirection, the party obtaining the rule is entitled to his costs. — Fraser v. Kirk 290 17. Equitable Suits. The Court will compel a party to speed his cause in an equitable suit. — Seely v. Gilbert 14 18. Executions. To entitle a party to issue an execution on a judgment more tlian 20 years old, there must have been an execution issued and return- ed within a year after the judgment. — White v. Dimock 234 19. Execution. It is not necessary that there should be an endorsement on, the execution of the mode in which it is to be executed. — Sutherland v. W hidden 410 20. Injunction. When an injunction is intended to prevent an act from- being done it ought not to require the party enjoined to come in and plead. — Beamish v. City of Halifax 227 21. Judgment. When the defendant is out of the Province the Court will not grant leave to enter a suggestion on the record of a judgment more than six years old without first ordering the rule to be published for 80 days in the Royal Qazattt.— Keith v. Cunningham 149 20 INDEX. 22. A*eto Trial, A rule nisi for a new trial may be amended by the addi- tion of a new ground. — Elliott v. Smith H 28. JVew Trial. The rule nisi for a new trial need not specify the grounds. — Moody V. Etna Insurance Company 173 and Stanford v. Inland JVaviijation Company 185 24. J\rew Trial. The Court will grant a new trial on the ground of a sur- prise, when defendant unexpectedly denied ever having signed an agree- ment which was proved to have been lost. — Sedy v, Purdy 414 25. Recognizance. Entering up judgment on a recognizance. — Queen v. Thompson '.> 26. Receiver. Tlie Court will not appoint a receiver except when a suit has been mstituted. — Ex parte Peillon 405 27. Verdict. Wlicn the verdict is for a larger sum than that claimed in the writ, the plaintiif must remit the excess or get a new trial. — Mulhall v. Barss 40 28. Writ. When a summary writ was returned unserved, and after the lapse of a year an alias writ for the same cause of action, laying the damages, however, at more than £20, was sued out, neither the lapse of time nor the variance in the amount of damages will destroy its charac- ter as an alias. — Smith v. Gillies 361 ¥/ PROMISSORY NOTES AND BILLS OF EXCHANGE. 1. When the consideration of a promissory note was the purchase of land of which the maker took possession, though there was no written agreement for the sale of the land, and the consideration was not expressed on the face of the note, the maker cannot set up as a defence the want of consi- deration. — Gray v. Whitman 157 2. When a note was given as a part payment of a purchase of land under a verbal agreement of sale, the plaintiff cannot recover for want of con- sideration. — Black V. Gesner 157 3. One of several executors can endorse a note made by the testator. — Jllmon y. Cock: 2G5 4. A promissory note made in this Province, but payable in St. John, N. B., is a foreign bill, and requires to be protested.— jDc/anei/ v. Hull 401 5. When a bill requires to be protested, the notice of dishonor must state that it has been so protested, or the indoreer will not be liable. — Delaney V, Bull 401 REVERSIONER. 1. An action will lie by a reversioner for an obstruction to a wharf.— Creamer V. Hot/an. 2o( INDEX. SEA SHORE. 1 I'iiL'e The owner of land on a searsliore or on a navigable river is entitle*! to free ingress and egress. — Collins v. Barss 1281 TIME, COMPUTATION OP. 1. When fourteen days are given to appear and plead, the plaintiff is not entitled to sign judgment on the fourteenth day. — Masters v. Phinney. . 42!t TRESPASS. 1. To maintain trespass f^r cutting wood, the plaintiif must shew an actual possession by cultivation, or that the land is within the boundaries de- scribed in his documentary title. — Cameron v. McDonald 240 USURY. 1. Where interest is alloAved on both sides of on account, and interest is changed into principal once a year, and both parties have assentetl to that mode of dealing, it cannot afterwards be set up as usurious. — Uniucke V. Burbridge .57 VENDOR AND VENDEE. 1. Where money had been paid as eai-nest money, under the impression that it would be sufficient to bind a bargain for the sale of real estate, and it was subsequently agreed to rescind the agreement, and nothing was said respecting the money so paid, it may be recovered back. — Campbell v. ■Henderson 385 WARRANTY. 1. When a bought note specified the article sold to be No. 1 mackerel, it is a wai-ranty that they are mackerel of that quality. — Wier v. Buselt 178 WAREHOUSE-MEN. 1. If a warehouse-man receive a delivery order for goods in his possession, and retain it without giving notice that the party giving the order had previously transferred the goods, he will render himself liable. — Twin- intj V. Oxley 18 WATER^COURSE. 1. When damages are claimed for an obstruction to a water-course, to entitle plaintiff to recover lie must shew that the whole damage resulted from the act of the defendant. — Foster v. Fowler iHC} WAYS. 1. A party dedicating a way to the public may retain to himself the right of placing a fn'iice and gate across the road at certain seasons of the year. — Bartlett v. Pratt 11 2. Commissioners cannot lay out a road substantially different ft-om tliat for which the freeholders have petitioned. — Queen v. Chij)man 160 hi b. ^^^mm INDEX. rage .'i. fVaij of JVecessity. The right to a way of necessity docs not cease by tiie subsequent construction of a road by which there is less convenient access to the land. — Gardner v. Thome 27>S 4. Way of JVccessity. A tenant by courtesy of one lot being the owner of the adjoining lot, through which ilicre is a convenient access, cannot claim in himself a way of necessity over another lot. — Ratchford v. Klnnear 40" 5. The magistrates who are to decide whether the return to the precept is to be confirmed are disqualified from acting under the precept. — Queen V. Chipman 2U G. To establish a pent way, there must be not only a confirmation of the proceedings by the sessions, but an actual payment of their damages to the persons through whose land the way runs. — Cameron v. McLean, . 32^ WITNESSES. 1 . The parties in a cause are entitled to witness fees when they attcndoil solely for the purpose of giving evidence in the suit. — JVeville v. Garrett. 4 2. De bene esse. A party in a cause about to leave the Province may be examinetl de bene esse. — Barnuby v. Full 2ol h. i* Page e by aient .... 273 er of nnot d V. .... 407 pt is ueen .... 21» Mhe ;8 to m.. 829 ndcd rctt. 4 y be . ... 231.